                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-2425
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

JOSE VALLEJO,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
              No. 02 CR 432—David H. Coar, Judge.
                          ____________
      ARGUED MAY 21, 2004—DECIDED JUNE 29, 2004
                    ____________




 Before BAUER, KANNE, and DIANE P. WOOD, Circuit
Judges.
  BAUER, Circuit Judge. On December 19, 2003 Jose
Vallejo was convicted of two counts of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1)
and found to be an “Armed Career Criminal” as defined in
18 U.S.C. § 924(e). During the sentencing process Vallejo
received an enhancement under U.S.S.G. § 4B1.4(b)(3)(A)
for possessing the firearms in connection with crimes of
violence. He was ultimately sentenced to a term of 262
2                                                No. 03-2425

months’ imprisonment. Vallejo appeals numerous aspects
of his sentencing; we affirm the holdings of the district
court.


                       Background
  Vallejo’s convictions arise from two incidents occurring on
August 24 and 31, 2001 in Chicago, Illinois. The incidents,
briefly, are as follows. On August 24, Vallejo— together
with several others—followed Anthony Ocasio as he left
work. Ocasio drove to the home of Julio Ortiz, where a
confrontation erupted. Vallejo pointed his gun at Ocasio’s
friend, Ortiz, and hit Ocasio in the jaw with his gun; he also
broke the windshield of Ocasio’s car. Vallejo fired one shot
in the air as he was leaving. Ocasio and Ortiz called 911
and described the incident to the responding officer.
  On August 31, Samira Jahovic and Marco Guardiola were
out walking with their two young children. Vallejo was in
his car with two other men; as they drove past Vallejo
shouted threats at the family while brandishing his gun.
Jahovic called the police and relayed information con-
cerning Vallejo’s car and license plate. Shortly thereafter
officers pulled over Vallejo; a subsequent search of his car
revealed two .9mm semiautomatic firearms.
  On December 19, 2003 a jury found Vallejo guilty of two
counts of being a felon in possession of a firearm. The dis-
trict court judge also found that Vallejo was in violation of
the Armed Career Criminal Act (“the ACCA”) on the basis
of his prior convictions for armed robbery. During his sen-
tencing, the judge applied an enhancement to Vallejo’s sen-
tence for possessing the firearms in connection with crimes
of violence (the assaults described above). In all, Vallejo was
sentenced to serve 262 months’ imprisonment.
No. 03-2425                                                  3

                        Discussion
  Vallejo does not contest the facts on appeal, rather he
takes issue with several aspects of the steps taken by the
district court in arriving at his sentence of 262 months in
prison.


I.   U.S.S.G. §§ 4B1.4(b)(3)(A) and (c)(2) and Uncharged
     Conduct
  Vallejo first asserts that the district court improperly
based his sentence enhancement under U.S.S.G.
§§ 4B1.4(b)(3)(A) and (c)(2) on conduct that was not charged
in the indictment, resulting in a significantly higher
sentence than he would have otherwise received. We review
the district court’s decision on this question de novo. United
States v. Larkin, 171 F.3d 556, 558 (7th Cir. 1999).
  United States Sentencing Guidelines § 4B1.4(b)(3)(A)
provides that the defendant’s offense level will be increased
to 34 if, “the defendant used or possessed the firearm . . . in
connection with . . . a crime of violence.” The Sentencing
Guidelines go on to describe a “crime of violence” as, “any
offense under federal or state law, punishable by imprison-
ment for a term exceeding one year, that . . . has as an
element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G.
§ 4B1.2(a). In this case, Vallejo’s actions on August 24 and
31 constituted aggravated assaults under Illinois law. 720
ILL. COMP. STAT. 5/12-2 (1993). Vallejo points out that he
was not actually charged with the crime of assault.
  The Sentencing Guidelines provide direction for what
conduct should be considered when applying the different
enhancements. Vallejo cites to our 1996 decision in United
States v. Talbott, 78 F.3d 1183, 1189-90 for the proposition
that a court must consider only charged conduct when ap-
plying the enhancement for possession of a firearm in
4                                                 No. 03-2425

connection with a crime of violence. We decline to consider
the impact of Talbott in this case. After Talbott was issued,
the relevant provisions of U.S.S.G. § 4B1.2 were amended.
Pertinent to Vallejo’s particular enhancement, the 1995
version of the Sentencing Guidelines, Application Note 2 to
U.S.S.G. § 4B1.2 had explicitly directed: “Under this
section, the conduct of which the defendant was convicted
is the focus of the inquiry.” Our decision in Talbott relied
heavily on that language; post-Talbott, that sentence was
removed and it has not since been replaced with any lan-
guage. Application Note 6 to U.S.S.G. § 1B1.3 sheds light on
the effect of this alteration; it directs that, when a judge
considers “relevant conduct” for sentencing purposes: “A
particular guideline . . . may expressly direct that a par-
ticular factor be applied only if the defendant was convicted
of a particular statute . . . . Unless such an express direction
is included, conviction under the statute is not required.”
Cf. United States v. Rutledge, 33 F.3d 671, 673-74 (6th Cir.
1994) (upholding enhancement for possession of a firearm
in connection with a crime of violence when defendant was
not charged with assault; citing to Application Note 6 to
§ 1B1.3 as support for its interpretation of the guidelines).
  With this direction in mind, we consider U.S.S.G. § 4B1.2.
Application Note 1 to this section, as it currently reads,
categorizes types of behavior falling within the parameters
of “crimes of violence,” thus meriting the enhancement:
    “Crime of violence” includes murder, manslaughter,
    kidnapping, aggravated assault, forcible sex offenses,
    robbery, arson, extortion, extortionate extension of
    credit, and burglary of a dwelling. Other offenses are
    included as “crimes of violence” if
        (A) that offense has as an element the use, at-
        tempted use, or threatened use of physical force
        against the person of another, or
        (B) the conduct set forth (i.e., expressly charged) in
        the count of which the defendant was convicted
No. 03-2425                                                   5

        involved use of explosives . . . or, by its nature, pre-
        sented a serious potential risk of physical injury to
        another.
U.S.S.G. § 4B1.2 Application Note 1.
   The Application Note is sufficiently straightforward. In
the first sentence, aggravated assault—Vallejo’s conduct—
is specifically enumerated as a crime of violence. The Note
then goes on to list “other offenses” that constitute crimes
of violence where it discusses some types of charged
conduct. Because the Application Note does not specify that
aggravated assault needs to be charged, it is reasonable—in
light of Application Note 6 to U.S.S.G. § 1B1.3—to conclude
it need not be charged. We hold it was not error for the
district court to consider Vallejo’s actions on August 24 and
31 in determining his sentence.


II. Related Convictions for Purposes of Determining
    Criminal History
  Prior to the events that gave rise to this case, Vallejo had
been convicted of five armed robberies, all committed in
November 1994. In determining his sentence, the judge
added three criminal history points for each conviction,
pursuant to U.S.S.G. §§ 4A1.1(a) and 2(a)(2). Vallejo argues
that the crimes should have been consolidated for determin-
ing criminal history points. Consolidation of the
crimes—Vallejo correctly points out—would have resulted
in fewer added criminal history points. We review the
district court’s determination for clear error. United States
v. Buford, 201 F.3d 937, 942 (7th Cir. 2000).
  Normally, cases are considered consolidated if there is
a formal order consolidating them. That did not happen
here. In the alternative, cases may be consolidated if a
defendant can show “functional consolidation.” Functional
consolidation occurs when there is “a record that shows the
6                                              No. 03-2425

sentencing court considered the cases sufficiently related
for consolidation and effectively entered one sentence for
multiple convictions.” United States v. Russell, 2 F.3d 200,
203-04 (7th Cir. 1993). The burden is on the defendant to
make such a showing. United States v. Stalbaum, 63 F.3d
537, 539 (7th Cir. 1995).
  Vallejo argues that because sentencing on the cases oc-
curred on the same day, and because he was ordered to
serve concurrent sentences, they were functionally consoli-
dated. While this may have presented a close case at the
district court level, when reviewing for clear error we have
no difficulty affirming the award of separate criminal
history points. We have previously held that an award of
concurrent sentences on the same day may not be sufficient
to show “functional consolidation.” Russell, 2 F.3d at 204.
Here, each case had a different docket number; the judge
consistently referred to the cases as separate and distinct
rather than lumping them together; sentencing orders were
entered separately for each case. It appears that adminis-
trative convenience was the impetus for sentencing Vallejo’s
robberies on the same day and not a judicial desire to
functionally consolidate the charges. This is enough to
support the district court’s finding that the cases were not
functionally consolidated.


III. Apprendi Arguments
  Vallejo next raises arguments concerning the propriety of
his sentencing under the Supreme Court’s holding in
Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically,
he complains that both the ACCA and his enhancement
under U.S.S.G. § 4B1.4 do not satisfy Apprendi require-
ments that a jury determine the relevant facts. We review
constitutional challenges to the statutes de novo. United
States v. Schaffner, 258 F.3d 675, 678 (7th Cir. 2001).
No. 03-2425                                                    7

   In Apprendi, the Supreme Court held that, “[o]ther than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory max-
imum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi, 530 U.S. at 490. In finding a
violation of the ACCA, the district court judge determined
the fact of Vallejo’s prior convictions for armed robbery.
Similarly, under the Sentencing Guidelines, the judge de-
termined the fact of possession of a firearm in connection
with a violent crime. These determinations, Vallejo con-
tends, exposed him to a greater sentence than allowed
under 18 U.S.C. § 922(g)(1)—the statute under which a jury
found him guilty, prohibiting felons from possessing
firearms.
   A little context is helpful in analyzing this issue. Vallejo’s
sentence was the result of several steps. First, he was
convicted by a jury of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1); that conviction
carried a maximum sentence of 10 years. Next, the sentenc-
ing judge found that Vallejo had also violated the ACCA;
that Act states, in relevant part: “In the case of a person
who violates [the felon in possession of a firearm statute]
and has three previous convictions . . . for a violent felony
or a serious drug offense . . . such person shall be fined not
more than $25,000 and imprisoned not less than fifteen
years . . . .” 18 U.S.C. § 924(e). At that point, the sentencing
range to which Vallejo was exposed shifted from a maxi-
mum of ten years, to a range of fifteen years to life. Next,
the sentencing judge found that Vallejo also qualified for a
sentence enhancement under U.S.S.G. § 4B1.4(b)(3)(A) for
possessing the firearms in connection with a crime of
violence, which raised his sentence to a level 34, which is
punishable by imprisonment of twenty-five years to life.
  Allegations that the ACCA violates Apprendi violations
are certainly not unfamiliar to this Court. We have con-
sistently upheld the ACCA, noting that Apprendi does not
require a jury to find the fact of a defendant’s recidivism.
8                                                     No. 03-2425

See, e.g., United States v. Hendricks, 319 F.3d 993, 1008
(7th Cir. 2003); United States v. Morris, 293 F.3d 1010,
1012-13 (7th Cir. 2002); United States v. Skidmore, 254
F.3d 635, 642 (7th Cir. 2001). Absent a new determination
by the Supreme Court, we decline to revisit this thoroughly-
considered area of the law.
   Vallejo also argues, however, that his enhancement under
the Sentencing Guidelines for possessing a firearm in
connection with a crime of violence violates Apprendi. As
noted above, that enhancement set his sentencing range at
twenty-five years to life. While this presents a slightly more
novel question, the argument is equally unpersuasive. After
he was found in violation of the ACCA, the judge could have
permissibly sentenced Vallejo to life in prison. The district
court judge’s subsequent finding that Vallejo possessed the
firearms in connection with violent crimes increased his
sentence range to twenty-five years to life imprison-
ment—this sentence falls within the range prescribed by 18
U.S.C. § 924(e). Cf. Skidmore, 254 F.3d at 643-44 (finding
a judge could apply an enhancement under U.S.S.G.
§§ 4B1.4(b)(3)(A) and (c)(2) that raised defendant’s offense
to level 34 for possession of a silencer for his gun in a case
where the defendant was an “armed career criminal.”) Since
the application of the Sentencing Guidelines in issue here
is dependant upon Vallejo first being found in violation of
the Armed Career Criminal Act,1 there is no violation of
Apprendi.


IV. Commerce Clause Arguments
  Vallejo next presents a set of arguments concerning sta-
tutory violations of the Commerce Clause. U.S. CONST., art.



1
    U.S.S.G. § 4B1.4(a) applies only to “[a] defendant who is subject
to an enhanced sentence under the provisions of 18 U.S.C. § 924(e)
. . . .”
No. 03-2425                                                  9

I, § 8. To be in accord with the Commerce Clause, a statute
must regulate activities that substantially affect interstate
commerce. United States v. Lopez, 514 U.S. 549, 559 (1995).
Vallejo challenges the constitutionality of 18 U.S.C.
§ 922(g)(1), making it a crime for a felon to possess a
firearm and 18 U.S.C. § 924(e), the ACCA. He also chal-
lenges the constitutionality of the Sentencing Guidelines.
These arguments have been considered by this Court on
numerous occasions. We review these constitutional chal-
lenges de novo. Schaffner, 258 F.3d at 678.
   With regard to 18 U.S.C. § 922(g)(1), Vallejo argues that
the mere possession of a firearm that, admittedly, once
traveled in interstate commerce does not substantially af-
fect interstate commerce. To fulfill its obligations under the
Commerce Clause, 18 U.S.C. § 922(g) has a jurisdictional
element—it states in relevant part: “It shall be unlawful for
any person . . . who has been convicted . . . of, a crime
punishable by imprisonment for a term exceeding one year
. . . to . . . possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign
commerce.” 18 U.S.C. § 922(g). This Court, and our sister
Circuits, have consistently held that, because of its jurisdic-
tional element, 18 U.S.C. § 922(g) comports with the
requirements of the Commerce Clause. See, e.g., United
States v. Bell, 70 F.3d 495, 498 (7th Cir. 1995) (considering
§ 922(q) in light of Lopez and determining the jurisdictional
element rendered the law valid); United States v. Fleischli,
305 F.3d 643, 653 (7th Cir. 2002) (determining § 922(g) does
not violate the Commerce Clause, considered in the context
of the Supreme Court’s decision in Jones v. United States,
529 U.S. 848 (2000)); United States v. Darrington, 351 F.3d
632, 634 (5th Cir. 2003); United States v. Thompson, 361
F.3d 918, 922 (6th Cir. 2004); United States v. Leathers, 354
F.3d 955, 959 (8th Cir. 2004); United States v. Dunn, 345
F.3d 1285, 1297 (11th Cir. 2003). We decline at this time to
10                                                      No. 03-2425

reconsider our Circuit’s holding on this issue. Similarly,
because Vallejo’s violation of 18 U.S.C. § 922(g) is a neces-
sary element of his violation of the ACCA, we also decline
to review the validity of the ACCA at this time.2
  Finally, Vallejo argues that U.S.S.G. § 4B1 violates the
Commerce Clause because the commission of violent crimes
does not affect interstate commerce. Vallejo would have us
review a string of recent Supreme Court decisions stem-
ming from United States v. Lopez, 514 U.S. 549 (1995) and
United States v. Morrison, 529 U.S. 598 (2000) that have
found federal legislation unconstitutional for defining as
criminal activity behavior that did not substantially affect
interstate commerce. Lopez, 514 U.S. at 561-68 (holding
that a federal law criminalizing possession of a firearm
within a school zone violated the Commerce Clause);
Morrison, 529 U.S. at 613-19 (declaring unconstitutional
the Violence Against Women Act because regulation of
gender-motivated crime does not substantially affect
interstate commerce). We decline this invitation. The law is
clear that, although the federal government must have a
commerce nexus to pass criminal statutes (such as the one
under which Vallejo was convicted), the government may
prescribe a sentence for such violation without having to
again show a commerce nexus. United States v. Stowe, 100
F.3d 494, 501 (7th Cir. 1996). Because Vallejo’s enhance-
ment was determined as part of his sentence, the govern-
ment need not show a commercial nexus.
  For all of the above-stated reasons, we AFFIRM the hold-
ings of the district court.



2
   18 U.S.C. § 924(e)(1) states: “In the case of a person who vio-
lates section 922(g) of this title and has three previous convictions
by any court . . . for a violent felony or a serious drug offense . . .
such person shall be . . . imprisoned not less than fifteen years . .
. .”
No. 03-2425                                         11

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—6-29-04
