United States v. Van Sach, Joseph

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-2790

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH VAN SACH,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 466—Ruben Castillo, Judge.

____________

ARGUED JANUARY 20, 2006—DECIDED AUGUST 17, 2006

____________

Before FLAUM, Chief Judge, and BAUER and RIPPLE,

Circuit Judges.

BAUER, Circuit Judge. After a jury trial, Joseph Van Sach

was convicted of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g). District Judge Ruben

Castillo determined that the Armed Career Criminal Act

applied, 18 U.S.C. § 924(e), and therefore, Van Sach’s

advisory Sentencing Guideline range was 210 to 262

months. Judge Castillo sentenced Van Sach at the bottom

of this advisory range, to 210 months in prison. On appeal,

Van Sach contends that he was denied due process and a

fair trial when the district judge ordered him to wear leg

shackles at a jury trial where Van Sach represented

himself. In addition, Van Sach argues that he was denied

2 No. 05-2790

the right to confrontation because the government declined

to call a paid confidential informant as a witness, yet relied

on her acts and statements to convict him. Next, Van Sach

challenges the jury instructions. Van Sach also argues that

18 U.S.C. § 922(g) is unconstitutional as applied under the

Commerce Clause. Finally, Van Sach challenges the

application of the Armed Career Criminal Act and the

reasonableness of his 210 month sentence. We affirm.

I. Background

A. Investigation

The Bureau of Alcohol, Tobacco, Firearms, and Explosives

(“ATF”) began investigating Joseph Van Sach in 2003. The

investigation focused on illegal trafficking of firearms and

involved surveillance, the use of a confidential informant,

and the controlled purchase of a firearm from Van Sach.

ATF Special Agent Susan Bray testified that the first

meeting between the confidential informant (“CI”) and Van

Sach was on July 14, 2003. Immediately prior to the

meeting, Agent Bray searched the CI for contraband, found

none, and equipped the CI with a digital recorder. The

CI then met with Van Sach for approximately an hour

and 45 minutes. Agent Bray and her fellow law enforcement

officers conducted continuous surveillance of this meeting.

Agent Bray testified at trial that she retrieved the digital

recorder from the CI immediately after the CI met with Van

Sach on July 14, 2003, and listened to it. Having heard Van

Sach’s voice before, Agent Bray was able to identify both

Van Sach’s and the CI’s voices on the tape. She followed

this procedure with all the recorded conversations between

Van Sach and the CI.

The CI had more in-person meetings with Van Sach on

July 16 and July 17, 2003. On July 21, Van Sach and the CI

had more serious conversations and they planned to meet

No. 05-2790 3

at Van Sach’s apartment that day. The telephone conversa-

tions were recorded and Agent Bray met with the CI on the

south side of Chicago around 2:30 p.m. Shortly after they

met, the CI placed a telephone call to Van Sach to discuss

the sale of a firearm. In this call, Van Sach could be heard

telling the CI he wanted “450 for it.” Van Sach also de-

scribed the firearm he was selling as having “ten rounds”

and he explained that it was “Teflon.”

The CI placed a second phone call to Van Sach at approxi-

mately 3:30 p.m. In this recorded conversation, Van Sach

again informed the CI that he had numerous firearms he

was in a position to sell and that he would need the CI to

bring cash that night in order to complete the gun transac-

tion. Agent Bray met with the rest of her team to plan the

operation for the CI to purchase a Talon Industries, Inc.,

Model T200, 9 millimeter semi-automatic pistol from Van

Sach that night. The CI, ATF agents, and task force officers

from the High Intensity Drug Trafficking Area Unit met at

Homan Square, which was near Van Sach’s house, to plan

the operation. The CI met Agent Bray there and another

agent, Ofelia Uribe, searched the CI for any contraband.

Uribe did not find any contraband on the CI. The agents

then equipped the CI with a digital recorder, transmitter,

and $460 in cash to purchase the firearm.

Task Force Officer Dwayne Johnson testified that, while

acting in an undercover capacity, he drove the CI to the

corner of Cermak and Karlov streets, near Van Sach’s

house. After the CI left, Officer Johnson conducted sur-

veillance of Van Sach’s house. He witnessed the CI walk to

the back of Van Sach’s house and then come out approxi-

mately ten minutes later. As the CI was leaving the house,

Officer Johnson saw Van Sach and a woman leave and

enter a Chevy Blazer that was parked in the front. Agents

Bray and Uribe were also conducting surveillance from a

nearby parking lot.

4 No. 05-2790

Once the firearm transaction was complete, the agents

and the CI returned to Homan Square. Agent Bray re-

trieved the digital recording device and searched the CI’s

handbag. In the CI’s handbag Agent Bray found the

firearm, which was loaded. She then listened to the record-

ing of the meeting between Van Sach and the CI and she

recognized the two voices as belonging to Van Sach and the

CI, respectively. The recording was played for the jury and

the following conversation was heard:

Van Sach: I have one 9 here.

CI: Hand it to me and I’ll hand you the money,

here you go.

After Van Sach handed the gun to the CI he asked for the

gun back in order to wipe it down because he did not “want

prints on the gun.” The CI did not testify at trial, but

the government authenticated the tapes through Agent

Bray’s testimony.

B. District Court Proceedings

On May 13, 2004, Van Sach was indicted for being a felon

in possession of a firearm in violation of 18 U.S.C. § 922(g).

Counsel was appointed for Van Sach. On July 27, 2004, Van

Sach’s counsel filed a motion to have him evaluated by

mental health experts to determine whether he had a

diminished capacity defense. Two days later, Van Sach’s

counsel orally moved to expand his request to include a

competency examination. The motion was initially denied

without prejudice but was later granted after Van Sach’s

counsel filed a written motion.

At a status hearing on September 9, 2004, Van Sach said:

I understand about the psychiatric thing. When it’s all

over with, I do not wish to retain this attorney. I wish

to represent myself. I know I’m going to be competent

No. 05-2790 5

enough to stand trial, and I just want to represent

myself.

Judge Castillo repeatedly warned Van Sach about the

risks of self-representation but agreed to take Van Sach’s

motion to appear pro se under advisement. On October 27,

2004, Van Sach again expressed the wish to represent

himself. After further admonishment from Judge Castillo,

Van Sach requested copies of the case documents to see

if he could represent himself. The next day Van Sach’s

counsel moved to withdraw, citing irreconcilable differences.

Van Sach’s current attorney was subsequently appointed.

Judge Castillo received several more pro se pleadings

from Van Sach. At a hearing on February 9, 2005, Van Sach

indicated that he was more than capable of trying his own

case, but wished to maintain stand-by counsel. Judge

Castillo told Van Sach that he had serious concerns about

Van Sach proceeding pro se but agreed to take the matter

under consideration and said he would read Van Sach’s

evaluation again.

On February 17, 2005, Judge Castillo again admonished

and urged Van Sach not to proceed pro se. Ultimately,

Judge Castillo allowed Van Sach to represent himself

with the understanding that if Van Sach tried to ob-

struct the trial or was running into serious problems

with the procedure, Judge Castillo would end Van Sach’s

right to represent himself and make appointed counsel,

Gary Ravitz, proceed with the defense.

Based on court security recommendations, on the first day

of trial Judge Castillo ordered Van Sach to appear in leg

shackles. Van Sach objected and asked the court to remove

the shackles. Judge Castillo denied his request. Because of

a security request from the United States Marshal’s Service

regarding court security, Judge Castillo said he was

reluctantly denying Van Sach’s motion to remove the

shackles in deference to the opinion of the Marshal’s

Service. After a jury was selected and sent home,

6 No. 05-2790

Judge Castillo stated on the record his reasons for the

shackling order:

The Court: Okay. I will state for the record without

the jury present now, is that I was shown

a series of consistent disciplinary viola-

tions in in-custody situations where Mr.

Van Sach, in common parlance, has been

written up for assaultive [sic]-type behav-

ior. And it is consistent and it is a pat-

tern, and that is the reason for the shack-

ling recommendation, which the court has

followed.

Van Sach’s stand-by counsel argued against the shackling

order, asking the Judge to take note that during the

day’s proceedings Van Sach conducted himself without

incident. Judge Castillo added,

The Court: No doubt about that, and I think that

that’s the way we need to continue to

bring this trial to a resolution without

any type of incident. But I have the right,

as a judge, to rely on professional judg-

ment given to me by the security experts,

of which the Court doesn’t claim to be a

security expert. But there was enough

objective evidence, and I don’t want to

have mini-trials on whether or not these

tickets were correct, but there is enough

of them over a consistent pattern that

seemed to me to justify the recommenda-

tion and justify me going along with the

recommendation.

Stand-by counsel continued to object, and expressed his

concern that the jury might think that Van Sach was an

extremely dangerous individual.

No. 05-2790 7

The Court: Well, I think we’ve gone over it numerous

times during jury selection and I have the

jurors’ words that they will not use it

against Mr. Van Sach. And I will tell you

there’s just—I’m just looking at the disci-

plinary record. I won’t hesitate to put this

into the record. There’s assault with

serious injuries, refusing to obey orders

that have led to incidents over and over

again. Threatening bodily harm, inso-

lence. It just goes on and on. If you are

insistent in looking at it, I’ll be happy to

show it to you, but I don’t think we need

to have a mini-trial on this issue.

Van Sach was convicted of being a felon in possession of

a firearm. Judge Castillo applied the Armed Career Crimi-

nal Act, 18 U.S.C. § 924(e), and determined that the

advisory Sentencing Guideline range was 210 to 262

months. Van Sach was sentenced at the low end of this

advisory range, to 210 months in prison. This timely appeal

followed.

II. Discussion

A. Due Process

Van Sach contends that he was denied due process and a

fair trial when the district court ordered him to appear in

shackles at trial. He argues that his chance for a fair trial

was further undermined because he was proceeding pro se

and the jury therefore saw him in shackles every time he

rose to examine a witness or address the jury. A defendant’s

claim that he was denied a fair trial because the district

court ordered him to remain in shackles during the course

of the trial is reviewed for abuse of discretion. Deck v.

Missouri, 544 U.S. 622, 629 (2005).

8 No. 05-2790

A defendant in a criminal case has the right to appear

before a jury free from shackles or other physical restraints.

Illinois v. Allen, 397 U.S. 337, 344 (1970); Roche v. Davis,

291 F.3d 473, 482 (7th Cir. 2002). The Supreme Court has

recognized, however, that a defendant’s right to be free from

restraint is not absolute. Holbrook v. Flynn, 475 U.S. 560,

567-68 (1986). The right to be free from shackles at trial

“may be overcome in a particular instance by essential state

interests such as physical security, escape prevention, or

courtroom decorum.” Deck, 544 U.S. at 629.

Van Sach’s due process claim is not one we take lightly.

Shackling a defendant is an extreme measure and we

understand the prejudice that such an order can have on

the jury. Allen, 397 U.S. at 343-44. Yet, we also understand

a trial judge’s responsibility to the safety of jurors, attor-

neys, and witnesses in his or her courtroom. In considering

the Marshal Service’s request, Judge Castillo reviewed Van

Sach’s significant disciplinary record at the Metropolitan

Correctional Center in Chicago (“MCC”).

From August 5, 2004 through January 14, 2005, Van Sach

was cited ten times for refusing to obey an order, one time

for refusing a work assignment, two times for being insolent

to an MCC staff member, one time for threatening bodily

harm, and one time for assault without a serious injury.

Moreover, in a letter addressed to the district court and

dated January 18, 2005 (almost a month before trial), the

Acting Warden of the MCC informed the court that the

defendant had again been found guilty of refusing to obey

an order and the MCC imposed a sanction of 60 days

disciplinary segregation, 180 days visiting restriction, and

the termination of 27 days of good conduct time. An MCC

memorandum from December 8, 2004, is perhaps the most

troubling. In the memorandum, a Deputy U.S. Marshal

reported that at approximately 9:00 a.m. on December 8,

Van Sach was placed in an interview room at the Dirksen

Federal Courthouse for a legal visit. Less than 30 seconds

No. 05-2790 9

after Van Sach’s attorney left, Van Sach repeatedly

pounded on the door. The marshal told him that he would

be removed momentarily and that there was no need to

bang on the door. Van Sach told the marshal that he would

urinate on the floor if he were not immediately removed

from the room. The marshal returned to the room within

five minutes to find that the defendant had, in fact, uri-

nated on the floor. At approximately 9:45 a.m., a different

marshal came to get Van Sach for his court proceeding.

While the marshal was trying to place handcuffs on Van

Sach, Van Sach stepped back with his right leg into a

stance as if prepared to take an active move on the marshal.

After the court proceeding that day, Van Sach was returned

to the interview room and he again repeatedly banged on

the door. Additionally, he put tissue paper over the window

slot to obstruct the marshals’ view into the room. A marshal

then entered the room to stop Van Sach’s behavior and Van

Sach told the marshal that if anyone entered the room they

would get hurt. The defendant was eventually restrained

and returned to the MCC.

In considering the shackling order, Judge Castillo was

mindful of the issues that stand-by counsel raised, primar-

ily that with Van Sach appearing pro se, Van Sach’s leg

shackles would be even more visible and audible to the jury

than if he was proceeding with counsel. Yet, there was a

heightened concern with Van Sach appearing pro se: he

would be approaching the bench, addressing the jury,

examining evidence, using the podium, and approaching

witnesses. Judge Castillo believed that the shackling order

was necessary in light of both the inherent mobility in-

volved in representing oneself at trial and Van Sach’s

disciplinary record. We conclude that Judge Castillo

carefully assessed the special circumstances involved in

Van Sach’s trial, as Deck v. Missouri requires. 544 U.S. at

629. Judge Castillo went to great lengths to safeguard

against any prejudice the jury may have had as a result

10 No. 05-2790

of the leg shackles. During his initial instructions to the

venire on the morning of jury selection, the judge informed

the panel that defendant’s leg shackles were not to be

considered at all in terms of whether or not he’s guilty or

not guilty of the charge. Later that afternoon, Judge

Castillo again instructed the venire that the defendant’s leg

shackles were irrelevant to guilt or innocence on the charge.

Judge Castillo then asked the jury pool if there was anyone

who felt that they would lean towards guilt or innocence

based on the leg shackles, and no jurors responded yes.

Both the government and Van Sach reminded jurors in

their closing arguments that the shackling should play no

role in deliberations.

Before shackles are used, Deck requires a trial judge to

determine that the measure is justified by a state interest

specific to the trial. Id. In this case, Judge Castillo poured

over Van Sach’s disciplinary records from the MCC and

determined that shackles were a necessary precaution given

the defendant’s mobility in representing himself at trial. We

hold that the district court did not abuse its discretion in

requiring Van Sach to wear leg shackles during the trial.

B. Right to Confrontation

Van Sach next argues that his Sixth Amendment right to

confrontation was violated when the government did

not call the CI as a witness. Interpretation of the Con-

frontation Clause of the Sixth Amendment is a legal

question that we review de novo. United States v. Sutton,

337 F.3d 792, 798 (7th Cir. 2003).

In a motion in limine, the government explained that

it did not intend to call the CI as a witness but it would

seek to admit the recordings through Agent Bray’s testi-

mony. At trial, the court admitted a series of recorded

conversations between Van Sach and the CI. The recordings

were made on July 14, July 21, and July 28, 2003. Because

No. 05-2790 11

of a technical glitch on two of the recordings, only the

defendant’s side of the conversation with the CI could be

heard. On the other recordings, Agent Bray testified that

she recognized the voices as belonging to the CI and Van

Sach. Judge Castillo specifically instructed the jury, during

trial and prior to deliberations, that it was “not to consider

the statements of the cooperating individual for the truth of

the matter asserted. Instead, the statements made by the

confidential informant are only relevant to provide the

context for what the listener says, does, or believes in

response to them.”

When recorded evidence is admitted in the absence of

testimony by an informant who recorded the conversation,

the Confrontation Clause of the Sixth Amendment is

not violated if the statements are non-testimonial and

are not offered for the truth of the matter asserted. It is

well settled that non-hearsay statements are admissible

if they are offered to provide context. See United States v.

Tolliver, Nos. 05-2910, 05-2962, 2006 U.S. App. WL

2007642, at *4 (7th Cir. July 19, 2006); United States v.

Gajo, 290 F.3d 922, 930 (7th Cir. 2002); United States v.

Davis, 890 F.2d 1373, 1380 (7th Cir. 1989).

Van Sach contends that his right to confrontation was

violated based on the Supreme Court’s recent decision in

Crawford v. Washington, 541 U.S. 36 (2004). In Crawford,

the Supreme Court was clear that out-of-court testimonial

statements are barred by the Confrontation Clause unless

the witnesses are unavailable and the defendant had a prior

opportunity for cross-examination. Id. at 54. Yet, the Court

narrowed its holding to testimonial statements, explaining

that the Confrontation Clause “does not bar the use of

testimonial statements for purposes other than establishing

the truth of the matter asserted.” Id. at 59 n.9 (citing

Tennessee v. Street, 471 U.S. 409, 414 (1985)). Further, the

CI’s statements were non-testimonial, and thus fall outside

of Crawford. As we held in United States v. Tolliver,

12 No. 05-2790

statements providing context for other admissible state-

ments are not hearsay because they are not offered for their

truth. Tolliver, *3.

In this case, the court gave the jury a limiting instruction,

explaining that the CI’s statements were only to provide

context for the defendant’s admissions on the recordings,

and could not be used for the truth of the matter asserted

therein. Further, while the CI did not testify, the defendant

did cross-examine Agent Bray, and indirectly, was able to

reach the CI’s possible biases. During his cross-examination

of Agent Bray, Van Sach elicited testimony that the CI had

previously filed assault charges against him, that the CI

had received money from the ATF, and that the CI had

committed a felony while working for the ATF.

Judge Castillo twice instructed the jury not to con-

sider the CI’s statements for their truth, but rather as

context for Van Sach’s admissions on the tape recording.

Since Crawford’s prohibition is for testimonial hearsay,

Crawford, 541 U.S. at 59-60 n. 9, and the declarant’s

statements here were offered as context evidence rather

than for their truth, we conclude that the admission of the

CI’s statements did not offend the Confrontation Clause.

C. Jury Instructions

Van Sach also challenges two of the jury instruc-

tions given by the district court. He claims the district

court’s instructions for possession and knowledge were

improper and that they had the effect of rewarding the

government’s failure to call the informant witness. We

review a district court’s decisions on jury instructions for

abuse of discretion. United States v. Messino, 382 F.3d 704,

711 (7th Cir. 2004). We review de novo whether an in-

struction accurately summarizes the law or if it is legally

erroneous. United States v. Stewart, 411 F.3d 825, 827

(7th Cir. 2005).

No. 05-2790 13

Van Sach first challenges the jury instruction for posses-

sion. Judge Castillo gave the following instruction:

Possession of an object is the ability to control it.

Possession exists when an individual holds an object, in

this case a firearm, even if the handling is only momen-

tary, as long as the individual does so knowingly and

intends to handle the object. Possession may also exist

even when a person is not in physical contact with the

object, but knowingly has the power and intention to

exercise direction or control over it, either directly or

through others. A person can possess an object without

owning the object provided that the person has the

power and intention to control the object.

The government’s burden in a § 922(g) case includes

proving beyond a reasonable doubt that the defendant

possessed the charged firearm. It is therefore critical that

the district court clearly define the term possession for the

jury.

At the jury instruction conference, stand-by defense

counsel objected to the government’s suggested posses-

sion instruction because it was not a verbatim version of the

possession instruction approved by the Seventh Circuit in

United States v. Hendricks, 319 F.3d 993, 1004-05 (7th Cir.

2003). Judge Castillo agreed with stand-by defense counsel

and gave the instruction from Hendricks instead.

The possession instruction that Judge Castillo gave to the

jury accurately summarized the law in this Circuit and

clearly informed the jury that, in order to convict, it was

required to find that Van Sach knowingly and intentionally

possessed the firearm. Moreover, Judge Castillo modified

the instruction so that it mirrored the posses-

sion instruction preferred by defendant and approved by

this Court in Hendricks. The district court did not abuse its

discretion in its use of the possession jury instruction.

14 No. 05-2790

Van Sach also challenges the knowledge instruction.

Judge Castillo gave the following knowledge instruction to

the jury:

When the word “knowingly” is used in these instruc-

tions, it means that the defendant realized what he was

doing and was aware of the nature of his conduct, and

did not act through ignorance, mistake, or accident.

Knowledge may be proved by the defendant’s conduct,

and by all the facts and circumstances surrounding the

case.

Van Sach argues that the second sentence of the instruction

should be given only in cases where the evidence presented

at trial was mostly circumstantial. Yet, a significant part of

the government’s case against Van Sach was circumstan-

tial. The evidence as it related to possession of the firearm

consisted of tape recordings where Van Sach talked about

the firearm. Further, the surveillance agents’ testimony

about their search of the CI and what they found before and

after the firearm transaction was also circumstantial

evidence. We hold that it was not an abuse of discretion for

Judge Castillo to give a knowledge instruction to the jury

that also addressed circumstantial evidence.

D. 18 U.S.C. § 922(g)(1)

Van Sach next argues that 18 U.S.C. § 922(g)(1) is

unconstitutional because, in enacting this statute, Congress

exceeded its power under the Commerce Clause. We have

consistently rejected similar Commerce Clause challenges

to § 922(g) since the “jurisdictional element of § 922(g)

provides the required nexus with interstate commerce.”

United States v. Hemmings, 258 F.3d 587, 594 (7th Cir.

2001). See, e.g., United States v. Olson, 408 F.3d 366, 372-73

(7th Cir. 2005); United States v. Williams, 410 F.3d 397, 400

(7th Cir. 2005). Moreover, the firearm that Van Sach sold to

the CI satisfied the minimal nexus to interstate commerce

No. 05-2790 15

that is required. ATF Special Agent Michael Walsh testified

that the firearm in question was manufactured in Montana

and, thus, it necessarily traveled in interstate commerce

prior to Van Sach’s possession of it in Illinois. Therefore,

Judge Castillo properly denied Van Sach’s constitutional

challenge to 18 U.S.C. § 922(g)(1).

E. Sentencing

Finally, we address Van Sach’s challenge of the district

court’s application of the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e). Van Sach argues that the

district court violated his Sixth Amendment rights be-

cause the jury did not determine that his prior convic-

tions were violent felonies beyond a reasonable doubt. He

further contends that it was unconstitutional for Judge

Castillo to sentence him to a term of imprisonment in

excess of the statutory maximum of ten years as provided

by 18 U.S.C. § 924(a)(2).1

At Van Sach’s sentencing hearing the district court

concluded that he should be sentenced under ACCA because

he had three prior qualifying convictions for violent

felonies.2 As a result, Judge Castillo sentenced him to 210

months’ imprisonment.

1

The statutory maximum prescribed by 18 U.S.C. § 924(a)(2)

states that “[w]hoever knowingly violates subsection (a)(6), (d), (g),

(h), (i), (j), or (o) of section 922 shall be fined as provided in this

title, imprisoned not more than 10 years, or both.” Van Sach was

convicted of violating 18 U.S.C. § 922(g).

2

Under 18 U.S.C. § 924(e), “a person who violates section 922(g)

of this title and has three previous convictions by any court

referred to in section 922(g)(1) of this title for a violent felony or a

serious drug offense, or both, committed on occasions different

from one another, such person shall be fined under this title and

imprisoned not less than fifteen years. . . .”

16 No. 05-2790

While the Supreme Court has issued several recent

opinions clarifying a defendant’s Sixth Amendment right to

jury findings that increase a defendant’s sentence beyond

the statutory maximum, the Almendarez-Torres exception

has yet to be overruled. Almendarez-Torres v. United States,

523 U.S. 224 (1998). Almendarez-Torres clarified that a trial

judge may determine at sentencing whether a prior convic-

tion increases the maximum sentence that may be imposed

on a defendant without violating the Sixth Amendment. Id.

The Supreme Court’s recent Sixth Amendment case law has

maintained this holding. See United States v. Booker, 543

U.S. 220 (2005); Blakely v. Washington, 542 U.S. 296 (2004);

Ring v. Arizona, 536 U.S. 584 (2002); Apprendi v. New

Jersey, 530 U.S. 466 (2000). Van Sach points to Shepard v.

United States for support that findings regarding prior

convictions should be made by the jury. 544 U.S. 13 (2005).

But, Van Sach concedes that we have already decided that

the Almendarez-Torres exception for prior convictions still

stands after Shepard. See United States v. Browning, 436

F.3d 780, 782 (7th Cir. 2006); United States v. Ngo, 406 F.3d

839, 843 (7th Cir. 2005); United States v. Williams, 410 F.3d

397, 401 (7th Cir. 2005). Shepard itself acknowledges the

continuing validity of the Almendarez-Torres exception. 544

U.S. at 24-26, 37-38 (2005) (plurality and dissenting

opinions). Given the state of the law, we conclude that Van

Sach’s Sixth Amendment rights were not violated when

Judge Castillo determined that Van Sach should be sen-

tenced under ACCA.

Van Sach attacks the district court’s findings on his

prior convictions a second way. While he stipulated to a

prior felony conviction pursuant to Old Chief v. United

States, 519 U.S. 172 (1997), and admitted at sentencing that

he had a prior state robbery conviction, he contends that he

was forced into the stipulation by prosecutors, the case

agent, and stand-by counsel. Van Sach also argues that

even if the two prior felony convictions he conceded stand,

No. 05-2790 17

Judge Castillo erred in determining that two other offenses

qualified as predicates under ACCA.

Van Sach’s claim that he was forced into the stipula-

tion at trial finds no support in the record. When the Old

Chief stipulation was read in open court to the jury, the

government asked defendant if it was so stipulated and

he responded, “Yes, sir.” With no objection from Van Sach

at trial and nothing in the record to suggest coercion or

disagreement with the stipulation, we find the district court

did not plainly err when it did not present the question of

felony convictions to the jury. In United States v. Lewis, we

explained that a defendant “waive[s] any claim under the

Sixth Amendment when he t[akes] advantage of Old Chief

to prevent the jury from learning details about his prior

conviction.” 405 F.3d 511, 513 (7th Cir. 2005).

The other convictions that Van Sach urges should not

be included as ACCA predicate offenses were for aggravated

battery, in violation of 720 ILCS 5/12-4(b)(6). The first

offense in question occurred on June 14, 1994 and the

second occurred on May 3, 1995. Van Sach contends that

these prior convictions for aggravated battery are not

violent felonies under 18 U.S.C. § 924(e).

In determining whether an offense is eligible for ACCA,

the Supreme Court offers guidance for a district court,

holding that the 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.” Shepard v. United

States, 544 U.S. 13, 26 (2005). In this case, Judge Castillo

specifically acknowledged these limitations under Shepard

and confined his analysis to the charging documents

and plea colloquies from June 14, 1994, and May 3, 1995.

After reviewing the documents, Judge Castillo con-

cluded that Van Sach should be sentenced under ACCA

18 No. 05-2790

because these convictions for aggravated battery against

police officers involved a serious potential risk of physical

injury to others, and were felony offenses under 18 U.S.C.

§ 924(e)(2)(B). See United States v. Hayes, 919 F.2d 1262,

1266 (7th Cir. 1990) (aggravated battery to a police officer

is a violent felony for purposes of ACCA). We therefore hold

that the district court properly rejected Van Sach’s Sixth

Amendment claim and did not err in sentencing him under

ACCA.3

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the

district court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

3

In an additional pro se brief, the appellant argued that his

conviction should be overturned for insufficient evidence, that the

prosecution’s closing argument constituted government miscon-

duct, and that his sentence is unconstitutional. These claims are

without merit. Additionally, Van Sach claimed that he received

substandard medical care during his incarceration. This appeal is

not the proper venue to pursue such a claim.

USCA-02-C-0072—8-17-06