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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TIMOTHY D. WILBURN, SR.,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 04-CR-80—Rudolph T. Randa, Chief Judge.

____________

ARGUED OCTOBER 31, 2006—DECIDED JANUARY 11, 2007

____________

Before POSNER, WOOD, and EVANS, Circuit Judges.

EVANS, 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 attached 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, Wilburn 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 juvenile adjudication for being

a party to armed robbery, was properly included as one of

the three prior convictions that brought him under the

ACCA. We begin with Wilburn’s challenge to his conviction, which centers on a claim 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 search, 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 glass 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 of
No. 05-4073 3

Wilburn’s person and the car he was driving came up dry

for guns. Wilburn was then handcuffed 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 officers had in mind when they

staked out Wilburn’s apartment. They had bigger fish to

fry—the firearms they were led to believe that he possessed. So, with Wilburn in the 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, “for right now,” Wilburn was

under arrest for driving after 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 been staying with her for the

past 3 months. Gajevic asked for and received consent

from Taylor to search the residence. 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 the 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 taking place, 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 routine 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 consent. But even if the police

were clairvoyant—Randolph was decided 2 years and 15

days after the 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 search made with the consent of

one co-occupant in the other’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, obtained 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 when 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 Rodriguez defendant was actually asleep in

the apartment, and the police might have roused him

with a knock on the door before they entered with only
No. 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, and we think the formalism

is justified. So long as there is no evidence that the

police have removed the potentially objecting tenant

from the entrance for the sake of avoiding a possible

objection, there is practical value in the simple clarity

of complementary rules, one recognizing the co-tenant’s permission when there 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 the 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 establish that Wilburn was not

“physically present” when Taylor 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 search issue, but it is frivolous

under these facts: Taylor had actual (and at the very

least apparent) authority to consent 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 first

apparently to preserve an argument for future consideration in the event the Supreme 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 find 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 notice, 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 his

juvenile 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 to
No. 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,” we

must 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

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-11-07