In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-2037

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRIAN K. BILLUPS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 06 CR 213—Barbara B. Crabb, Chief Judge.

____________

ARGUED APRIL 3, 2008—DECIDED JULY 29, 2008

____________

Before FLAUM, MANION, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Brian Billups was convicted of a

drug crime and sentenced as a career offender under

U.S.S.G. § 4B1.1(a), based in part on a prior Wisconsin

felony conviction for false imprisonment. The career

offender designation increased Billups’s total offense

level and resulted in an advisory guidelines imprisonment range of 151-188 months. The district court sentenced Billups to 151 months of imprisonment and three

years of supervised release. On appeal, Billups challenges

his career offender designation, arguing that his false

imprisonment conviction was not a “crime of violence”
2 No. 07-2037

under U.S.S.G. § 4B1.2(a). Because we agree with the

district court’s determination that the Wisconsin offense

constitutes a crime of violence, we affirm.

I. Background

Billups sold cocaine in Madison, Wisconsin. He pled

guilty, pursuant to a plea agreement, to possession with

intent to distribute cocaine, in violation of 21 U.S.C.

§ 841(a)(1). The presentence report indicated, and the

district court found at sentencing, that Billups was a

career offender, U.S.S.G. § 4B1.1(a), based upon two

prior felony convictions, one for delivery of a controlled

substance and one for false imprisonment. Billups’s career

offender status increased his total offense level, which

incorporated a three-level reduction for acceptance of

responsibility under U.S.S.G. § 3E1.1, from 25 to 29. This

increase, when combined with Billups’s category VI

criminal history score, triggered a corresponding

increase in the recommended imprisonment range, from

110-137 to 151-188 months. The district court found that “a

sentence at the low end of the advisory guideline range

when coupled with the maximum term of supervised

release is reasonable, necessary, and sufficient to protect

the community, provide just punishment, and achieve

parity with the sentences of similarly situated offenders.”

Accordingly, the court sentenced Billups to 151 months

of imprisonment, three years of supervised release, and

a $100 special assessment.

Billups now appeals his sentence, contending that the

district court erred in classifying him as a career offender.

Because his instant offense was a controlled substance

offense, and because he was at least eighteen years old at
No. 07-2037 3

the time he committed the offense, Billups was properly

classified as a career offender if he had “at least two prior

felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). Billups

concedes that his prior felony conviction for delivery of

a controlled substance qualifies as a controlled substance offense. However, he contests the categorization of

his Wisconsin false imprisonment conviction, under Wis.

Stat. § 940.30, as a “crime of violence” for purposes of

§§ 4B1.1(a), 4B1.2(a). Thus, the sole issue on review is

the classification of Billups’s false imprisonment conviction as a crime of violence.

II. Discussion

A crime of violence is an offense punishable by more

than one year of imprisonment that: (1) “has as an element

the use, attempted use, or threatened use of physical

force against the person of another”; or (2) “is burglary of

a dwelling, arson, or extortion, involves use of explosives,

or otherwise involves conduct that presents a serious

potential risk of physical injury to another.” U.S.S.G.

§ 4B1.2(a). The crime-of-violence determination is a legal

inquiry into the nature of the conviction, not a factual

inquiry into the underlying conduct of the defendant.

United States v. Peters, 462 F.3d 716, 719 (7th Cir. 2006).

Thus, in determining whether a prior conviction qualifies

as a crime of violence, “we start—and usually will

end—with the elements of the statute of conviction and the

facts as stated in the charging document.” United States v.

Newbern, 479 F.3d 506, 508 (7th Cir. 2007) (citation omitted).

However, where the statutory elements and the charging

document fail to resolve the issue, we may then look to

additional sources, including the written plea agreement,
4 No. 07-2037

the transcript of the plea colloquy, admissions by the

defendant, or comparable judicial records. Peters, 462

F.3d at 719 (citing Shepard v. United States, 544 U.S. 13, 16

(2005)); Newbern, 479 F.3d at 508.

Because the instant charging document—alleging that

Billups did “intentionally restrain[ ] another . . . without

that person’s consent and with knowledge that he had no

lawful authority to do so”—offers little beyond the statutory language, we first focus on that statutory language. See

Newbern, 479 F.3d at 508 (crime-of-violence inquiry ordinarily begins and ends with statutory elements and

charging document). The false imprisonment statute,

Wis. Stat. § 940.30, provides, “Whoever intentionally confines or restrains another without the person’s consent and

with knowledge that he or she has no lawful authority to

do so is guilty of a Class H felony.” The statute does not

have as a requisite element the use, attempted use, or

threatened use of physical force. U.S.S.G. § 4B1.2(a)(1). Nor

is it burglary, arson, or extortion, and it does not involve

the use of explosives. U.S.S.G. § 4B1.2(a)(2). Therefore,

the sole question, and the crux of the current appeal, is

whether Wisconsin’s false imprisonment offense “otherwise involves conduct that presents a serious potential

risk of physical injury to another.” Id.

The district court concluded that the Wisconsin false

imprisonment offense does present such a risk. At sentencing, Billups pointed out that the offense does not have a

statutory element involving the use or threat of force. In

addition, he directed the court’s attention to the Wisconsin jury instructions, which indicate that confinement

or restraint may be achieved without the use of physical

force. However, the court rejected this argument, and

explained:
No. 07-2037 5

It seems to me . . . that any time that you have one

person exercising power over another person,

whether it’s by physical force, words, threats, that there

is an inherent risk of serious potential injury. The

person [who is] restrained may not want to be restrained and may react by causing injury. The person—if the person does try to leave, get out, get away,

get out from under the restraint of the person that’s

imposing the restraint, that person may resort to

physical means even if he or she hasn’t done so before

that. So it just seems to me to connote a dangerous

situation and dangerous to the victim in particular

when the person restrains the victim somehow in a

car, moving car, in a room, in a place, any time when

the person’s freedom of movement is being restricted for no lawful reason.

Thus, the court concluded that the offense “involves

conduct that presents a serious potential risk of physical

injury to another,” § 4B1.2(a)(2), rendering it a crime

of violence and Billups a career offender pursuant to

§ 4B1.1(a).

Before turning to the merits of Billups’s challenge to this

determination, we must resolve a dispute regarding the

standard of review. Ordinarily, our review of the district

court’s career offender determination, as well as the

underlying crime-of-violence determination, is de novo.

United States v. Kindle, 453 F.3d 438, 440 (7th Cir. 2006).

However, the government argues that we should review only for plain error. At sentencing, Billups made

the same overall argument that he makes here—that his

false imprisonment conviction should not be classified

a crime of violence. However, whereas in the district

court he relied primarily upon the Wisconsin jury instruc-
6 No. 07-2037

tions for the false imprisonment offense and the absence of

a statutory element involving the use of force, here he

introduces the statutory definition of “without consent” as

additional support for his argument. The government

argues that because the statutory definition of “without consent” was not before the district court, Billups

forfeited that aspect of his challenge, limiting our review

to plain error. We disagree. Billups’s challenge below

was sufficient to preserve his current argument, even if

he offers a new twist on that argument based upon additional authority on appeal. See Bew v. City of Chicago, 252

F.3d 891, 895-96 (7th Cir. 2001) (citing Yee v. City of

Escondido, 503 U.S. 519, 534-35 (1992) (“Once a federal

claim is properly presented, a party can make any argument in support of that claim; parties are not limited to

the precise arguments they made below.”)). Therefore,

we review de novo both the district court’s career

offender determination and the underlying crime-ofviolence determination. Kindle, 453 F.3d at 440.

Turning to the merits of Billups’s challenge, he contends that the commission of the Wisconsin false imprisonment offense does not invariably pose a risk of physical

harm to the victim, because the victim’s confinement may

be effected through deception or fraud, rather than force.

In this respect, Billups analogizes the offense to Indiana’s

criminal confinement offense, which we have held is not

necessarily a crime of violence. United States v. Gilbert,

464 F.3d 674, 682 (7th Cir. 2006); United States v. Hagenow,

423 F.3d 638, 644 (7th Cir. 2005). Under Indiana law, a

person commits criminal confinement where he either

“confines another person without the other person’s

consent,” Ind. Code § 35-42-3-3(a)(1), or “removes another

person by fraud, enticement, force, or threat of force, from
No. 07-2037 7

one (1) place to another,” Ind. Code § 35-42-3-3(a)(2). In

Hagenow, we held that, because one could commit the

offense “in a manner that, although unpleasant, does not

present ‘a serious potential risk of physical injury’ to the

other,” the Indiana offense is not, on its face, a crime of

violence. 423 F.3d at 644. We elaborated on this holding

in Gilbert, explaining that because the Indiana criminal

confinement statute “expressly recognizes that the offense can be committed through non-violent means such

as fraud or enticement . . . there is nothing about the

offense as defined that poses an inherent risk of serious

physical injury to another even when the crime is committed without resort to force.” 464 F.3d at 682. Thus, we

have determined that Indiana’s criminal confinement

offense is not necessarily a crime of violence for purposes of § 4B1.2(a).

Billups points out that Wisconsin’s false imprisonment

offense can also be committed without resort to force;

therefore, he argues, it too should not receive categorical

treatment as a crime of violence. Under Wisconsin law,

false imprisonment must be effected “without the [victim]’s

consent,” but the term “without consent” embraces both

an absence of consent in fact and consent that is obtained

pursuant to deceit or a mistake of fact:

“Without consent” means no consent in fact or that

consent is given for one of the following reasons:

(a) Because the actor put the victim in fear by the use

or threat of imminent use of physical violence on the

victim, or on a person in the victim’s presence, or on

a member of the victim’s immediate family;

(b) Because the actor purports to be acting under

legal authority; or
8 No. 07-2037

1 Because the ACCA and the residual clause of § 4B1.2(a) use

identical language—“otherwise involves conduct that presents a serious potential risk of physical injury to another”—

we have interpreted the two provisions as compelling the same

result. United States v. Rosas, 410 F.3d 332, 335-36 (7th Cir. 2005);

see, e.g., United States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008)

(concluding that the court’s earlier determination that possession of a sawed-off shotgun was a crime of violence under the

(continued...)

(c) Because the victim does not understand the nature

of the thing to which the victim consents, either by

reason of ignorance or mistake of fact or of law other

than criminal law or by reason of youth or defective

mental condition, whether permanent or temporary.

Wis. Stat. § 939.22(48). Because false imprisonment may

involve consent procured through trickery—e.g., pretending to act under legal authority, § 939.22(48)(b), or otherwise deceiving the victim so that consent is given pursuant

to a mistake of fact, § 939.22(48)(c)—Billups argues that,

like the Indiana criminal confinement offense, the Wisconsin offense does not categorically present a serious

potential risk of physical injury to the victim.

The government disagrees, and instead directs our

attention to our earlier decision regarding Illinois’s unlawful restraint offense in United States v. Wallace, 326 F.3d

881 (7th Cir. 2003). There we held, based on statutory

language identical to that found in the residual clause of

§ 4B1.2(a)—“otherwise involves conduct that presents a

serious potential risk of physical injury to another”—that

Illinois’s unlawful restraint offense constitutes a “violent

felony” for purposes of the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e).1 Wallace, 326 F.3d at 887. The
No. 07-2037 9

1 (...continued)

Sentencing Guidelines compelled the same conclusion under

the ACCA), petition for cert. filed, (U.S. Mar. 31, 2008) (No. 07-

10234).

Illinois Criminal Code defines unlawful restraint as the

knowing detention of another without legal authority,

but does not specify whether violence must be used to

effect the detention. See id. at 886 (quoting 720 Ill. Comp.

Stat. 5/10-3 (2003)). We rejected the defendant’s argument that, because unlawful restraint might be accomplished through nonviolent means, the offense does not

present a serious potential risk of injury to the victim.

We explained that, because the statute focuses on the

potential for physical injury, “the benchmark should be

the possibility of violent confrontation, not whether one

can postulate a nonconfrontational hypothetical scenario.”

Wallace, 326 F.3d at 887 (internal quotation marks and

citation omitted). Even if the victim were detained without the use or threat of violence, we reasoned, an escape

attempt might still result in a violent confrontation between assailant and victim. Therefore, we concluded

that “a situation where one person restrains another

against his or her will presents a ‘serious potential risk

of physical injury,’ whether it be in the initial restraint or

the possible resulting confrontation between assailant

and victim if the victim attempts to leave.” Id.

On Billups’s view, Wallace involved an offense that

always presents a serious potential risk of physical injury

to the victim, whereas Hagenow and Gilbert involved an

offense that might sometimes be committed without

posing such a risk. Thus, the reasoning goes, if there is any

factual scenario in which an offense can be committed

without posing a serious risk of physical harm to the
10 No. 07-2037

2 As previously noted, because the relevant language—

“otherwise involves conduct that presents a serious potential

risk of physical injury to another”—in the ACCA and the

residual clause of U.S.S.G. § 4B1.2(a) is identical, we have

treated that language as compelling identical results. See note 1,

supra.

victim, that offense is not (categorically) a crime of violence for purposes of §§ 4B1.1(a), 4B1.2(a). We disagree.

The “serious potential risk” language of the residual

clause of § 4B1.2(a) is indicative of probability, rather

than inevitability; therefore, an offense need not pose a

serious risk of harm in every conceivable factual manifestation in order to constitute a crime of violence. Cf.

United States v. Vanhook, 510 F.3d 569, 575 (6th Cir. 2007)

(“[A] determination that ‘most instances of an offense

involve a serious potential risk of injury’ is sufficient to

support the conclusion that the crime constitutes a

violent crime under the ‘otherwise clause.’ ” (quoting

United States v. Johnson, 246 F.3d 330, 333 (4th Cir. 2001))),

petition for cert. filed, (U.S. Mar. 13, 2008) (No. 07-9936).

However, this does not resolve the issue of just how

probable “physical injury to another” must be for an

offense to satisfy § 4B1.2(a). For guidance in addressing this

issue, we turn to the Supreme Court’s recent decision in

James v. United States, ___ U.S. ___, 127 S. Ct. 1586, 167

L.Ed.2d 532 (2007).

In James, the Court held that the offense of attempted

burglary, as defined by Florida law, is a “violent felony”—i.e., an offense that “otherwise involves conduct that

presents a serious potential risk of physical injury to

another”—under the ACCA.2

 Most important for present

purposes, the Court expressly rejected the petitioner’s

argument that, in order to be classified as a violent felony,
No. 07-2037 11

the attempted burglary offense must always involve a

serious potential risk of injury. The Court explained that

not “every conceivable factual offense covered by a

statute must necessarily present a serious potential risk of

injury before the offense can be deemed a violent felony.”

James, 127 S. Ct. at 1597 (noting that “potential” and “risk”

are “inherently probabilistic concepts,” and their combination “suggests . . . possibilities even more contingent

or remote than a simple ‘risk,’ much less a certainty”).

The Court noted that even a specifically enumerated

violent offense, such as extortion, does not, in every

conceivable case, present a serious potential risk of physical harm to another. Id. (For example, where “an anonymous blackmailer threatens to release embarrassing

personal information about the victim unless he is mailed

regular payments . . . the risk of physical injury to another

approaches zero,” but this “does not mean that the

offense[ ] of . . . extortion [is] categorically nonviolent.”).

Thus, the Court explained, “the proper inquiry is

whether the conduct encompassed by the elements of the

offense, in the ordinary case, presents a serious potential

risk of injury to another.” Id. (emphasis added).

We have little trouble concluding that, in the ordinary

case, Wisconsin’s false imprisonment offense poses just

such a risk. The statute can be violated in essentially

four ways. The first type of violation envisioned by the

statute is one in which the victim does not consent in fact

to his confinement or restraint. Wis. Stat. §§ 940.30,

939.22(48). In such a circumstance, the potential for violent confrontation is obvious and significant, because a

non-consenting victim is, by definition, one who resists

confinement. See United States v. Zamora, 222 F.3d 756, 764-

65 (10th Cir. 2000) (concluding that New Mexico false
12 No. 07-2037

imprisonment offense, which involves confinement or

restraint of non-consenting victim, is crime of violence

under U.S.S.G. §§ 4B1.1, 4B1.2(a)), cert. denied, 531 U.S. 1043

(2000). The second type of violation involves a victim

who consents only because the perpetrator “put the

victim in fear by the use or threat of imminent use of

physical violence on the victim, or on a person in the

victim’s presence, or on a member of the victim’s immediate family.” Wis. Stat. § 939.22(48)(a). Again, the

potential for violent confrontation is clear where the

perpetrator threatens force against the victim or his family.

Indeed, if the scope of the offense were limited to these

two factual scenarios, Billups’s argument would merit

little discussion. However, the offense also embraces

consent obtained by means other than the threat of force,

and this requires further analysis.

The third type of violation involves a perpetrator

who obtains the victim’s consent by purporting to act

under legal authority. Wis. Stat. § 939.22(48)(b). The

potential for violence diminishes somewhat where the

victim consents not based on a threat of force, but because

he erroneously believes that the perpetrator possesses

lawful authority. Nevertheless, the risk remains substantial, because the victim may discover that the perpetrator

lacks legal authority and then resist. Cf. United States v.

Kaplansky, 42 F.3d 320, 324 (6th Cir. 1994) (finding that Ohio

attempted kidnapping offense, even where accomplished

by deception, presents inherent risk of violence due to “the

ever-present possibility that the victim may figure out

what’s really going on and decide to resist”).

Finally, the victim may consent because he “does not

understand the nature of the thing to which [he] consents,

either by reason of ignorance or mistake of fact or of law
No. 07-2037 13

other than criminal law or by reason of youth or defective

mental condition, whether permanent or temporary.”

Wis. Stat. § 939.22(48)(c). This provision appears to encompass two distinct scenarios. In the first, the victim

consents to his confinement based on some mistaken

belief, perhaps resulting from deception by the perpetrator.

Again, the potential for violent confrontation remains

substantial, despite the victim’s initial consent, because the

victim may discover the ruse (or his own mistake) and

resist. See Dickson v. Ashcroft, 346 F.3d 44, 49-51 (2d Cir.

2003) (concluding that New York offense of unlawful

imprisonment of competent adult, even where accomplished by deception, involves substantial risk of violence); Kaplansky, 42 F.3d at 324 (concluding that Ohio

attempted kidnapping offense, even where accomplished by deception, involves substantial risk of violence

because victim may discover the ruse and resist); cf. United

States v. Riley, 183 F.3d 1155, 1159 (9th Cir. 1999) (rejecting

argument that, because Louisiana “simple rape” offense

could be accomplished by trickery or deception, it is not

a crime of violence).

Alternatively, in the second scenario, the victim may be

unable to give meaningful consent because, for instance,

the victim is a child. See, e.g., State v. Teynor, 414 N.W.2d 76,

82 (Wis. App. 1987). A child may be less able and less

inclined to physically resist, reducing the risk of violent

confrontation. However, the child who shies away from

confrontation might nonetheless attempt to escape confinement, potentially resulting in physical injury. See

United States v. Riva, 440 F.3d 722, 724-25 (5th Cir. 2006)

(finding that unlawful confinement of a child under the

age of 17 by means of deception creates serious potential

risk of physical injury because, for instance, the child
14 No. 07-2037

might attempt escape). We need not decide whether the

child-confinement scenario necessarily entails a “serious

potential risk of physical injury to another.” Even assuming

that it does not, our conclusion remains unaltered; that

there exists a single possible way, among many, to commit the offense without posing a serious risk of injury

to another does not mean that, in the ordinary case, the

offense does not present such a risk. See James, 127 S. Ct. at

1597; Wallace, 326 F.3d at 886-87.

Our conclusion is consistent with Hagenow and Gilbert.

Significantly, the Indiana criminal confinement statute

at issue there was neatly divisible, presenting two distinct routes to conviction: (1) confinement of another

without his consent, Ind. Code § 35-42-3-3(a)(1); or

(2) removal of another person by fraud, enticement, or

the use or threat of force from one place to another,

Ind. Code § 35-42-3-3(a)(2). As Gilbert recognized, a conviction under the first section of the statute, which

involves confinement of the victim without his consent,

might present an inherent risk of resistance, and thus

violence. Gilbert, 464 F.3d at 680-81 (noting that, with

respect to the first section of the Indiana statute, “Wallace’s

reasoning . . . could lead one to conclude that because the

restraint is involuntary, the victim might resist, and that

possibility in turn presents a risk of injury”). However,

the second section of the statute, involving removal rather

than confinement or restraint, does not necessarily pose

the same risk; “[t]ricking someone into moving voluntarily from one place to another does not present the

same danger of violent confrontation that involuntarily

restraining him or her might.” Id. at 681. In Gilbert, because

the defendant had been charged and convicted under

the second section of the statute, we could not conclude

that he had been convicted of a crime of violence. Id.
No. 07-2037 15

Wisconsin’s false imprisonment offense differs from the

Indiana criminal confinement offense in two critical

respects. First, even in its most innocuous factual incarnation, the Wisconsin offense is inherently more coercive,

because it must involve confinement or restraint and

cannot be accomplished simply by “[t]ricking someone

into moving voluntarily from one place to another.” Gilbert,

464 F.3d at 681 (emphasis added). Indeed, in this respect,

the Wisconsin offense is akin to the Illinois unlawful

restraint offense that we deemed a crime of violence in

Wallace. 326 F.3d at 886 (unlawful restraint occurs when

the perpetrator “knowingly without legal authority

detains another” (quoting 720 Ill. Comp. Stat. 5/10-3

(2003) (emphasis added))). Second, the Wisconsin

statute is not neatly divisible into two components; rather,

the “without consent” element, which is defined in a

separate statute, embodies several alternative scenarios,

only one of which might not reflect a serious risk of injury

to the victim. Thus, while it is difficult to conclude that the

Indiana offense, in the ordinary case, presents a serious

potential risk of injury to the victim, just the opposite is

true of Wisconsin’s false imprisonment offense; the lowrisk scenario appears to be the outlier. Accordingly,

we reject Billups’s contention that the Wisconsin offense

is analogous to the Indiana criminal confinement offense

at issue in Hagenow and Gilbert.

Our crime-of-violence determination is also consistent

with the Supreme Court’s recent decision in Begay v. United

States, ___ U.S. ___, 128 S. Ct. 1581, 170 L.Ed.2d 490 (2008),

which held that New Mexico’s felony offense of driving

under the influence of alcohol (DUI), a strict liability

crime, is not a violent felony within the meaning of the

ACCA. The Court accepted the lower court’s conclusion
16 No. 07-2037

that a DUI offense “presents a serious risk of physical

injury to another.” Begay, 128 S. Ct. at 1584. However, the

Court found that the DUI offense lacked the sort of

“purposeful, violent, and aggressive” conduct exemplified

by those enumerated crimes—burglary, arson, and

extortion—immediately preceding the “otherwise involves” residual clause. Id. at 1586-88; 18 U.S.C.

§ 924(e)(2)(B)(ii). Therefore, the Court concluded, the

New Mexico DUI offense was not a violent felony under

the ACCA.

Although the Begay holding is limited to the ACCA’s

definition of violent felony, the Court’s reasoning supports our conclusion here with respect to the residual

clause of U.S.S.G. § 4B1.2(a). Unlike a DUI offense,

which may be committed without criminal intent, false

imprisonment always involves purposeful behavior and

typically involves aggressive, violent behavior. In this

respect, it is similar to those enumerated crimes—burglary

of a dwelling, arson, and extortion—immediately preceding the “otherwise involves” residual clause of

§ 4B1.2(a). Moreover, the commentary to § 4B1.2 indicates

that the term “crime of violence” also includes kidnapping,

an offense involving conduct remarkably similar to that

involved in false imprisonment. U.S.S.G. § 4B1.2 cmt. n.1

(2006). Compare Wis. Stat. § 940.30 (Wisconsin false imprisonment statute), with Wis. Stat. § 940.31 (Wisconsin kidnapping statute). Thus, our crime-of-violence determination

is buttressed by the Court’s decision in Begay.

Finally, we note that even if the Wisconsin false imprisonment offense did not categorically constitute a crime of

violence, an alternative ground would still support our

decision. At sentencing, Billups effectively conceded that

his false imprisonment conviction involved violence,
No. 07-2037 17

including actual injury to another, when his counsel

represented that “Mr. Billups was found guilty of a [misdemeanor] battery charge at the same time he was found

guilty of the false imprisonment arising out of all of the

same acts” (emphasis added). See Wis. Stat. § 940.19 (misdemeanor battery involves “caus[ing] bodily harm to

another”). Under Shepard v. United States, 544 U.S. 13 (2005),

our prior-conviction crime-of-violence enquiry is “limited

to the terms of the charging document, 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.” Kindle, 453 F.3d at 442 (quoting

Shepard, 544 U.S. at 26 (emphasis added in Kindle)). We

have explained that, although “[c]ourts are not permitted to make assumptions nor conduct proceedings or

investigations” to ascertain the conduct involved in a

previous conviction, “if a defendant offers an admission

in court papers or colloquy . . . the proper enquiry into the

previous conviction no longer matters because the answer

is in the form of an admission in the record.” Kindle,

453 F.3d at 442. Thus, in Kindle, the district court was

permitted to rely upon the defendant’s plea agreement

and his representations to the court at sentencing in

concluding that his second-degree burglary conviction

constituted a “crime of violence” under U.S.S.G. § 4B1.2. Id.

Here, where Billups’s counsel represented at sentencing

that the battery and false imprisonment convictions arose

out of “all of the same acts,” it is difficult to imagine

how the former, but not the latter, offense involved violence and bodily injury to another. The district court

was not required to ignore this admission. Cf. Kindle,

453 F.3d at 441 (“[The defendant’s] argument that an

admission in court papers or in plea agreements should
18 No. 07-2037

3 Billups raises one additional argument regarding a prior

Wisconsin misdemeanor battery conviction for which he

was subject to prosecution under Wisconsin’s habitual criminality statute, fearing that the government might contend

the potential penalty enhancement would make this misdemeanor offense eligible for a crime-of-violence designation. But

the government does not present such a contention, not even

in the alternative, so we do not need to address it.

USCA-02-C-0072—7-29-08

be ignored is, as we said at oral argument, striking.”).

Therefore, Billups’s admission at sentencing provides

an alternative basis for our decision.3

III. Conclusion

To recap, we conclude that, in the ordinary case, the

Wisconsin false imprisonment offense, Wis. Stat. § 940.30,

involves purposeful, aggressive conduct that presents “a

serious potential risk of physical injury to another.”

U.S.S.G. § 4B1.2(a). Therefore, the offense is a crime of

violence, and the district court properly designated

Billups as a career offender under U.S.S.G. § 4B1.1(a) in

determining the advisory guidelines imprisonment range.

Accordingly, Billups’s sentence is AFFIRMED.