1 Wilburn’s sentence was substantially below his 210-262 months advisory guideline range. 

## In the 

# United States Court of Appeals
For the Seventh Circuit

____________

No. 05-4073

U NITED S TATES OFAMERICA , Plaintiff-Appellee

, v.

T IMOTHYD. W ILBURN , S R ., Defendant-Appellant.

____________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 04-CR-80— Rudolph T. Randa

, Chief Judge.

____________ A RGUED O CTOBER 31, 2006—D ECIDED J ANUARY 11, 2007

____________

Before P OSNER , W OOD , and E VANS , Circuit Judges

. E VANS , Circuit Judge . After a 2-day jury trial, Timothy Wilburn was found guilty of being a felon in possession of two firearms: a 9mm Cobray Mac-11 semi-automatic and a 9mm Glock, with an atta ched laser sight. He was sentenced, after a finding that he had three prior violent felony convictions, to the statutory minimum term of 15 years under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). 1 On this appeal, W ilburn challenges both his conviction and sentence.2 No. 05-4073

The issue regarding Wilburn’s conviction primarily concerns matters recently addressed by the Supreme Court in Georgia v. Randolph , ___ U.S. ___, 126 S. Ct. 1515 ( 2006). The sentencing issue concerns whether one of his earlier convictions, a ju venile adjudication for being a party to armed robbery, was properly included as one of the three prior convictions that brought him under theACCA. We begin with Wilburn’s challenge to his conviction, which centers on a clai m that his motion to suppress evidence—the two guns, of course—should have been granted.

Randolph holds that police violate the Fourth Amendment when they conduct a se arch, authorized by a person with apparent authority to consent, over the objection of a physically present potential defendant who shares the premises and declines to offer his consent. But Randolph is a rather narrow holding, and no matter how hard Wilburn wiggles—like the stepsisters trying to squeeze into Cinderella’s gla ss slipper—he can’t fit within its embrace. In March of 2004, Milwaukee Police Officer Bodo Gajevic received an anonymous tip. With the tip and other intelligence he gathered, Gajevic learned that Wilburn was living with a woman named Sophia Taylor at 5611 North 40th Street (Apartment 7) in Milwaukee. More importantly, Gajevic learned that Wilburn was a felon in possession of handguns and that he had a revoked drivers license. Armed with this information, Gajevic and other officers staked out the Taylor/Wilburn apartment. They soon got lucky: Wilburn left through the front door, walked to the rear of the apartment complex, entered a car, and drove off. After Wilburn drove a short way, just around the block, and pulled up to the front of the apartment (he was hoping to pick up Taylor so they could go and do their laundry), he was stopped by the police and arrested for driving with a revoked drivers license. A search ofNo. 05-4073 3

Wilburn’s person and the car he was driving came up dry for guns. Wilburn was thenhandcuffed and placed in the back seat of a squad car, some 40 feet or so from the entrance to the apartment building.

A driving-with-a-revoked-license charge was not what Gajevic and the other office rs had in mind when they staked out Wilburn’s apartment. They had bigger fish tofry—the firearms they were led to believe that he possessed. So, with Wilburn in th e squad car with one of the officers, Gajevic and others walked up to the apartment and encountered Taylor (with several children), who was apparently on her way out. Gajevic informed Taylor of the nature of the investigation and told her that, “f or right now,” Wilburn was under arrest for driving af ter revocation. During this encounter, Taylor related that she had been living in the apartment for the past 6 years and that Wilburn, whom she had been “dating,” had b een staying with her for the past 3 months. Gajevic asked for and received consent from Taylor to search the re sidence. In response to some hesitation on Taylor’s part, Gajevic told her that he was searching only for guns and that he would concentrate his search on places where Wilburn had his belongings. The officers then entered th e apartment with Taylor and proceeded to search the bedroom and a closet shared by Taylor and Wilburn. In their search of the closet, the officers found a black, unmarked duffel bag that was unlocked but zippered shut. In it they found the Cobray semi-automatic. No other weapons were found.

While the search was takingplace, Detective Michael Simonis waited outside in the squad car with Wilburn. Simonis did not question Wilburn about guns or mention anything at all about the gun investigation. Instead, he focused on obtaining rout ine background information from Wilburn.4 No. 05-4073

After hearing that the Cobray was discovered, Wilburn expressed concern because, among other things, he was on parole. He said he wanted to cooperate. Later, at the police station, he told officers where the second gun, the Glock, could be found.

In trying to wedge himself under Randolph , Wilburn says the police, knowing he would object to the search, deliberately kept him in the squad car away from Taylor while she was giving her cons ent. But even if the police were clairvoyant—Randolph was decided 2 years and 15 days afterthe search of the Taylor/Wilburn apartment— the police here were not doing an end run around its holding. Wilburn was validly arrested (even he admits this inconvenient truth) and he was lawfully kept in a place—the back seat of a squad car—where people under arrest are usually held. Given these facts, the police were not obligated to bring Wilburn to Taylor so he could be a party to the discussion regarding consent.
The majority opinion in Randolph distinguished United States v. Matlock , 415 U.S. 164 (1974), which recognized the permissibility of a sea rch made with the consent of one co-occupant in the ot her’s absence. The “absent” defendant in Matlock was arrested in the front yard of a house and detained in a squad car nearby while officers, at the doorway of the house, obta ined consent to search from a woman with whom he lived.

Addressing the significance of Matlock—and also Illinois v. Rodriguez , 497 U.S. 177 ( 1990), a case involving a defendant who was asleep wh en police obtained consent from a co-tenant—the Randolph Court observed: Although the Matlock defendant was not present with the opportunity to object, he was in a squad car not far away; the Rodriguezdefendant was actually asleep in the apartment, and the police might have roused him with a knock on the door be fore they entered with onlyNo. 05-4073 5

the consent of an apparent co -tenant. If those cases are not to be undercut by today’s holding, we have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out

.

This is the line we draw, an d we think the formalism is justified. So long as th ere is no evidence that the police have removed the potentially objecting tenant from the entrance for the sa ke of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, on e recognizing the co-tenant’s permission when ther e is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses it.
Randolph , 126 S. Ct. At 1527-1528 (emphasis added). The Court went on to defend this admittedly “formalistic” rule,noting that requiring police to search out potential objectors would limit their “capacity . . . to respond to ostensibly legitimate opportunities in th e field” and turn every thirdparty consent case into “a test about the adequacy of the police’s efforts to consult with a potential objector.”

The facts in this case est ablish that Wilburn was not “physically present” when Ta ylor consented, and the police did not deliberately remove him from the area to avoid hearing him invoke an objection to the search. For these reasons, Randolph can offer Wilburn no comfort.

Wilburn raises one more searchissue, but it is frivolous under these facts: Taylor had actual (and at the very least apparent) authority to co nsent to the search, and her consent included looking into the unlocked and unmarked duffel bag found in the closet of the shared bedroom.6 No. 05-4073

Wilburn attacks his sentence on two grounds, the firstapparently to preserve an argument for future consideration in the event the Supre me Court changes the law. As to this argument, the “prior conviction” exception to Apprendi v. New Jersey , 530 U.S. 466 (2000), despite some lingering doubts most recently expressed in Shepard v. United States , ___ U.S. ___, 125 S. Ct. 1254 (2005), remains the law, and Wilburn’s claim that the jury should have considered and resolved issues about his criminal record must be rejected. As the Court explained in Apprendi , there is a “vast difference” between “accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt,” and allowing a judge rather than a jury to fi nd in the first instance facts that “ ‘relate to the commission of the offense’ itself.” 530 U.S. at 496 (quoting Almendarez-Torres v. United States

,523 U.S. 224, 244 (1998)). Indeed, because a prior conviction “must itself have been established through procedures satisfying the fair no tice, reasonable doubt, and jury trial guarantees,” it is “unlike virtually any other consideration used to enlarge the possible penalty for an offense.” Jones v. United States , 526 U.S. 227, 249 (1999).
In his second sentencing challenge, Wilburn, although recognizing the obstacles against him, argues that hisjuvenile adjudication is not countable as one of the predicate “convictions” for triggering the ACCA. Congress, however, has specifically authorized the inclusion of juvenile adjudications for ACCA purposes, 18 U.S.C. § 924(e)(2)(C), and it is not our role to rewrite the law. It is, of course, our role to decide whether Apprendi and Almendarez-Torres call into question the constitutionality of the ACCA rule. Compare United States v. Burge , 407 F.3d 1183, 1190 (11th Cir. 2005) (holding that juvenile convictions, including those where there was no right toNo. 05-4073 7

a jury, may be considered for ACCA purposes); United States v. Jones , 332 F.3d 688, 694-96 (3d Cir. 2003) (same); United States v. Smalley , 294 F.3d 1030, 1031-32 (8th Cir. 2002) (same); with United States v. Tighe , 266 F.3d 1187, 1192-95 (9th Cir. 2001) (holding that the “prior conviction” exception does not include nonjury juvenile adjudications). We have not yet taken a position on this debate, nor do we need to do so here. At the time, Wisconsin law afforded Wilburn a right to a jury trial in the juvenile proceeding, and thus his conviction could be used even under the Ninth Circuit’s rule. Given that Wilburn does not argue that his juvenile offense—party to the crime of armed robbery—was “non-violent,” wemust reject his claim that “public policy” makes it offlimits to a sentencing judge counting prior criminal acts under the ACCA. For these reasons, the judgment of the district court is A FFIRMED

.
A true Copy:

Teste:

________________________________ Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-11-07