United States of America v. Gerardo Villarreal -Tamayo

1 We shorten his name for easy reading.
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3514
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
G ERARDO V ILLARREAL -T AMAYO ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 266—Rudolph T. Randa, Chief Judge.
____________
A RGUED S EPTEMBER 12, 2006—D ECIDED O CTOBER 30, 2006
____________
Before C OFFEY , R OVNER , and E VANS , Circuit Judges.
E VANS , Circuit Judge. Gerardo Villarreal-Tamayo
pleaded guilty to being in the United States without
permission after he was deported. See 8 U.S.C. § 1326(a).
He was sentenced to a term of 48 months because his
deportation followed a conviction for an aggravated felony.
On appeal he argues that his guilty plea should be over-
turned because during the plea colloquy he did not admit,
nor did the district court find, that he was previously
convicted of an aggravated felony. Because Tamayo 1 didn’t
first ask the district court to allow him to walk away from

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2 No. 05-3514
2 An interpreter was also present to assist Tamayo at the
hearing.
his plea, his burden here is a steep one.
Tamayo, a Mexican citizen who was deported from the
United States in 2000, was arrested in 2004 in Milwaukee,
Wisconsin, for receiving stolen property and obstructing
a police officer. Upon confirming his identity, the gov-
ernment charged him under § 1326(a); included in the
indictment was an allegation that in 1996, and before he
was deported, he was convicted of possession with intent to
distribute methamphetamine, an aggravated felony.
During the course of the proceedings, Tamayo, while
represented by counsel, appeared before the district court
(Chief Judge Rudolph T. Randa) and expressed a desire
to forego a written plea agreement and “plead guilty on an
open plea 2 .” The judge advised Tamayo of the rights he was
waiving by pleading guilty and informed him of the ele-
ments of the offense the government had to prove if the case
went to trial, namely: (1) that he is not a citizen of
the United States; (2) that he was deported from the United
States; (3) that he was found in the United States despite
his deportation; and (4) that he did not have the consent of
the Attorney General to reenter the United States. When
asked if he understood that the government would not have
to prove these elements if he pleaded guilty, Tamayo replied
that he “would like to do an open plea,” and went on to
state:
With all respect, your Honorable Judge, I know that
I am in front of a court of justice and I am in front of
you to do an open plea. I am pleading guilty to having
entered in the United States illegally, without the
consent of the Government. And that’s it. . . . I know
that you would be sentencing me. That’s what the
Constitution states. And I trust the justice of this

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No. 05-3514 3
country.
In an offer of proof, the attorney for the government said, if
the case were to go to trial, the evidence would prove
that: (1) in 1996, Tamayo was convicted of “the felony
offense of possession with intent to distribute more than
1 kilogram of methamphetamine”; (2) in 2000, he was
ordered removed from the United States and deported to
Mexico; (3) in 2004, he was arrested in Milwaukee, Wiscon-
sin; and (4) his immigration file contained no evidence of a
consent to reenter from the Attorney General. Judge Randa
concluded, quite naturally, that if those facts were shown at
trial, the government would successfully establish “the four
parts or elements of this offense that the Court discussed
with the Defendant earlier.” The judge then asked Tamayo
if he still wished to “enter a plea of guilty to this charge in
the Indictment.” Tamayo responded: “For having entered
into this county illegally, I do declare myself guilty.” The
judge accepted Tamayo’s plea, saying that he was “fully
satisfied” that it was “knowing, voluntary, intelligent, and
free.”
Prior to sentencing the probation officer submitted a
report which relied, in part, on Tamayo’s 1996 felony drug
conviction to determine that his total offense level was
21 and that his Criminal History Category was III. These
calculations resulted in a recommended imprisonment
range of 46 to 57 months. In response, Tamayo filed a pro se
objection, arguing that the reference to his 1996 metham-
phetamine conviction was unconstitutional because it “was
neither charged in the indictment, proven to the jury, or
admitted by the Defendant.” At the sentencing hearing,
however, Tamayo’s attorney neither objected to the inclu-
sion of the methamphetamine conviction, nor moved to
withdraw the guilty plea; the attorney instead stated that
“there were no factual errors [in the presentence investiga-
tion report] but merely disagreement with the guidelines
calculation.” Judge Randa, accordingly, overruled Tamayo’s

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4 No. 05-3514
objection and imposed a sentence of 48 months, just a tad
above the low-end of the advisory range.
On appeal Tamayo argues that his guilty plea must be set
aside because: (1) it was involuntary; and (2) the district
court did not find that it was supported by a factual basis.
Namely, he asserts that he pleaded guilty “only to illegally
entering the country” and, in so doing, did not admit that he
had a previous conviction for an aggravated felony. He
similarly argues that Judge Randa did not determine if
there was a factual basis for his guilty plea because he did
not explicitly find that he had a prior conviction for an
aggravated felony.
When a defendant challenges his guilty plea on appeal
without first having moved to withdraw it in the district
court, we review the record only for plain error. See United
States v. Vonn, 535 U.S. 55, 59 (2002); United States v.
Schuh, 289 F.3d 968, 974 (7th Cir. 2002); see also Fed. R.
Crim. P. 52(b) (“A plain error that affects substantial rights
may be considered even though it was not brought to the
court’s attention.”). The government suggests, however, that
in United States v. Driver, 242 F.3d 767, 770-71 (7th Cir.
2001), we stated that a defendant waives any appellate
challenge to his guilty plea when he fails to move to with-
draw it in the district court. This is incorrect; Vonn has
clearly spoken on that score. That is not to say the govern-
ment’s reading of Driver is unappealing. As a practical
matter, it is incredibly difficult for a defendant to prove that
a district court plainly erred when accepting a guilty plea.
See, e.g., United States v. Parker, 368 F.3d 963, 967-68 (7th
Cir. 2004); United States v. Blalock, 321 F.3d 686, 688-89
(7th Cir. 2003); United States v. Martinez, 289 F.3d 1023,
1029 (7th Cir. 2002); United States v. Jeffries, 265 F.3d 556,
557-58 (7th Cir. 2001); United States v. Gilliam, 255 F.3d
428, 433-34 (7th Cir. 2001). It would be far better if defen-
dants first moved to withdraw their guilty pleas in the
district court before challenging them on appeal. Where a

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No. 05-3514 5
defendant claims he did not understand the crime to which
he pleaded guilty—as Tamayo does here—the district court
would then have the opportunity to determine whether the
defendant did, in fact, understand. See Fed. R. Crim. P.
11(d)(2)(B); United States v. Jones, 381 F.3d 615, 618-19
(7th Cir. 2004) (affirming district court’s denial of motion to
withdraw guilty plea premised on a claim that defendant
did not understand guilty plea). But we are bound by Vonn,
and because Tamayo did not move to withdraw his guilty
plea in the district court, our review is, as we said, only for
plain error. And establishing plain error, of course, is
excruciatingly difficult.
Getting back to this case, Tamayo argues that Judge
Randa did not inform him of the nature of the charge, see
Fed. R. Crim. P. 11(b)(1)(G), because he did not discuss
what Tamayo characterizes as a “specific element” of the
offense—that he was previously convicted of an ag-
gravated felony. But Tamayo misunderstands § 1326. He
assumes that subsection (b)(2) defines an “element” of the
offense when the government seeks an enhanced penalty.
This contention has been squarely rejected.
As relevant here, § 1326(a) makes it a crime punishable
by a maximum of two years for any alien, previously
removed, to reenter or be present in the United States
without the express consent of the Attorney General. See 8
U.S.C. §§ 1326(a)(1), (2). Section 1326(b)(2) increases the
penalty to a maximum of 20 years if the defendant was
removed subsequent to a conviction for an aggravated
felony. See id. § 1326(b)(2). In United States v. Almendarez-
Torres, 523 U.S. 233 (1998), the Supreme Court held
that: (1) section 1326(b)(2) does not define a separate crime,
but rather is a penalty provision authorizing an enhanced
penalty for violations of § 1326(a), id. at 226-27; see also
United States v. Williams, 410 F.3d 397, 401-02 (7th Cir.
2005) (discussing Almendarez-Torres); and (2) the Constitu-
tion does not require an enhancement based on recidivism

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6 No. 05-3514
to be treated as an element of the underlying offense,
Almendarez-Torres, 523 U.S. at 244-47; see also United
States v. Stevens, 453 F.3d 963, 967 (7th Cir. 2006) (“ ‘[T]he
district court does not violate a defendant’s Sixth Amend-
ment right to a jury trial by making findings as to his
criminal record that expose him to greater criminal penal-
ties.’ ” (quoting Williams, 410 F.3d at 402)); United States v.
Lechuga-Ponce, 407 F.3d 895, 896-97 (7th Cir. 2005)
(relying on Almendarez-Torres to state “the fact of a
prior conviction need not be proven beyond a reasonable
doubt”).
Although it would have been a good thing to do, the judge
was under no obligation to inform Tamayo that his 1996
methamphetamine conviction was bound to be an important
sentencing factor. Along the same line, the judge was not
required, during the plea colloquy, to make an explicit
finding that Tamayo previously was convicted of an aggra-
vated felony. See Williams, 410 F.3d at 401-02 (“The
existence of a prior conviction for an aggravated felony was
‘as typical a sentencing factor as one might
imagine,’ . . . . As such, that factor could be determined
by the judge rather than a jury.” (quoting Almendarez-
Torres, 523 U.S. at 230, 243-44)). If the law in this regard
is to be changed, it will be the Supreme Court, not us, that
will rewrite the rule. See, e.g., Stevens, 453 F.3d at 967;
United States v. Sperberg, 432 F.3d 706, 707 (7th Cir. 2005);
Williams, 410 F.3d at 402.
For these reasons, the judgment of the district court is
A FFIRMED .

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No. 05-3514 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-30-06

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