In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-1134 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

RAMONE SHAFFERS, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division. 

No. 1:17-cr-00438-1 — John J. Tharp, Jr., Judge. 

____________________ 

ARGUED NOVEMBER 1, 2021 — DECIDED JANUARY 5, 2022 

____________________ 

Before HAMILTON, SCUDDER, and ST. EVE, Circuit Judges. 

HAMILTON, Circuit Judge. Ramone Shaffers was charged 

with possession of a firearm by a convicted felon after a gun 

was recovered from his car during an encounter with Chicago 

police. At his first trial, the jury deadlocked and the district 

court declared a mistrial. Shaffers was then tried again, with 

an obstruction of justice count added based on his attempts to 

influence witness testimony before the first trial. He was convicted on both counts.
2 No. 21-1134 

Shaffers now appeals his felon-in-possession conviction 

on four separate grounds. He argues that the gun should have 

been suppressed; that his Confrontation Clause rights were 

violated by admitting a witness’s grand jury testimony; that 

the evidence of possession was insufficient to support his conviction; and that his prior aggravated assault conviction was 

improperly considered a “crime of violence” at sentencing. 

We reject all four challenges. 

I. Motion to Suppress

Shaffers first argues that the gun recovered from his car 

should have been suppressed as the product of an unlawful 

stop. On that issue, we review the district court’s legal conclusions de novo and its factual findings for clear error. United 

States v. Wood, 16 F.4th 529, 532–33 (7th Cir. 2021). 

A. Factual and Procedural Background

On the night of October 15, 2016, Shaffers attended a party 

in Chicago. He left around midnight with three people: Talieta 

Fulton, Cornell Westberry, and Shirley Butler. They all got 

into his car—with Shaffers in the driver’s seat and Fulton in 

the passenger’s seat—and began smoking cigarettes and listening to music while parked.

Meanwhile, Chicago Police Officers Jason Streeper and 

Brendan Bruno were patrolling nearby in an unmarked police 

car. As they drove down an alley, they heard loud music coming from Shaffers’ car and smelled marijuana. They stopped 

directly behind the car, blocking it from pulling out. The officers then approached the car, identified themselves, and instructed the occupants to put their hands in the air. Officer 

Streeper had his gun drawn. He testified that Shaffers initially 

failed to comply with his directions and instead was “making 
No. 21-1134 3

furtive movements with his hands below the [driver’s] seat.” 

Shaffers eventually put his hands on the steering wheel, but 

he then fled before the officers could detain him. While Officer 

Bruno unsuccessfully gave chase, Officer Streeper recovered 

a gun from the floorboard between the driver’s seat and the 

console. Several months later, Shaffers was taken into custody 

when he appeared in state court for a traffic infraction, and he 

was eventually charged in federal court with being a felon in 

possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Shaffers filed a motion to suppress the gun before his first 

trial on the felon-in-possession charge. After holding an evidentiary hearing, the district court concluded that the officers’ 

initial approach was a seizure because Shaffers could not 

move his car and a reasonable person would not have felt free 

to leave. The court also held, however, that the seizure was 

permissible under Terry v. Ohio, 392 U.S. 1 (1968). In the 

court’s view, the officers had reasonable suspicion for a Terry

stop based on the combination of (1) the car’s location in an 

alley in a high-crime area, playing loud music in violation of 

a local noise ordinance; (2) the smell of marijuana around the 

car; and (3) Shaffers’ furtive movements and failure to immediately raise his hands. The court therefore denied Shaffers’ 

motion to suppress.

B. Analysis

On appeal, the government no longer disputes that the officers’ actions constituted a seizure. The question is whether 
4 No. 21-1134 

the stop violated the Fourth Amendment. We agree with the 

district court’s conclusion that it did not.1 

The Fourth Amendment protects against “unreasonable 

searches and seizures.” U.S. Const. amend. IV. Accordingly, 

an officer conducting an investigatory stop must have “reasonable suspicion that ‘criminal activity may be afoot.’” 

United States v. Watson, 900 F.3d 892, 894 (7th Cir. 2018), quoting Terry, 392 U.S. at 30. Reasonable suspicion requires “more 

than a hunch but less than probable cause.” United States v. 

Wilson, 963 F.3d 701, 703 (7th Cir. 2020). Our analysis focuses 

on “the totality of the circumstances” and asks whether the 

officer had “a particularized and objective basis for suspecting 

the particular person stopped of criminal activity.” Navarette 

v. California, 572 U.S. 393, 396–97 (2014), quoting United States 

v. Cortez, 449 U.S. 411, 417–18 (1981). 

Applying that standard here, we conclude that Officers 

Streeper and Bruno had a reasonable suspicion to justify the 

stop. At the moment they blocked in Shaffers’ car, the officers 

had a reasonable, articulable suspicion that the occupants 

were violating a Chicago noise ordinance. As relevant here, 

the ordinance prohibits using a radio “to generate any sound, 

for the purpose of communication or entertainment, that is 

louder than average conversational level at a distance of 100 

feet or more” between 10:00 p.m. and 8:00 a.m. Chi. Mun. 

Code § 8-32-070(b). At the suppression hearing, Officer 

Streeper testified that he heard “loud music” with “a lot of 

bass” coming from the car. Officer Bruno agreed, testifying 

1 In the district court, Shaffers also challenged the warrantless search 

of his car as unreasonable, but he has not pursued that argument on appeal.
No. 21-1134 5

that the music “was loud enough that we heard it on approach.” Even Westberry and Butler testified that the music 

was loud. Based on these facts, the officers had an articulable, 

objective basis for believing that the occupants of Shaffers’ car 

were violating the noise ordinance. 

To compound the officers’ suspicion, they also smelled 

marijuana as they drove down the alley. Contrary to Shaffers’ 

assertion, the officers did not have merely a “generalized suspicion that someone in the alley possessed cannabis.” Both officers specifically testified that they smelled marijuana coming from the vicinity of Shaffers’ car. In addition, Butler testified that she and Westberry had smoked marijuana on a porch 

before leaving the party, that she had the marijuana joint in 

her pocket when she got into the car, and that she then threw 

the joint out the window. At the time, Illinois prohibited even 

recreational use or possession of marijuana. The officers 

therefore had reason to believe that the occupants of the car 

were violating Illinois law. Cf. United States v. Franklin, 547 

F.3d 726, 733 (7th Cir. 2008) (“A police officer who smells marijuana coming from a car has probable cause to search that 

car.”). 

Based on the totality of the circumstances—including the 

combination of the loud music and the smell of marijuana—

the officers had a sufficient basis to block Shaffers’ car and investigate.2 

2 Both the district court and the government also relied on Shaffers’

movements around the floorboard as an additional justification for the 

stop. Those movements, however, occurred as the officers were approaching the car—after the seizure had occurred. We have made clear that the 

reasonableness of a stop turns on “what facts were known to [the officer] 

at the time she stopped the vehicle,” United States v. Jackson, 962 F.3d 353, 
6 No. 21-1134 

II. Confrontation Clause

Second, Shaffers challenges his conviction on the ground 

that the admission of Talieta Fulton’s grand jury testimony as 

substantive evidence violated the Confrontation Clause of the 

Sixth Amendment. We review that question de novo. United 

States v. Norwood, 982 F.3d 1032, 1042 (7th Cir. 2020). 

A. Factual and Procedural Background

As noted above, Fulton was in the passenger’s seat of Shaffers’ car on the night of October 15, 2016. After Shaffers fled 

and Officer Streeper discovered the gun, Fulton and the other 

two passengers were arrested and taken to the police station. 

They were eventually released without being charged.

In May 2017, Fulton appeared before a federal grand jury. 

She testified that she had not known there was a gun in the 

car that night, that she had seen the police remove the gun 

from under the driver’s seat, and that the gun was not hers. 

Shaffers was then arrested and charged in June 2017. 

Almost two years later, during Shaffers’ first trial, Fulton 

testified that she had no memory of the events of October 15. 

She also said she did not recall her testimony before the grand 

jury, although she vaguely remembered the government’s flying her to Chicago. Over the defense’s objection, the district 

court allowed the government to introduce Fulton’s grand 

jury testimony as a prior inconsistent statement under Federal 

Rule of Evidence 801(d)(1)(A). Before the testimony was read, 

Shaffers’ counsel cross-examined Fulton, asking whether her 

lack of memory was caused by a medical condition or a fear 

358 (7th Cir. 2020), so we do not consider Shaffers’ movements in concluding that the stop was permissible at the outset. 
No. 21-1134 7

of prosecution. He also asked about her prior criminal history. 

An ATF agent then read Fulton’s grand jury testimony aloud.

A similar process played out in Shaffers’ second trial. Fulton continued to disclaim any memory of the events in question or of testifying before the grand jury. Over a defense objection, the district court again permitted her grand jury testimony to be used as substantive evidence. This time, Fulton 

read the testimony herself. Shaffers’ counsel then cross-examined her. He inquired into her lack of memory and asked if it 

was because she had been drinking on the night of her arrest. 

Counsel also questioned whether Fulton was “claiming not to 

remember anything” because she feared prosecution. And he 

asked her to confirm that the government was paying for her 

airline ticket and hotel during the trial, which she did. During 

closing argument, Shaffers’ counsel emphasized several times 

that Fulton “chose not to remember” the relevant events. 

B. Analysis

Shaffers argues that the district court’s decision to allow 

the grand jury testimony as substantive evidence violated the 

Confrontation Clause. Because Shaffers had an opportunity to 

cross-examine Fulton and expose weaknesses in her answers 

to the jury, we conclude that admission of her grand jury testimony did not violate the Confrontation Clause.

In criminal cases, the Sixth Amendment provides that “the 

accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. This guarantee 

has long been understood to include “the right of cross-examination.” Douglas v. Alabama, 380 U.S. 415, 418 (1965). The Confrontation Clause guarantees only “an opportunity for effective 

cross-examination, not cross-examination that is effective in 
8 No. 21-1134 

whatever way, and to whatever extent, the defense might 

wish.” United States v. Owens, 484 U.S. 554, 559 (1988), quoting 

Kentucky v. Stincer, 482 U.S. 730, 739 (1987). The Clause does 

not guarantee that “every witness called by the prosecution 

will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion.” Delaware v. Fensterer, 474 U.S. 15, 

21–22 (1985). Instead, “the Confrontation Clause is generally 

satisfied when the defense is given a full and fair opportunity 

to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.” Id. at 

22. 

Our analysis begins with the Supreme Court’s decision in 

Owens. In that case, the witness was a prison counselor who 

had been the victim of a violent assault. 484 U.S. at 556. In an 

interview with an FBI agent almost one month after the incident, he identified defendant Owens as the assailant. At trial, 

the witness testified that he recalled identifying Owens during the interview, but he could not remember seeing his attacker. The Court held that the witness’s identification of Owens could be admitted because the defendant had the opportunity “to bring out such matters as the witness’ bias, his lack 

of care and attentiveness, his poor eyesight, and even ... the 

very fact that he has a bad memory.” Id. at 559. Defense counsel’s closing argument, in fact, had emphasized the witness’s 

memory loss and the possibility that his identification of Owens was unreliable. While such attacks on the witness’s 

memory may not always succeed, the Court reiterated that 

“successful cross-examination is not the constitutional guarantee.” Id. at 560. 
No. 21-1134 9

That reasoning leads us to uphold the admission of Fulton’s grand jury testimony. Here, as in Owens, the defense 

could not elicit the foundation for the witness’s past belief, 

“but other means of impugning the belief [were] available.”

484 U.S at 559. Shaffers’ counsel had the opportunity to probe 

Fulton’s lack of memory and to try to cast doubt on the reliability of her testimony. Counsel took full advantage of that 

opportunity at both trials, asking about her prior criminal history, the reasons for her lack of memory, and her potential 

bias in favor of the government. During closing argument, 

counsel repeatedly asserted that Fulton had chosen not to remember the events in question—just as Owens’ lawyer attacked the witness’s memory loss and argued that his testimony was not credible, id. at 560. Shaffers was therefore able 

to take advantage of “realistic weapons” to undermine Fulton’s credibility. Id.; see also United States v. Cooper, 767 F.3d 

721, 728 (7th Cir. 2014) (explaining admission of grand jury 

testimony where witness claimed at trial that she could not 

recall the statements or the underlying events). 

Shaffers’ attempts to distinguish Owens are not persuasive. 

He notes that the witness there suffered only partial memory 

loss, as he was able to testify about parts of the attack and 

about the interview where he identified Owens. 484 U.S. at 

556. But we rejected that distinction in United States v. Keeter, 

130 F.3d 297 (7th Cir. 1997), where a witness’s grand jury testimony incriminated one of the defendants. At trial, that witness claimed that he did not remember any of the underlying 

events or his appearance before the grand jury. Id. at 302. The 

defendant argued on appeal that his case was different from 

Owens because the witness could not even remember making 

the identification. We concluded that the difference was immaterial, holding that the Confrontation Clause is satisfied 
10 No. 21-1134 

“when the witness must look the accused in the eye in court; 

shortcomings in the declarant’s memory may be made known 

to the jury.” Id. 

Shaffers did not address Keeter in his briefs but suggested 

at oral argument that it is distinguishable because the witness 

acknowledged the prior statement as his own, whereas Fulton 

did not. The record, however, appears to contradict that point. 

Fulton may not have remembered what she said before the 

grand jury, but she did identify the transcript of her testimony: 

Q. Ms. Fulton, I’m sorry. Have you seen this 

transcript before? 

A. Yes. 

Q. And this is a transcript of your testimony before the grand jury on May 11th of 2017? 

A. Yes.

Shaffers also relies on Douglas, but the witness in that case invoked the privilege against self-incrimination and then refused to answer when repeatedly asked, “Did you make that 

statement?” 380 U.S. at 416–17. Fulton, by contrast, acknowledged that the transcript of the grand jury testimony was hers 

but said she could not recall the underlying substance. She 

testified that she remembered “coming out here [to Chicago]” 

and said: “I know I came because there was an action, but 

what was spoken, I don’t remember.” We therefore decline to 

adopt Shaffers’ proposed distinctions. The guidance of Owens

and Keeter controls here. 

Nor are we convinced by Shaffers’ assertion that Crawford 

v. Washington, 541 U.S. 36 (2004), changed the relevant 
No. 21-1134 11

analysis. In that case, the Supreme Court reiterated that when 

a witness “appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior 

testimonial statements. ... The Clause does not bar admission 

of a statement so long as the declarant is present at trial to 

defend or explain it.” Id. at 60 n.9; accord, California v. Green, 

399 U.S. 149, 162 (1970) (“[W]here the declarant is not absent, 

but is present to testify and to submit to cross-examination, 

our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem.”). After Crawford, we have continued to follow the Owens approach to cases of claimed memory loss. See, 

e.g., Cookson v. Schwartz, 556 F.3d 647, 652 (7th Cir. 2009) (“We 

agree with the State that Owens and Keeter are dispositive 

here.”); United States v. Ghilarducci, 480 F.3d 542, 548–49 (7th 

Cir. 2007) (relying on both Owens and Fensterer). So while 

Crawford was an important milestone in Confrontation Clause 

jurisprudence, we do not read the decision as undermining 

our established analysis in cases involving a witness’s 

claimed lack of memory about prior testimony. 

Finally, we agree with Shaffers that a witness’s physical 

presence in the courtroom alone is not enough to satisfy the 

Confrontation Clause, but no one argues otherwise. It is well 

established that the right of confrontation “means more than 

being allowed to confront the witness physically.” Davis v. 

Alaska, 415 U.S. 308, 315 (1974). At oral argument, the government properly conceded that there might be a constitutional 

violation if a witness took the stand for cross-examination and 

then refused to answer any questions at all. That situation 

would be more analogous to that of a witness who invokes 

the privilege against self-incrimination—but it is not what 

happened here. See Owens, 484 U.S. at 561–62 (noting that 
12 No. 21-1134 

witness’s assertion of privilege might impermissibly undermine cross-examination but that the same effect “is not produced by the witness’ assertion of memory loss—which ... is 

often the very result sought to be produced by cross-examination, and can be effective in destroying the force of the prior 

statement”). Fulton responded to a number of questions 

about her memory loss, and Shaffers’ counsel had the opportunity to probe her explanation and attack her credibility before the jury. Under those circumstances, the admission of 

Fulton’s grand jury testimony did not violate the Confrontation Clause.3 

III. Sufficiency of the Evidence

Next, Shaffers argues that there was insufficient evidence 

to support his conviction under the felon-in-possession statute. In reviewing that question, “we afford great deference to 

a jury’s verdict of conviction.” United States v. Godinez, 7 F.4th 

628, 638 (7th Cir. 2021). We will overturn a conviction only 

where “the record is devoid of evidence from which a reasonable jury could find guilt beyond a reasonable doubt.” Id., 

quoting United States v. Khan, 937 F.3d 1042, 1055 (7th Cir. 

2019). And we view the evidence in the light most favorable 

to the government, United States v. Wallace, 991 F.3d 810, 812 

(7th Cir. 2021), which means giving the government the benefit of conflicts in the evidence and reasonable inferences from 

the evidence. While we have said that this standard poses a 

significant hurdle for a defendant, we have also made clear 

that “the height of the hurdle depends directly on the strength 

of the government’s evidence.” United States v. Moreno, 922 

3 Because we find no Confrontation Clause violation, we do not address the government’s argument that any such violation was harmless.
No. 21-1134 13

F.3d 787, 793 (7th Cir. 2019), quoting United States v. Garcia, 

919 F.3d 489, 496–97 (7th Cir. 2019). 

To convict Shaffers, the government needed to prove that 

(1) he had been convicted of a crime punishable by more than 

one year in prison, (2) he knowingly possessed the gun, (3) he 

knew he was in a category of persons barred from possessing 

a gun, and (4) the gun had traveled in or affected interstate or 

foreign commerce. See 18 U.S.C. § 922(g)(1); United States v. 

Perryman, — F.4th —, —, 2021 WL 5937729, at *4 (7th Cir. Dec. 

16, 2021). See generally Rehaif v. United States, 139 S. Ct. 2191 

(2019) (holding that knowledge of status is element under 

§ 922(g)). Only the second element—possession—is disputed 

here. 

The government did not present any physical proof that

Shaffers possessed the gun, relying instead on a theory of constructive possession. To prove constructive possession, the 

government had to show a “nexus” connecting Shaffers to the 

gun. United States v. Davis, 896 F.3d 784, 790 (7th Cir. 2018). 

Such a nexus is typically established in one of two ways. First, 

if the defendant had exclusive control over the property 

where the gun was found, then “a jury may reasonably infer 

that he constructively possessed the items, including the contraband, found on that property.” United States v. Griffin, 684 

F.3d 691, 695 (7th Cir. 2012). In the absence of exclusive control, however, the government can also establish constructive 

possession by showing that the defendant had “a ‘substantial 

connection’ to the location where the [gun] was found.” Davis, 

896 F.3d at 790, quoting Griffin, 684 F.3d at 695. 

Shaffers argues that the government failed to establish a 

sufficient nexus linking him to the gun, pointing out that three 

other people were in the car. It is true that mere proximity to 
14 No. 21-1134 

contraband is not enough to establish a nexus. Davis, 896 F.3d 

at 790. We have also concluded, however, that “proximity 

coupled with evidence of some other factor—including connection with [an impermissible item], proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise is enough to sustain a 

guilty verdict.” Id. (alteration in original), quoting Griffin, 684 

F.3d at 696. 

At least two such factors were present here. First, viewing 

the evidence in the light most favorable to the government, 

Shaffers was hunched over and making furtive movements 

with his hands near the floorboard as the officers approached 

the car. Officer Streeper testified that he thought Shaffers 

“was trying to conceal contraband or a weapon.” Moments 

later, Officer Streeper recovered the gun from the driver’s side 

floorboard, the same place where Shaffers had been making 

furtive movements with his hands. The jury could reasonably 

conclude that Shaffers had been trying to conceal the gun.4 

Second, Shaffers fled from the officers. In Griffin, another 

felon-in-possession case, we reiterated that mere proximity to 

contraband is not a sufficient nexus but recognized that “a defendant’s flight ... is sufficient to overcome the mere-presence 

principle.” 684 F.3d at 697; accord, e.g., United States v. Morris, 

576 F.3d 661, 668 (7th Cir. 2009) (“We have previously identified a defendant’s flight as the ‘something more’ sufficient to 

4 Shaffers argues that none of the categories of evidence we viewed as 

sufficient to sustain a felon-in-possession conviction in United States v. 

Chairez are present here, but in that case we specifically noted that the government “presented no evidence that Chairez ... made a gesture towards 

the gun.” 33 F.3d 823, 825 (7th Cir. 1994). Here, according to Officer 

Streeper’s testimony, Shaffers did just that.
No. 21-1134 15

overcome the mere presence doctrine.”), citing United States v. 

Starks, 309 F.3d 1017, 1025 (7th Cir. 2002). In response, Shaffers 

insists that he fled because he feared trouble for driving on a 

revoked license. That assertion presented a question for the 

jury. It was not unreasonable for the jury to reject that explanation and to conclude instead that Shaffers fled because he 

knew the police would discover the gun. 

In addition to the furtive movements and flight, Shaffers 

lied to law enforcement officials after his arrest and attempted 

to influence witness testimony before trial. According to the 

ATF agent who conducted the post-arrest interview, Shaffers 

said that he was at home on the night in question. On crossexamination, Shaffers admitted that he had lied. Furthermore, 

the jury heard audio recordings of telephone calls that Shaffers made after his arrest to Fulton and to Paris Madlock, the 

mother of his child. Madlock testified that Shaffers wanted to 

pay witnesses to say he had not been present on the night in 

question. This evidence further supported the jury’s finding 

that Shaffers possessed the gun. See Davis, 896 F.3d at 791 (relying in part on defendant’s attempt to influence witness testimony in finding sufficient evidence to support constructive 

possession). The evidence was sufficient to support Shaffers’ 

conviction. 

IV. Sentencing

Finally, Shaffers challenges his sentence on the ground 

that the district court improperly treated his prior aggravated 

assault conviction as a “crime of violence” under the Sentencing Guidelines. We review de novo that issue of law. United 

States v. Williams, 949 F.3d 1056, 1066 (7th Cir. 2020). 
16 No. 21-1134 

A. Sentencing Proceedings

Under the Sentencing Guidelines, the base offense level 

for a person convicted under 18 U.S.C. § 922(g)(1) depends in 

part on whether he has any prior convictions for “crimes of 

violence.” U.S.S.G. § 2K2.1(a). That term is defined by reference to another section of the Guidelines, which states that a 

crime of violence is: 

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 person of another, or 

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, 

robbery, arson, extortion, or the use or unlawful 

possession of a firearm described in 26 U.S.C. 

§ 5845(a) or explosive material as defined in 18 

U.S.C. § 841(c). 

§ 4B1.2(a). We conclude that the district court correctly classified the prior conviction as a crime of violence under the elements clause in § 4B1.2(a)(1). We need not decide whether it 

would also be a crime of violence under the enumerated offenses clause in § 4B1.2(a)(2). See United States v. Carter, 961 

F.3d 953, 957 (7th Cir. 2020) (taking same approach in analyzing Iowa aggravated assault statute).

The parties agree that Shaffers’ 2012 conviction for aggravated discharge of a firearm qualified as a crime of violence. 

The dispute is over Shaffers’ 2008 conviction for aggravated 

assault. If it counts as a crime of violence, his base offense 
No. 21-1134 17

level is 26; if it does not, his base offense level would be only 

22. The district court found that the aggravated assault conviction qualified.

B. The Categorical Approach

To determine whether a prior offense is a crime of violence 

under the applicable version of the Guidelines, we apply the 

now-familiar categorical approach. United States v. Vesey, 966 

F.3d 694, 696–97 (7th Cir. 2020). We focus not on the actual 

facts of the prior case but on the elements in the statute of conviction to determine whether they match the guideline definition of a crime of violence. Id. at 697. “If the state law defines 

an offense more broadly than the Guidelines, the prior conviction does not qualify as a crime of violence; if the state-law 

elements match up with or are narrower than the Guidelines, 

however, then the prior conviction qualifies.” Carter, 961 F.3d 

at 956. 

The analysis requires another step if the statute of conviction contains multiple parts. Some statutes include multiple 

offenses with their own sets of elements, while others include 

multiple “means” of satisfying specific elements. Statutes that 

fall into the first category are “divisible,” meaning that the 

sentencing court must determine which one of the multiple 

offenses was committed. Carter, 961 F.3d at 956. Accordingly, 

the court may look to “a limited class of documents (for example, the indictment, jury instructions, or plea agreement 

and colloquy) to determine what crime, with what elements, 

a defendant was convicted of.” Vesey, 966 F.3d at 697, quoting 

Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). After considering those materials—known as Shepard documents—the 

court compares the crime of conviction to the guideline definition to determine whether the prior offense is a crime of 
18 No. 21-1134 

violence. See Mathis, 136 S. Ct. at 2249; see also Shepard v. 

United States, 544 U.S. 13, 26 (2005).5

C. Shaffers’ Prior Conviction

Shaffers pleaded guilty to aggravated assault in 2008. At 

the time, Illinois law provided: “A person commits an aggravated assault when, in committing an assault, he ... [k]nows 

the individual assaulted to be a peace officer ... engaged in 

the execution of any of his official duties.” 720 ILCS 5/12-

2(a)(6) (2008).6 The term “assault” was defined in a separate 

provision as engaging “in conduct which places another in 

reasonable apprehension of receiving a battery.” 720 

ILCS 5/12-1(a) (2008). And in turn the definition of “battery” 

appeared in yet another provision: “A person commits battery 

if he intentionally or knowingly without legal justification 

and by any means, (1) causes bodily harm to an individual or 

(2) makes physical contact of an insulting or provoking nature 

with an individual.” 720 ILCS 5/12-3(a) (2008). 

We have previously held that the Illinois battery statute is 

divisible. Vesey, 966 F.3d at 697. A conviction under the first 

clause—for causing bodily harm—has as an element “the use, 

attempted use, or threatened use of force” and thus is a crime 

of violence, while a conviction under the second clause does 

5 In 2018, the Sentencing Commission proposed amendments to the 

Guidelines that would forgo rigid adherence to the categorical method 

and instead allow a court to consider the conduct that formed the basis of 

the defendant’s prior conviction. Sentencing Guidelines for United States 

Courts, 83 Fed. Reg. 65400, 65407–11 (Dec. 20, 2018). As we have noted 

before, however, the Commission has been unable to follow through on 

that proposal because it has lacked a quorum for years. Bridges v. United 

States, 991 F.3d 793, 798 (7th Cir. 2021).

6 The relevant language now appears in 720 ILCS 5/12-2(b)(4.1).
No. 21-1134 19

not. Id.; see also United States v. Montez, 858 F.3d 1085, 1092 

(7th Cir. 2017). The district court here turned to the Shepard

documents to determine which prong of the battery statute 

formed the basis of Shaffers’ 2008 conviction. The court 

acknowledged that it was permitted “to look at a limited universe of documents to determine not how the offense was 

committed but ... which prong of the statute is involved 

here.” From the plea colloquy, the court concluded that Shaffers’ conviction was based on the first prong of the battery 

statute because the charging language—which the sentencing 

court had read into the record at the time of the plea—stated 

that Shaffers had pointed a firearm in the direction of police 

officers. As a result, the court found that Shaffers’ prior conviction qualified as a crime of violence and calculated his base 

offense level accordingly.

Shaffers argues that the district court erred in two ways. 

First, he contends that the court should not have analyzed the 

elements of the battery statute because it was not the statute 

of conviction. Second, he asserts that the district court should 

not have considered the fact that he pointed a gun at the officers because the categorical approach forbids such inquiry into 

the facts underlying the conviction. 

Both arguments are foreclosed by our decision in Vesey. 

The defendant in that case, like Shaffers, had a prior conviction under the Illinois aggravated assault statute. Vesey, 966 

F.3d at 695. Because that statute incorporates the divisible Illinois battery statute, the district court looked to the Shepard

documents to ascertain which prong of the battery statute 

supported Vesey’s conviction. Id. at 697–98. Those documents 

showed that Vesey had swung a shower rod at a correctional 

officer, so the court concluded that he had been convicted 
20 No. 21-1134 

under the first prong of the statute and therefore classified the 

conviction as a crime of violence. We affirmed. 

That’s the same process the district court followed here. 

First, the court correctly recognized that the Illinois battery 

statute is divisible. It is true, as Shaffers points out, that Mathis

instructs the sentencing court to focus on “the elements of the 

crime of conviction,” 136 S. Ct. at 2248, and that the crime of 

conviction here was aggravated assault—not battery. But 

where the crime of conviction incorporates the definition of 

another crime—as the Illinois aggravated assault statute 

does—we have often recognized that the sentencing court 

may need to evaluate whether that other statute is divisible. 

See Vesey, 966 F.3d at 697–98; Carter, 961 F.3d at 957 (applying 

modified categorical approach for aggravated assault conviction because underlying assault statute was divisible); United 

States v. Lynn, 851 F.3d 786, 796–97 (7th Cir. 2017) (applying 

modified categorical approach for aggravated battery conviction because underlying battery statute was divisible). If the 

district court had not analyzed the elements of the battery 

statute, it would not have had a complete picture of the elements the state needed to prove to convict Shaffers of aggravated assault. Mathis did not impose such an illogical constraint on sentencing courts. 

Nor did the district court err by considering the Shepard

documents after determining that the Illinois battery statute 

was divisible. Mathis held that the sentencing court may look 

to materials such as the plea agreement and colloquy “to determine what crime, with what elements, a defendant was 

convicted of.” 136 S. Ct. at 2249. That is precisely what the 

district court did here. Based on the plea colloquy, the court 

concluded that Shaffers’ aggravated assault conviction 
No. 21-1134 21

involved the first prong of the battery statute—fear of causing 

bodily harm—because he had pointed a gun at the officers. As 

in Vesey, the district court was permitted to look to the Shepard

documents “to determine which prong of the battery statute 

formed the basis of the defendant’s conviction.” 966 F.3d at 

698 (emphasis omitted); see also Carter, 961 F.3d at 957 (consulting Shepard documents where Iowa aggravated assault 

statute incorporated definition of assault and assault statute 

itself was divisible); Lynn, 851 F.3d at 796–97 (consulting Shepard documents where Illinois aggravated battery statute incorporated definition of battery and battery statute itself was 

divisible). The classification of Shaffers’ aggravated assault 

conviction as a crime of violence was legally correct. 

AFFIRMED.