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.


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

(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 convic-
tion, 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 Amend-
ment when they conduct a search, authorized by a per-
son 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 with-
in its embrace.
   In March of 2004, Milwaukee Police Officer Bodo Gajevic
received an anonymous tip. With the tip and other intelli-
gence he gathered, Gajevic learned that Wilburn was liv-
ing with a woman named Sophia Taylor at 5611 North
40th Street (Apartment 7) in Milwaukee. More impor-
tantly, 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 pos-
sessed. 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 investiga-
tion 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, 

(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, 

(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-ten-
    ant’s permission when there is no fellow occupant on
    hand, the other according dispositive weight to the
    fellow occupant’s contrary indication when he ex-
    presses 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 objec-
tors would limit their “capacity . . . to respond to ostensibly
legitimate opportunities in the field” and turn every third-
party 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 consider-
ation in the event the Supreme Court changes the law.
As to this argument, the “prior conviction” exception to
Apprendi v. New Jersey, 

(2000), despite some
lingering doubts most recently expressed in Shepard v.
United States, ___ U.S. ___, 

(2005), re-
mains 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’ 

(quoting Almendarez-Torres v. United States,

, 244 (1998)). Indeed, because a prior con-
viction “must itself have been established through proce-
dures 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, 

, 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 predi-
cate “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, 

, 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, 

, 694-96 (3d Cir. 2003) (same);
United States v. Smalley, 

, 1031-32 (8th
Cir. 2002) (same); with United States v. Tighe, 

, 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, Wiscon-
sin 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 off-
limits 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