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

No. 05-2741
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

JEROME KINDLE,
                                          Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
                for the Central District of Illinois.
           No. 03 CR 30020—Jeanne E. Scott, Judge.
                         ____________
     ARGUED JANUARY 10, 2006—DECIDED JULY 5, 2006
                    ____________

  Before BAUER, RIPPLE, and WOOD, Circuit Judges.
  BAUER, Circuit Judge. Jerome Kindle pleaded guilty to
possession of five or more grams of cocaine base with the
intent to distribute and possession of a firearm in fur-
therance of a drug trafficking crime. He appeals the district
court’s finding that he qualified as a Career Offender and
contends that the court should have used a lower Sentenc-
ing Guideline range. We affirm the decision of the district
court.


                       I. Background
  On March 6, 2003, a federal grand jury charged Jerome
Kindle with four counts of distribution of cocaine, 21 U.S.C.
§ 841(a)(1), (counts one through four); one count of posses-
2                                                  No. 05-2741

sion of cocaine with intent to distribute, 21 U.S.C.
§ 841(a)(1), (count five); one count of possession of five or
more grams of cocaine base with the intent to distribute, 21
U.S.C. § 841(a)(1), (count six); one count of possession of a
firearm by a felon, 18 U.S.C. § 922(g)(1), (count seven); and
one count of possession of a firearm in furtherance of a drug
trafficking crime, 18 U.S.C. § 924(c), (count eight).
  On April 30, 2004, Kindle pleaded guilty to counts six and
eight. His guilty pleas were entered pursuant to a written
plea agreement. While Kindle waived his right to appeal the
sentence, he expressly reserved the right to appeal Judge
Jeanne Scott’s finding that under U.S.S.G. § 4B1.1 he
qualified as a Career Offender. He also expressly reserved
the right to appeal any upward departure from the applica-
ble Sentencing Guideline range.
  The Pre-Sentence Report (PSR) determined that Kindle
was a Career Offender under U.S.S.G. § 4B1.1 with a
criminal history of category VI and an offense level of 37.
The district court found that as a Career Offender, Kindle’s
offense level was 34, which included a three-point down-
ward adjustment for accepting responsibility under U.S.S.G.
§ 3E1.1. Judge Scott also concluded that Kindle’s criminal
history category was VI. Based on his prior record, Kindle’s
criminal history point total was 15, placing him in criminal
history category VI regardless of a Career Offender finding.
The resulting advisory Sentencing Guideline range for an
offense level of 34 and criminal history category VI was 262
to 327 months on count six and a consecutive 60 months on
count eight.1 The government recommended a 20 percent
reduction from the low-end of the Guideline range and a
sentence of 257 months in prison. But, employing judicial
discretion and noting Kindle’s cooperation with authorities


1
  The district court noted that the United States Sentencing
Guidelines are advisory, pursuant to United States v. Booker, 543
U.S. 220 (2005).
No. 05-2741                                                 3

that included substantial personal risk, Judge Scott instead
concluded that a 30 percent departure from the low-end of
the Guideline range was appropriate. She applied the 30
percent reduction to the total sentence, reducing Kindle’s
time in prison from 322 months to 225 months. The
court further sentenced Kindle to eight years of super-
vised release and ordered him to pay a $200 special assess-
ment. The court granted the government’s motion to dismiss
the remaining counts of the indictment. The district court
sentenced Kindle on June 3, 2005, and he filed a timely
appeal.


                       II. Analysis
  The main issue for our review is whether the district
court erred in finding that Kindle qualified as a Career
Offender under U.S.S.G. § 4B1.1. Kindle specifically appeals
the district court’s reliance on a 1996 conviction for second-
degree burglary in Missouri. He argues that because
neither the charging papers nor his guilty plea from the
1996 conviction state that Kindle had burglarized a “dwell-
ing,” his second-degree burglary conviction should not be
considered a “crime of violence” and therefore he should not
be labeled a Career Offender under the Sentencing Guide-
lines.
  Whether the district court erred in sentencing Kindle as a
Career Offender is a question of law that we review de novo.
United States v. Hoults, 240 F.3d 647, 650 (7th Cir. 2001).
Similarly, the question of whether an offense constitutes a
“crime of violence” for purposes of sentencing is also subject
to de novo review. United States v. Bryant, 310 F.3d 550,
552 (7th Cir. 2002).
  The PSR suggested that Kindle should be considered
a Career Offender for sentencing purposes because he had
two prior felony convictions for “crimes of violence” as
defined in U.S.S.G. § 4B1.2, namely, a 1990 involuntary
manslaughter conviction and a 1996 second-degree burglary
4                                               No. 05-2741

conviction. Under the Guidelines, a defendant is deemed a
Career Offender if
    (1) the defendant was at least eighteen years old at the
    time the defendant committed the instant offense of
    conviction;
    (2) the instant offense of conviction is a felony that is
    either a crime of violence or a controlled substance
    offense; and
    (3) the defendant has at least two prior felony convic-
    tions of either a crime of violence or a controlled sub-
    stance offense.
U.S.S.G. § 4B1.1(a).
  To clarify U.S.S.G. § 4B1.1(a)(3), we must look to the
definition of a “crime of violence” under the Guidelines. A
“crime of violence” for Career Offender purposes is defined
in U.S.S.G. § 4B1.2, and provides:
    (a) The term “crime of violence” means any offense
    under federal or state law, punishable by imprisonment
    for a term exceeding one year, that—
        (1) has as an element the use, attempted use, or
        threatened use of physical force against the per-
        son of another, or
        (2) is burglary of a dwelling, arson, or extortion,
        involves use of explosives, or otherwise involves
        conduct that presents a serious potential risk of
        physical injury to another.
U.S.S.G. § 4B1.2.
  Kindle focuses his appeal on the elements of his second-
degree burglary conviction and whether it can be considered
a “crime of violence.” Specifically, Kindle argues that the
Missouri Second-Degree Burglary Statute, which defines
the burglary as “knowingly enter[ing] unlawfully or know-
No. 05-2741                                               5

ingly remain[ing] unlawfully in a building or inhabitable
structure for the purpose of committing a crime therein,”
foreclosed the district court from finding that the second
offense constituted a crime of violence because the burglary
of a dwelling is not an element of the offense. MO. ANN.
STAT. § 569.170 (West 1996). Because in Missouri, inhabit-
able structures include both dwellings and non-dwellings,
Kindle contends that the district court made an improper
logical leap in using the terms “inhabitable structure” and
“dwelling” interchangeably. Further, Kindle argues that at
sentencing the Judge was not permitted to draw any
conclusions about Kindle’s past convictions beyond the face
of the charging documents and statutory definitions of those
crimes. What Kindle does not account for, however, is the
actual wording of his plea agreement in this case and the
entirety of the discussion at sentencing.
  In the district court, Kindle objected to the PSR’s recom-
mendation and Judge Scott’s conclusion that he qualified as
a Career Offender under U.S.S.G. § 4B1.1. In objecting to
the Career Offender finding, counsel described the conduct
underlying Kindle’s burglary conviction. It appears from the
record that Kindle’s strategy in the district court was an
attempt to minimize the crime. Counsel characterized the
offense underlying the burglary conviction as a theft rather
than a burglary, since, he reasoned, at all times Kindle was
in the victim’s home with permission. He argues that it was
a minor theft, of several hundred dollars worth of CDs and
clothes, and thus hardly constituted a “crime of violence.”
Yet, for all the various reasons defendants plead guilty,
which are neither here nor there for our purposes, Kindle
entered a guilty plea to the second-degree burglary charge.
Underscoring counsel’s discussion of the home Kindle was
in when he committed second-degree burglary is the plea
agreement in the instant case. Kindle admits in paragraph
26 of his plea agreement that the second-degree burglary
was of a residence in Cape Girardeau, Missouri. Kindle’s
6                                               No. 05-2741

argument that an admission in court papers or in plea
agreements should be ignored is, as we said at oral argu-
ment, striking.
  The admissions in this case distinguish it from United
States v. Hoults. In Hoults, the PSR and the district judge
impermissibly relied on information outside the record to
find that defendant’s second-degree burglary was of a
habitable structure. 248 F.3d 647. The reasoning and
holding in Hoults still applies. Courts are not permitted to
make assumptions nor conduct proceedings or investiga-
tions “to fill in the gaps” on the conduct involved in a
previous conviction. Hoults, 248 F.3d at 651. A court
reviewing a defendant’s record for Career Offender qualifi-
cation purposes should ask only what the defendant’s
conviction was, and the only thing that answers that
question is the charging document. But, if a defendant
offers an admission in court papers or colloquy, as Kindle
does here in his plea agreement and during sentencing, the
proper enquiry into the previous conviction no longer
matters because the answer is in the form of an admission
in the record. The Supreme Court held in Shepard v. United
States that a court’s enquiry is “limited to the terms of a
plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial
record of this information.” 544 U.S. 13, 26 (2005) (emphasis
added).
  It is true, as Kindle urges, that facts gleaned from later
sources cannot be used to construe the original conviction.
Hoults, 240 F.3d at 651. But, if the later source is the
defendant or counsel offering an admission in colloquy to
garner leniency in sentencing, the court need not turn a
blind eye to the facts brought forth by the defendant.
Whether for strategic reasons or otherwise, Kindle admitted
in his plea agreement and at his sentencing that the 1996
conviction was for a burglary in his friend’s home. While
No. 05-2741                                                7

Kindle preserved his right to appeal the district court’s
finding that he qualified as a Career Offender, he did waive
his right to challenge the admission in the plea agreement
and at sentencing. We have long held that strategic deci-
sions at trial have appellate consequences: “There may be
sound strategic reasons why a criminal defendant will elect
to pursue one sentencing argument while also choosing to
forego another, and when the defendant selects as a matter
of strategy, he also waives those arguments he decided not
to present” United States v. Jaimes-Jaimes, 406 F.3d 845,
848 (7th Cir. 2005) (citing United States v. Cooper, 243 F.3d
411, 416 (7th Cir. 2001)). See also United States v. Richard-
son, 238 F.3d 837, 841 (7th Cir. 2001).
  Kindle’s plea agreement explicitly declares that his
1996 conviction was for burglary of a dwelling. Further,
Kindle’s counsel at sentencing repeatedly represented to
Judge Scott in colloquy that Kindle was in the friend’s home
with permission, a strategy that was employed to gain
sympathy and discretion from the court. Kindle’s second-
degree burglary therefore fits the definition of a “crime of
violence” under U.S.S.G. § 4B1.2. Given Kindle’s admis-
sions, we affirm the district court’s finding that Kindle
qualified as a Career Offender.
  For the foregoing reasons, the judgment of the district
court is AFFIRMED.
8                                        No. 05-2741

A true Copy:
      Teste:

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




               USCA-02-C-0072—7-5-06
