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

No. 03-3031
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

REGINALD K. TOWNSEND,
                                           Defendant-Appellant.
                          ____________
        Appeal from the United States District Court for the
        Northern District of Indiana, South Bend Division.
        No. 02 CR 18—Robert L. Miller, Jr., Chief Judge.
                          ____________
     ARGUED APRIL 1, 2005—DECIDED AUGUST 19, 2005
                      ____________




 Before EASTERBROOK, MANION, and ROVNER, Circuit
Judges.
  ROVNER, Circuit Judge. Reginald Townsend was con-
victed of bank robbery by force or violence in violation of 18
U.S.C. § 2113 (a) and (d) and a separate count of bran-
dishing a firearm during a crime of violence in violation of
18 U.S.C. § 924(c). On July 23, 2003, the district court
issued an order which sentenced Townsend to imprisonment
of 300 months for count one of his conviction and 84 months
for count two, with the terms to run consecutively. The
sentence was enhanced by the district court’s determination
2                                                No. 03-3031

that Townsend was a career offender under United States
Sentencing Guideline § 4B1.1, based on his two prior
convictions for crimes of violence. Townsend appeals his
sentence on the basis that one of his prior robbery convic-
tions should not be considered a crime of violence, and
therefore, he should not have been classified as a career
offender. Our recent decision in United States v. Lewis, 405
F.3d 511, 514-15 (7th Cir. 2005), is dispositive of this issue,
wherein we determined that robbery under the Indiana
statute at issue here “always is a ‘crime of violence.’ ”
  At his sentencing hearing on July 18, 2003, Townsend
argued that his 1998 robbery conviction under Indiana
statute 34-42-5-1, a Class C felony, was not a crime of
violence because he was unarmed when the crime was
committed. Rather than examine the facts of this previous
conviction, the district court relied on Note 1 of U.S.S.G.
§ 4B1.2 to find that the robbery conviction would be con-
sidered a crime of violence based on the charging docu-
ments. “[Note 1] says, in language that could hardly be
more clear, ‘crime of violence includes robbery.’ ” Sentencing
Memorandum at A-2. Furthermore, the sentencing guide-
line defines “crime of violence” as:
    Any offense under Federal or State law, punishable by
    imprisonment for a term exceeding one year that,
        1. Has an element the use, attempted use, or
        threatened use of physical force against the person
        of another
U.S.S.G. Section 4B1.2. The district court found that the
Indiana robbery statute categorically fell within the defi-
nition of the sentencing guideline section defining crimes of
violence, because “[t]he Indiana statute makes intimidation
(or force) an element of the crime.” Sentencing
Memorandum at A-2. The district court therefore found
both of Townsend’s prior robbery convictions to be crimes of
violence without viewing the underlying facts of each con-
No. 03-3031                                                  3

viction. Section 4B1.1 provides that a defendant is a career
offender if he is over 18 years of age and has at least two
prior convictions of crimes of violence. Accordingly, the
district court’s conclusion that the robbery offense was for
a crime of violence resulted in an increase in Townsend’s
base offense level for sentencing purposes from 20 to 34.
   Townsend appeals his sentence and asks that we remand
the case to the district court for that court to review the un-
derlying facts of the prior conviction in determining whether
it constituted a crime of violence. The only relevant facts of
the 1998 conviction are that the robbery was committed
unarmed but that Townsend obtained money from the
cashier through the implicit threat of force, by verbally
referring to a gun. Even a factual inquiry into the circum-
stances of the offense would not likely be particularly
helpful to Townsend, as a court could easily conclude that
the crime was indeed one of violence as a robbery involving
a verbal threat of force.
  However, the circumstances of the case are not relevant
in characterizing Townsend’s prior convictions. The Su-
preme Court has found that in assessing prior convictions
to determine whether they are crimes of violence, the
review is “limited to examining the statutory definition,
charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.” Shepard v.
United States, ___ U.S. ___, 125 S. Ct. 1254, 1257 (2005).
Essentially, the court is limited to considering only the evi-
dence that allows the court to conclude that the conviction
necessarily rested on the elements which identify the crime
as a crime of violence. When there is no ambiguity in the
charging documents or in the statutory definition of the
crime, it is not necessary to undertake a factual review.
  There is neither ambiguity in the charging document in
this case nor in the statutory definition of the crime of rob-
4                                                No. 03-3031

bery under Indiana law. The statute provides:
    A person who knowingly or intentionally takes property
    from another person or from the presence of another
    person:
        (1) by using or threatening the use of force on any
        person; or
        (2) by putting any person in fear; commits robbery,
        a Class C felony.
Ind. Code 35-42-5-1 (emphasis added). This circuit has
addressed this statute in Lewis, and held that robbery
under that statute “always is a ‘crime of violence.’ ” Lewis,
405 F.3d at 515. In Lewis, the case had to be remanded for
resentencing because the court improperly considered what
Lewis was alleged to have done instead of examining the
elements of the crime of robbery or examining the categori-
cal risks of robbery. We held that “[r]obbery entails taking
property from the person of another by force or threat and
so is a crime of violence under subsection (1). . .Even if the
offender uses a threat rather than actual force, the victim
may retaliate or flee, and violence erupt; this risk makes
robbery a crime of violence under subsection (2).” Lewis, 405
F.3d at 514. Therefore, Townsend’s conviction for robbery
under Indiana Code 35-42-5-1 was for a crime of violence,
and the district court properly determined that he was a
career offender.
  In supplemental briefing to this court, Townsend also
raises a challenge to his sentence based on the Supreme
Court’s decision in United States v. Booker, ___ U.S. ___,
125 S. Ct. 738 (2005). The Court in Booker held that “[a]ny
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 of a jury verdict
must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” Id. at 756. This holding need
No. 03-3031                                                  5

not concern us here, because rather than arguing that the
district court erred in making fact-findings, Townsend
argues the opposite—that the district court should have
made fact-findings regarding his prior conviction. Another
aspect of the Booker decision, however, could conceivably
impact Townsend’s sentence. In Booker, the Supreme Court
invalidated the mandatory application of the Guidelines,
holding that district courts are obligated to consider the
Guidelines but are not bound by them. Id. at 767. That
decision applies to all cases pending on direct review, and
accordingly it was error for the district court to treat the
Guidelines as binding. Because the issue was not raised
below, Townsend must establish not only error, but plain
error, in order to obtain relief, which requires a showing
that the error in treating the Guidelines as mandatory
affected his substantial rights. United States v. Williams,
410 F.3d 397, 403-04 (7th Cir. 2005). The record does not
reveal whether the district court might have sentenced him
to a lesser sentence had it known of the advisory nature of
the Guidelines, and therefore whether the error was one
affecting his substantial rights. See United States v.
Paladino, 401 F.3d 471, 483 (7th Cir. 2005). In accordance
with Booker, we must remand the case to the district court
for that determination. If the district court indicates that it
would be inclined to impose a lesser sentence, then
Townsend will have demonstrated plain error, and we will
vacate the sentence and remand for resentencing. Williams,
410 F.3d at 404; Paladino, 401 F.3d at 484. On the other
hand, if the district court determines that it would not be
inclined to impose a lower sentence given the advisory
nature of the Guidelines, we will consider only whether the
sentence was plainly erroneous in the sense of being
unreasonable. Williams, 410 F.3d at 404; Paladino, 401
F.3d at 484.
 Accordingly, because the district court sentenced
Townsend believing that the Guidelines were binding
6                                             No. 03-3031

rather than advisory, we order a limited remand for the
district court to determine whether it would be inclined to
sentence Townsend to a lesser sentence given that discre-
tion. 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—8-19-05
