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

No. 03-4091
UNITED STATES OF AMERICA,
                                             Plaintiff-Appellee,
                              v.

AMIN W. WILLIAMS,
                                         Defendant-Appellant.
                        ____________
          Appeal from the United States District Court
             for the Western District of Wisconsin.
            No. 03 CR 65—John C. Shabaz, Judge.
                        ____________
    ARGUED FEBRUARY 15, 2005—DECIDED JUNE 9, 2005
                   ____________




  Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
  ROVNER, Circuit Judge. Amin Williams pleaded guilty to
unlawfully possessing a firearm following a felony con-
viction, see 18 U.S.C. § 922(g)(1), and the district court
sentenced him to a prison term of 115 months. Amin now
challenges the constitutionality of the felon-in-possession
statute as applied to his possession of a firearm, which he
characterizes as “purely intrastate possession.” He also
mounts a Sixth Amendment challenge to his sentence based
on the fact that the district judge made certain findings as
to the nature and extent of his criminal history as well as
the circumstances of his offense that increased the sentenc-
2                                                No. 03-4091

ing range called for by the U.S. Sentencing Guidelines. We
affirm Williams’ conviction, finding no merit to his con-
stitutional challenge to the felon-in-possession statute. As
for Williams’ sentence, although we find no plain error in any
of the court’s sentencing findings, we shall direct a limited
remand to the district court so that the court may deter-
mine whether it would be inclined to sentence Williams
differently knowing that the Sentencing Guidelines are
advisory rather than mandatory. See United States v.
Paladino, 401 F.3d 471, 483 (7th Cir. 2005).


                             I.
  On September 25, 2002, police in the city of Madison,
Wisconsin were notified that a fight had occurred during
which someone had brandished a gun. Police officers were
directed to an apartment to which one of the suspected
combatants had fled. They conducted a search of the prem-
ises with the lessee’s consent and discovered a loaded,
Smith and Wesson .44 magnum revolver with a scope, con-
cealed beneath the drawer of the kitchen’s oven. The gun
had been reported stolen to the Madison police four days
earlier. Williams was present in the apartment at that time
of the search but identified himself to the officers using an
alias and a false date of birth. After the police spoke with
witnesses to the altercation and ascertained Williams’ true
identity, he was taken into custody and charged under state
law with resisting or obstructing an officer based on his
attempt to disguise his identity. The investigation into the
altercation proved to be inconclusive. However, a sub-
sequent examination of the gun by the Wisconsin State
Crime Laboratory revealed prints matching Williams’ right
and left index fingers, left middle finger, and left thumb.
  On May 19, 2003, Special Agent Jason Salerno of the
federal Bureau of Alcohol, Tobacco, Firearms and Explosives
interviewed Williams. Williams told Salerno that he had
No. 03-4091                                                 3

been staying at his aunt’s apartment, which is where the
revolver was found, since January 2001. Williams admitted
that he had handled and had access to the revolver, which
he believed his friends had stolen. He also admitted that he
had previously been convicted of felony offenses in both
Illinois and Wisconsin.
  On June 4, 2003, a federal grand jury returned a one-
count indictment charging Williams with unlawfully pos-
sessing a firearm after having previously been convicted of
a felony offense, in violation of 18 U.S.C. § 922(g)(1). The
indictment alleged that the firearm “ha[d] previously trav-
eled in and affected interstate commerce.” R. 2. That
allegation was based on the fact that the revolver had been
manufactured in Massachusetts.
  Pursuant to a written plea agreement, R. 27, Williams
offered a plea of guilty to the indictment on September 18,
2003. In the course of the hearing on that plea, the Assistant
United States Attorney (“AUSA”) made a brief oral proffer
of the evidence that the government would have presented
to establish Williams’ guilt at trial. See Fed. R. Crim. P.
11(b)(3). Among other things, she noted that “Mr. Williams
told Agent Salerno his friends had stolen the revolver and
shown it to him. Williams admitted handling the revolver
and having access to it.” R. 41 at 18. At the conclusion of
the proffer, the district judge asked Williams whether he
agreed with the facts that the AUSA had outlined, and
Williams responded that he did. Id. Finding that there was
an adequate factual basis for Williams’ guilty plea, the
district court accepted the plea and adjudged him guilty. Id.
at 22.
  A probation officer conducted a pre-sentence investigation
and prepared a report (“PSR”) recommending that Williams’
base offense level under the Sentencing Guidelines be set at
24, based on the nature of his offense and two prior con-
4                                                No. 03-4091

victions for offenses that constituted crimes of violence. See
U.S.S.G. § 2K2.1(a)(2) (Nov. 2001).1 The PSR also proposed
a two-level enhancement to that base offense level because
the Smith and Wesson revolver had been stolen. See
U.S.S.G. § 2K2.1(b)(4). Three levels were to be deducted for
Williams’ acceptance of responsibility, id. § 3E1.1, resulting
in an adjusted offense level of 23. The probation officer
assigned Williams a criminal history of Category VI, based
on five prior adult convictions and two juvenile adjudica-
tions of delinquency—all sustained before his 21st birth-
day—and in view of the fact that Williams had committed
the instant offense while on probation and less than two
years following his release from prison on a prior sentence.
See id. § 4A1.1. For an offense level of 23 and criminal
history category of VI, the Sentencing Guidelines specified
a sentencing range of 92 to 115 months.
  Williams made no objections to the PSR, see R. 38 at 2-3,
and at sentencing the district court adopted the probation
officer’s recommended findings as to the fact that the gun
that Williams possessed had been stolen and as to the
nature and extent of Williams’ criminal history, id. at 4-5.
After listening to the parties’ respective positions as to
sentencing, the court ordered Williams to serve a sentence
of 115 months, the maximum sentence called for by the
Guidelines. Id. at 9. “The Court is even in this day and age
shocked at the violence, drugs and criminal activity that
this defendant was involved with ever since his age of 13
and believes that this criminal record and his continued
violation of the law does require a sentence at the top of the
guideline range.” Id. at 8.




1
  The district court sentenced Williams using the November 2001
version of the Guidelines. See R. 38 at 4.
No. 03-4091                                                      5

                                I.
A. Commerce Clause Challenge to Section 922(g)(1)
  Williams first challenges the constitutionality of the felon-
in-possession statute as it applies to his possession of the
Smith and Wesson revolver. Williams posits that because
he possessed the gun solely within the State of Wisconsin,
and because the record reveals no substantial connection
between his possession of the gun and interstate commerce,
Congress had no authority under the Commerce Clause, see
U.S. Const. Art. I, § 8, cl. 3, to reach his possession of the
gun. See United States v. Lopez, 514 U.S. 549, 115 S. Ct.
1624 (1995) (holding that Gun-Free School Zones Act of
1990, which proscribed possession of a firearm within 1000
feet of a school, exceeded congressional authority under
Commerce Clause because it reached conduct that did not
substantially affect or have a meaningful connection with
interstate commerce). Williams did not make this argument
below, so our review is solely for plain error. E.g., United
States v. Rogers, 89 F.3d 1326, 1338 (7th Cir. 1996).2
  As Williams himself acknowledges, our precedents fore-
close his argument; indeed, Williams indicates that he is
making the argument solely to preserve it for Supreme Court
review. It suffices to note that we have held repeatedly that
section 922(g)(1), because it requires proof that the defen-
dant possessed a firearm “in or affecting commerce,”



2
  Although Williams did not expressly reserve the right to appeal
his conviction in the written plea agreement, we have previously
treated an attack on the constitutionality of section 922(g)(1)
as one that is jurisdictional in nature and therefore cannot be
waived. United States v. Bell, 70 F.3d 495, 496-97 (7th Cir. 1995).
In any event, the government has not argued that Williams
waived any attack on his conviction by pleading guilty and has
therefore waived any claim of waiver. See, e.g., United States v.
Murphy, 406 F.3d 857, 860 (7th Cir. 2005).
6                                                 No. 03-4091

represents a valid exercise of congressional authority under
the Commerce Clause. E.g., United States v. Olson, ___ F.3d
___, 2005 WL 1163676, at *5 (7th Cir. May 16, 2005) (citing
United States v. Lemons, 302 F.3d 769, 772 (7th Cir. 2002)).
We have also held that so long as the firearm crossed state
lines at any point prior to the defendant’s possession of the
gun, his possession is “in or affecting commerce.” E.g., id.
(citing Lemons, 302 F.3d at 772-73); United States v. Harris,
394 F.3d 543, 551 (7th Cir. 2005).


B. Findings as to Criminal History
   As we noted above, Williams’ criminal history affected the
calculation of his sentencing range in two ways. First, the
determination that two of Williams’ prior convictions were
for crimes of violence resulted in a higher base offense level.
See U.S.S.G. § 2K2.1(a)(2). Second, the nature and extent of
his prior criminal history placed him in the highest criminal
history category. In both respects, Williams’ prior convic-
tions increased his sentencing range substantially. In
pleading guilty, Williams admitted to one of his prior
convictions, which was necessary to establish his status as
a convicted felon who was prohibited from possessing a
firearm. R. 41 at 18-19; see § 922(g)(1); see also, e.g., United
States v. Gilbert, 391 F.3d 882, 883 (7th Cir. 2004). He did
not otherwise formally acknowledge the breadth and nature
of his criminal record, however (although, as we have noted,
he posed no objections to the PSR). Had Williams’ criminal
history been disregarded at sentencing with the exception
of the one prior conviction he acknowledged, his base
offense level likely would have been 20, see § 2K2.1(a)(4)(A),
his adjusted offense level would have been 19, and with a
criminal history category of II (for the two criminal history
points assigned to the admitted conviction), the sentencing
range specified by the Guidelines would have been 33 to 41
months.
No. 03-4091                                                     7

  Relying on Apprendi v. New Jersey, 530 U.S. 466, 120
S. Ct. 2348 (2000), Williams contends that unless admitted
by a defendant, the fact and nature of any prior convictions
that expose him to a higher penalty must be determined by
a jury rather than by the sentencing judge. Apprendi held
that (with one exception we are about to discuss) any fact
that increases the penalty beyond the statutory maximum
otherwise prescribed for the offense must be proven to a jury
beyond a reasonable doubt. No aspect of Williams’ criminal
history exposed him to a higher statutory minimum or max-
imum penalty. However, as we have discussed, the extent
and nature of his history did have the effect of increasing
the sentencing range under the Guidelines. And the Supreme
Court’s subsequent opinions in Blakely v. Washington, 124
S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct.
738 (2005), extended Apprendi’s rationale to sentencing
regimes like (and including) the U.S. Sentencing Guidelines.
Williams thus contends that the sentencing judge was
barred from making an independent assessment of his crim-
inal history when its findings boosted his sentencing range.
This was not an argument that Williams made below, so the
error, if any, in the district court’s findings as to his criminal
history must be a plain one in order for us to disturb those
findings. E.g., United States v. Dumes, 313 F.3d 372, 385
(7th Cir. 2002).3
  However, the Supreme Court has excluded a defendant’s
criminal history from the range of facts that must, if not ad-
mitted, be proven to a jury before the defendant is subject
to increased penalties. Two years before it decided Apprendi,
the Court in Almendarez-Torres v. United States, 523 U.S.
224, 118 S. Ct. 1219 (1998), held that the existence of a
prior conviction need not be alleged in the indictment or
proven to a jury as an element of the offense, but rather


3
  In his plea agreement, Williams did reserve the right to appeal
his sentence. R. 27 ¶ 10.
8                                                No. 03-4091

may be determined by the judge at sentencing, even if the
prior conviction increases the statutory maximum sentence
that may be imposed on the defendant. The defendant in
Almendarez-Torres had pleaded guilty to illegally reen-
tering the United States following deportation in violation
of 8 U.S.C. § 1326(a), and pursuant to section 1326(b)(2), an
individual convicted of this crime is subject to a higher
maximum sentence (20 years as opposed to two) if his
deportation followed a conviction for an aggravated felony.
In view of the penalty increase that the statute called for,
the defendant asserted that the prior felony conviction must
be alleged in the indictment and otherwise treated as an
element of the offense. But the majority in Almendarez-
Torres rejected this view, concluding that Congress had not
intended to treat the prior conviction as an element of the
crime, 523 U.S. at 229-39, 118 S. Ct. at 1224-28, and that
the Constitution did not require it to be treated as such, id.
at 239-47, 118 S. Ct. at 1228-33. The court pointed out that
it is a sentencing judge’s obligation in every case to consider
the defendant’s criminal history. Id. at 230, 118 S. Ct. at
1124 (citing, inter alia, U.S.S.G. §§ 4A1.1, 4A1.2). The
existence of a prior conviction for an aggravated felony was
“as typical a sentencing factor as one might imagine,” the
court reasoned. Ibid. As such, that factor could be deter-
mined by the judge rather than a jury. Id. at 243-44, 118 S.
Ct. at 1230-31.
  Whatever commonalities a prior conviction might have
with factors that the Court has since held must be proven
to a jury, the Court’s opinions in Apprendi, Blakely, and
Booker have left the holding of Almendarez-Torres undis-
turbed. The Court in Apprendi specifically excluded the fact
of a prior conviction from the rule it established for other
facts that increase the statutory penalties to which a
defendant is exposed. 530 U.S. at 488-90, 120 S. Ct. at
2361-62. Both Blakely and Booker echo Apprendi on this
point. Blakely, 124 S. Ct. at 2536; Booker, 125 S. Ct. at 748,
No. 03-4091                                                   9

756. Likewise, the Court’s recent opinion in Shepard v.
United States, 125 S. Ct. 1254 (2005), decided after Booker,
acknowledges the continuing validity of Almendarez-Torres.
See id. at 1262-63 (plurality), and id. at 1269-70 (dissent).
   Therefore, the district court did not plainly err in making
findings with respect to Williams’ criminal history, be they
findings as to the fact of his prior convictions or as to the
nature of those convictions. However much in tension the
holding of Almendarez-Torres may be with the holdings of
Apprendi, Blakely, and Booker, see Shephard, 125 S. Ct. at
1264 (Thomas, J., concurring) (“Almendarez-Torres . . . has
been eroded by this Court’s subsequent Sixth Amendment
jurisprudence, and a majority of the Court now recognizes
that Almendarez-Torres was wrongly decided”), the Su-
preme Court has yet to overrule Almendarez-Torres. Until
it does, the district court does not violate a defendant’s Sixth
Amendment right to a jury trial by making findings as to
his criminal record that expose him to greater criminal
penalties. See, e.g., United States v. Lechuga-Ponce,
___ F.3d ___, 2005 WL 1163609, at *1 (7th Cir. May 17,
2005) (“the fact of a prior conviction need not be proven
beyond a reasonable doubt”); United States v. Carpenter,
406 F.3d 915, 917 (7th Cir. 2005) (“a sentencing court is
entitled to classify and take into account the nature of a
defendant’s prior convictions, provided that the judge does
not engage in factfinding about what the accused did”)
(emphasis in original).


C. Finding that the Gun Was Stolen
  We come finally to Williams’ contention that the district
court violated his Sixth Amendment right to a jury trial
when it determined that the gun he possessed was stolen
and enhanced his offense level by two levels based on that
finding. See U.S.S.G. § 2K2.1(b)(4). Booker holds that a
defendant has a Sixth Amendment right to have a jury
10                                               No. 03-4091

determine based on proof beyond a reasonable doubt any
fact that has the effect of increasing a mandatory sentenc-
ing range. 125 S. Ct. at 748-54, 755-56. The finding that the
Smith and Wesson revolver was stolen did have the effect
of increasing Williams’ sentencing range.
  The government contends that there was no Booker
violation, because Williams had admitted that the gun was
stolen. See Booker, 125 S. Ct. at 756 (“Any fact (other than
a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established
by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.”)
(emphasis ours). As we noted previously, the AUSA noted
in her Rule 11 proffer that Williams told Special Agent
Salerno that he believed his friends had stolen the gun, and
Williams acknowledged the accuracy of that proffer.
Williams replies that this was not sufficient to constitute an
admission for purposes of the Sixth Amendment, given that
the court in questioning Williams about the basis for his
plea did not specifically ask him whether the gun was
stolen. It is no surprise that the court omitted to question
Williams on this point, as the ownership of the gun was not
an element of the offense with which Williams was charged,
in the sense of establishing either his guilt or the statutory
range of penalties, nor was the fact that the gun was stolen
alleged in indictment. We add that whether or not the gun
was stolen was not a matter addressed in the written plea
agreement executed by the parties. Cf. United States v.
Castillo, 406 F.3d 806, 823 (7th Cir. 2005) (defendant in
plea agreement specifically conceded conduct forming basis
for application of enhancement for obstruction of justice).
  We may put that point aside, however. Whether or not the
district court’s finding as to the gun being stolen was based
on a genuine admission by Williams is not dispositive of his
Sixth Amendment claim. For the Supreme Court in Booker
No. 03-4091                                                 11

chose to solve the Sixth Amendment problem posed by the
Sentencing Guidelines not by precluding judges from making
factual determinations for purposes of sentencing, but by
severing and excising, inter alia, the statutory provision
rendering the Guidelines obligatory, 18 U.S.C. § 3553(b)(1).
125 S. Ct. at 764-65. Thus, while district courts are still
required to consult the Guidelines, make findings as to the
pertinent Guidelines factors, and take the resulting Guide-
lines sentencing range into consideration in deciding how to
sentence a defendant, the Guidelines no longer bind
sentencing judges in their selection of a reasonable sen-
tence, but are only advisory. Id. at 767.4
  This is where the error occurred in sentencing Williams.
The district court sentenced Williams in November 2003,
more than a year before the Supreme Court decided Booker
and at a time when the Guidelines still were considered to
be binding. Thus, after making findings as to the pertinent
sentencing factors, the court sentenced Williams within the
resulting Guidelines range without realizing that it had the
discretion to sentence outside of that range even if, for
example, the circumstances did not meet the relatively
narrow criteria for a departure from the Guidelines. See 18
U.S.C. § 3553(b)(1); U.S.S.G. § 5K2.0. In retrospect, with
the benefit of the Supreme Court’s decision in Booker, we
now know that it was error to treat the Guidelines as bind-
ing, and because Williams’ case was pending on direct re-
view when Booker was decided, he may claim the benefit of
its remedial holding. Booker, 125 S. Ct. at 769;


4
  Aside from the asserted Sixth Amendment error, we can find no
other defect in the district court’s finding that the Smith and
Wesson revolver was stolen. Even if Williams did not genuinely
admit as much for Sixth Amendment purposes, he never contested
the accuracy of the government’s assertion that he told Agent
Salerno the gun was stolen, nor did he object to the PSR’s
proposed finding that the gun was stolen.
12                                                No. 03-4091

United States v. Schlifer, 403 F.3d 849, 853 (7th Cir. 2005);
see also Castillo, 406 F.3d at 823 (recognizing that Booker
error may occur even in the absence of judicial fact-finding,
where district court treats Guidelines as mandatory)
(quoting United States v. White, 406 F.3d 827, 835 (7th Cir.
2005)).
   But because Williams did not make a Sixth Amendment
objection below, he must not only establish error, but plain
error, in order to obtain relief. See Booker, 125 S. Ct. at 769.
In particular, he must show that the mistake in treating the
Guidelines as obligatory affected his substantial rights.
Fed. R. Crim. P. 52(b); United States v. Lee, 399 F.3d 864,
866 (7th Cir. 2005). In other words, we have to know
whether the district court might have sentenced Williams
to a lesser prison term had it known that the Guidelines
were advisory. United States v. Paladino, supra, 401 F.3d
at 481-82. The fact that the court chose a sentence at the
top of the Guidelines range does not by itself rule out this
possibility, as the court made that selection believing that
its discretion was confined to the range specified by the
Guidelines. Id. at 482; see also United States v. Della Rose,
403 F.3d 891, 907 (7th Cir. 2005). And on review of the
record, we can find no other clue suggesting that the court
would have sentenced Williams to at least 115 months had
it realized that it had the discretion to impose a sentence
outside of the Guidelines range. See Lee, 399 F.3d at 866-67.
As we cannot divine whether the sentencing judge might be
inclined to sentence Williams more leniently under a
discretionary scheme, we must remand the case to the
district court so that it can make that determination. See
Paladino, 401 F.3d at 483. If, after due consideration, the
court indicates that it would be inclined to impose a lesser
sentence on Williams, then prejudice will have been estab-
lished, and we shall vacate the sentence to allow resen-
tencing. Della Rose, 403 F.3d at 908 (citing Paladino, 401
F.3d at 484). On the other hand, if the court concludes that
No. 03-4091                                               13

it would be inclined to sentence Williams to the same (or a
longer) term knowing that it has broader discretion after
Booker, then the only step left for us to take will be to
consider whether Williams’ sentence was plainly erroneous
in the sense of being unreasonable. Id. (citing Paladino, 401
F.3d at 484).


                            III.
  Finding no plain constitutional error in the application of
18 U.S.C. § 922(g)(1) to Williams’ possession of a handgun
that was manufactured in another state, we AFFIRM his
conviction. We also find no plain error either in the court’s
findings as to the extent and nature of Williams’ criminal
history or in its finding that the revolver Williams pos-
sessed was stolen. However, because the court sentenced
Williams believing that the Sentencing Guidelines were
binding rather than mandatory, we order a limited REMAND
so that the district court may determine whether it would
be inclined to sentence Williams to a lesser prison term
knowing that it has the discretion to do so after Booker. We
retain appellate jurisdiction pending the outcome of this
remand.

A true Copy:
      Teste:

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




                    USCA-02-C-0072—6-9-05
