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 convicted of bank robbery by force or violence in violation of 18

U.S.C. § 2113 (a) and (d) and a separate count of brandishing 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 convictions 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 considered a crime of violence based on the charging documents. “[Note 1] says, in language that could hardly be

more clear, ‘crime of violence includes robbery.’ ” Sentencing

Memorandum at A-2. Furthermore, the sentencing guideline 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 definition 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 underlying 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 circumstances 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 Supreme 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 evidence 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 categorical 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 discretion. 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