## In the 

# United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2037

U NITED S TATES OF A MERICA , Plaintiff-Appellee

, v.

B RIAN K. B ILLUPS , Defendant-Appellant.

____________ Appeal from the United States District Court for the Western District of Wisconsin. No. 06 CR 213— Barbara B. Crabb

, Chief Judge.

____________ A RGUED A PRIL 3, 2008—D ECIDED J ULY 29, 2008

____________

Before F LAUM , M ANION , and T INDER, Circuit Judges.

T INDER, 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 fals e imprisonment. The career offender designation increa sed Billups’s total offense level and resulted in an ad visory 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 Ma dison, 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, on e for delivery of a controlled substance and one for false im prisonment. Billups’s career offender status increased hi s 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 sent enced Billups to 151 months of imprisonment, three years of supervised release, and a $100 special assessment. Billups now appeals his sent ence, 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 atNo. 07-2037 3

the time he committed the offense, Billups was properly classified as a career offender if he had “at least two priorfelony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). Billups concedes that his prior felo ny conviction for delivery of a controlled substance qua lifies 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 isthe 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 an other”; or (2) “is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduc t 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 th e 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 nolawful 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 fa lse 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 exto rtion, and it do es 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, iswhether 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 pres ent such a risk. At sentencing, Billups pointed out that the offense does not have a statutory element involving the use or threat of force. Inaddition, 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. Theperson [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 rest raint of the person that’s imposing the restraint, th at 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 whenthe 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 reso lve 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. 2 006).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 imprisonme nt 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 hi s 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 ifhe 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 federalclaim is properly presented, a party can make any argument in support of that clai m; parties are not limited to the precise arguments they made below.”)). Therefore, we review de novo both the district court’s careeroffender 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 analog izes 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, fo rce, or threat of force, fromNo. 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 riskof physical injury’ to the other,” the Indiana offense is not, on its face, a crime of violence. 423 F.3d at 644. We el aborated on this holding
in Gilbert , explaining that because the Indiana criminalconfinement 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 seriousphysical injury to another even when the crime is committed without resort to fo rce.” 464 F.3d at 682. Thus, we have determined that Indiana’s criminal confinementoffense is not necessarily a crime of violence for purposes of § 4B1.2(a). Billups points out that Wi sconsin’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 “witho ut consent” embraces both an absence of consent in fact andconsent 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; or8 No. 07-2037

1 Because the ACCA and the residu al clause of § 4B1.2(a) useidentical 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 th rough 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 cate gorically present a serious potential risk of physicalinjury to the victim. The government disagrees, and instead directs ourattention 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 phys ical 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. TheNo. 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 riskof 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 nonconfrontati onal hypothetical scenario.” Wallace , 326 F.3d at 887 (interna l quotation marks andcitation omitted). Even if the victim were detained without the use or threat of violence, we reasoned, an escapeattempt 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, Wallaceinvolved 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 re asoning goes, if there is any factual scenario in which an offense can be committed without posing a serious risk of physical harm to the10 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 (c ategorically) a crime of violence for purposes of §§ 4B1.1(a), 4B 1.2(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 everyconceivable 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 ‘mos t instances of an offense involve a serious potential riskof 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 reso lve 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 Flor ida 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. 2Most important for present purposes, the Court expressl y 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 th at “potential” and “risk” are “inherently probabilisti c 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 exto rtion, does not, in everyconceivable 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 encompasse d 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 vi ctim 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 obviou s 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 false12 No. 07-2037

imprisonment offense, whic h 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 thevictim’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 agai nst the victim or his family. Indeed, if the scope of the o ffense were limited to these two factual scenarios, Billu ps’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 violatio n 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 possesseslawful 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 lawNo. 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 confinemen t 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 unlawfulimprisonment of competent adult, even where accomplished by deception, involv es substantial risk of violence); Kaplansky , 42 F.3d at 324 (concluding that Ohioattempted 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 tricke ry 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 fromconfrontation might nonetheless attempt to escape confinement, potentially result ing 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 child14 No. 07-2037

might attempt escape). We need not decide whether the child-confinement scenario necessarily entails a “serious potential risk of physical inju ry to another.” Even assuming that it does not, our conclusion remains unaltered; that there exists a single possibl e 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 cr iminal confinement statuteat 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 restrain t, does not necessarily posethe same risk; “[t]ricking someone into moving voluntarily from one place to an other 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 imprisonmentoffense 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 confinementor restraint and cannot be accomplished simply by “[t]ricking someone
into movingvoluntarily 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 I ll. 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 im prisonment offense; the lowrisk scenario appears to be the outlier. Accordingly, we reject Billups’s contentionthat the Wisconsin offense is analogous to the Indiana criminal confinement offense
at issue in Hagenow and Gilbert

. Our crime-of-violence determ ination 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 alcoho l (DUI), a strict liability crime, is not a violent felonywithin the meaning of the ACCA. The Court accepted the lower court’s conclusion16 No. 07-2037

that a DUI offense “presents a serious risk of physical injury to another.” Begay, 128 S. Ct. at 15 84. However, the Court found that the DUI offense lacked the sort of “purposeful, violent, and a ggressive” conduct exemplified by those enumerated crim es—burglary, arson, andextortion—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 th ose 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 crim e-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 gr ound would still support our decision. At sentencing, Billu ps effectively conceded that his false imprisonment conviction involved violence,No. 07-2037 17

including actual injury to another, when his counselrepresented 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). S ee 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-o f-violence enquiry is “limited to the terms of the charging document, the terms of a plea agreement or transcriptof 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 )). Wehave 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 de fendant offers an admission in court papers or colloquy . . . the proper enquiry into the previous convictionno 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 imaginehow 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 should18 No. 07-2037

3 Billups raises one additional argument regarding a prior Wisconsin misdemeanor battery conviction for which hewas subject to prosecution under Wisconsin’s habitual criminality statute, fearing that the government might contendthe 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 atoral 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, aggressi ve 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. § 4B 1.1(a) in determining the advisory guid elines imprisonment range. Accordingly, Billups’s sentence is A FFIRMED

.