In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-4046

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SERGIO MARGUERITO ZACAHUA,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 13-cr-576-3 — Robert M. Dow, Jr., Judge.

____________________

ARGUED SEPTEMBER 23, 2019 — DECIDED OCTOBER 8, 2019

____________________

Before EASTERBROOK, HAMILTON, and ST. EVE, Circuit 

Judges.

ST. EVE, Circuit Judge. Defendant-Appellant Sergio Zacahua requests that we vacate his guilty plea because the district 

court failed to inform him of the potential immigration consequences of his plea, as Federal Rule of Criminal Procedure

11(b)(1)(O) requires. The government concedes, and we agree, 

that the district court failed to give Zacahua this admonishment. But because Zacahua does not demonstrate a 
2 No. 16-4046

reasonable probability that, had the district court provided 

this warning, he would not have pleaded guilty, we affirm. 

I

Zacahua, a citizen of Mexico, has lived as an unauthorized

alien in the United States for over 20 years. Although he was 

employed as a scrap worker and in the kitchen at Hilton hotels, Zacahua also transported heroin for a drug trafficking organization. In 2013, Zacahua and five codefendants were indicted in the United States District Court for the Northern 

District of Illinois for conspiracy to distribute heroin under 21 

U.S.C. §§ 841(a)(1), 846.

On July 23, 2013, during Zacahua’s bond hearing, the government invoked Zacahua’s immigration status to support 

their argument that he was a serious flight risk. The government explained:

Importantly, he is admittedly an undocumented alien and a citizen of Mexico. This increases the risk of flight for this defendant because he has significantly less ties here and 

strong ties to Mexico. Additionally, now that 

he’s arrested, even if he were not convicted, he 

faces the likelihood of removal from the United 

States to Mexico. And thus, he must surely be 

questioning why he would stay in the United 

States to face a potentially long prison term only 

to end up in Mexico at the end of the day. 

In ordering Zacahua’s detention, the court highlighted his 

risk of deportation: “I give some credence to the government’s 

argument that Mr. Zacahua really doesn’t have any incentive 

to stick around if he’s going to be deported anyway.”
No. 16-4046 3

On March 22, 2016, the district court held a change of plea 

hearing pursuant to Federal Rule of Criminal Procedure 11. 

The district court advised Zacahua that he faced a mandatory 

minimum sentence of 120 months’ imprisonment. The district 

court also informed Zacahua of the many rights he would 

give up by pleading guilty and some of the potential consequences of a felony conviction. But the district court never 

told Zacahua that he may be removed from the United States 

and denied admission in the future as a consequence of his 

guilty plea, as Rule 11(b)(1)(O) requires, and neither the prosecutor nor defense counsel prompted the court to make this 

admonishment. After confirming Zacahua was competent to 

enter a plea and that his plea was knowing and voluntary, the 

district court accepted Zacahua’s guilty plea.

On April 8, 2016, just 17 days after Zacahua pleaded

guilty, a Probation Officer interviewed Zacahua while preparing his presentence investigation report. During this interview, Zacahua acknowledged his unauthorized status and 

that he faced deportation. He told Probation that, when he returned to Mexico, he intended to apply to work at one of the 

Hilton hotels in Cabo San Lucas because of his extensive hospitality experience, and that he wished to return quickly to 

Mexico to care for his ailing parents. 

Zacahua’s sentencing hearing occurred on November 21, 

2016. At the hearing, the district court acknowledged that 

Zacahua was “likely to be eligible for deportation.” The court 

discussed Mr. Zacahua’s employment prospects upon his return to Mexico: “I think if you are bilingual there are a lot of 

opportunities in Mexico, actually, to be a successful person in, 

really, any field where being even partially bilingual is helpful. ... [I]t may make it easier for [you] to find and keep good 
4 No. 16-4046

employment in Mexico.” Later, the court stated, “I understand that you’re accepting the responsibility for what you’ve 

done here and you would like this to get over with as fast as 

possible so you can return to Mexico.” While discussing the 

§ 3553(a) sentencing factors, the court explained, “In terms of 

deterrence, I think the deportation—the likely deportation—

will make it unlikely that Mr. Zacahua would have the opportunity to commit further crimes here.” As a condition of supervised release, the court imposed a requirement that Zacahua surrender to immigration authorities for a determination 

of deportability after his release. 

Zacahua also embraced returning to Mexico as he addressed the court:

And if I were to be deported the quickest possible, I would go to Mexico and I will not come 

back. I have now lost everything that I had here. 

My family. So I am now going back to Mexico 

to my parents. My dad just passed away. I did 

not see him. Now, I’ve got my mom who is left 

and to take care of her.

He never raised any concern about the district court’s Rule 11 

violation or his potential deportation. The district court sentenced him to the mandatory minimum sentence of 120 

months. 

Zacahua now wishes to withdraw his guilty plea. He 

therefore appeals his conviction. 

II

Because Zacahua let a Rule 11 error pass without objection 

in the trial court, he has forfeited this objection and must establish “plain error” to obtain relief on appeal. United States 
No. 16-4046 5

v. Vonn, 535 U.S. 55, 59 (2002). Under plain error review, a defendant “will prevail if he can demonstrate that: (1) there was 

an error; (2) the error is clear or obvious, rather than subject 

to reasonable dispute; (3) the error affected [the defendant’s] 

substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” 

United States v. Navarro, 817 F.3d 494, 499 (7th Cir. 2015) (citing 

Puckett v. United States, 566 U.S. 129, 135 (2009)).

To obtain relief for an unpreserved Rule 11 error, a defendant “must do more than show that the Rule was technically 

violated. He must show that his guilty plea was involuntary 

and that he would not have entered it on the basis of the record as a whole.” United States v. Sura, 511 F.3d 654, 660 (7th 

Cir. 2007). The error must have affected the defendant’s “substantial rights,” meaning that the “defendant is obliged to 

show a reasonable probability that, but for the error, he would 

not have entered the plea.” United States v. Dominguez Benitez, 

542 U.S. 74, 76 (2004). 

Zacahua argues that we should vacate his conviction because his guilty plea was not knowing and voluntary due to 

his lack of notice regarding the immigration consequences of 

his plea. Zacahua’s argument that his plea was uninformed is 

entangled with his argument that the district court made a 

Rule 11 error. 

Federal Rule of Criminal Procedure Rule 11(b)(1)(O) specifically requires that, before a court accepts a guilty plea, a 

district court must inform the defendant that “if convicted, a 

defendant who is not a United States citizen may be removed 

from the United States, denied citizenship, and denied admission to the United States in the future.” This provision was 

added to the rules in 2013, following the Supreme Court’s 
6 No. 16-4046

decision in Padilla v. Kentucky, 559 U.S. 356 (2010). FED. R.

CRIM. P. 11(b)(1)(O); Committee note to 2013 amendments. In 

Padilla, the Supreme Court recognized that deportation is always “a particularly severe penalty.” Id. at 365 (internal citation omitted). “[A]s a matter of federal law, deportation is an 

integral part—indeed, sometimes the most important part—

of the penalty that may be imposed on noncitizen defendants 

who plead guilty.” Id. at 364. “[P]reserving the client’s right 

to remain in the United States may be more important to the 

client than any potential jail sentence.” Id. at 368 (quoting 

I.N.S. v. St. Cyr, 533 U.S. 289, 322 (2001)). Courts, however, 

“should not upset a plea solely because of post hoc assertions 

from a defendant about how he would have pleaded ... . 

Judges should instead look to contemporaneous evidence to 

substantiate a defendant’s expressed preferences.” Lee v. 

United States, 137 S. Ct. 1958, 1967 (2017). 

The government concedes that the district court plainly

failed to comply with Rule 11(b)(1)(O), and that Zacahua has 

therefore met the first two prongs of plain error review. But 

Zacahua cannot establish the third and fourth prongs of plain 

error review because (1) he knew he faced a high likelihood 

of deportation and (2) he cannot produce any “contemporaneous evidence” that substantiates his post-sentencing desire 

to withdraw his plea. First, at Zacahua’s bond hearing, both 

the government and the court noted his immigration status 

and likely deportation. Thus, Zacahua had notice of his high 

risk of deportation prior to his change of plea hearing. Second, 

Zacahua’s statements during his interview with his Probation 

Officer—only seventeen days after entering his guilty plea—

and at his sentencing hearing demonstrated not only that he 

was aware he faced deportation, but that he accepted his 

eventual return to Mexico. 
No. 16-4046 7

True, the evidence in the record demonstrates only that 

Zacahua was on notice that he likely faced deportation as a 

result of his immigration status. No evidence indicates that 

Zacahua was aware that his conviction would elevate his risk 

of deportation prior to entering his plea. Zacahua, however, 

has failed to present any evidence that had he known of the 

immigration consequences of his conviction, he would have 

been reasonably likely to proceed to trial. Indeed, on this record, his protests fall into the category of “post hoc assertions 

from a defendant about how he would have pleaded” that the 

Supreme Court discouraged in Lee. Lee, 137 S. Ct. at 1967.

The Sixth Circuit case that Zacahua cites in his defense—

United States v. Ataya, 884 F.3d 318, 326 (6th Cir. 2018)—is inapplicable to this case. In Ataya, the district court judge similarly failed to inform a defendant during the plea colloquy 

that he would face immigration consequences—in his case, 

denaturalization—as a result of his conviction. Ataya, 884 F.3d 

at 324–25. The record in Ataya, however, contained sufficient 

“contemporaneous evidence in the record demonstrating a 

reasonable probability that Ataya in particular would not 

have pleaded guilty if he had notice of the potential adverse 

immigration consequences.” Id. at 325. At sentencing, Ataya 

“articulated a strong, and very reasonable, aversion to his former homeland of Syria.” Id. He explained how the ongoing 

civil war had displaced his relatives. Id. He also discussed 

how he is the “father of three minor children who reside in 

the United States, is an active parent, and is the family’s 

breadwinner.” Id. The contemporaneous concerns Ataya 

voiced about returning to Syria stand in stark contrast with

Zacahua’s desire for swift release from prison so he could return to Mexico to care for his mother. 
8 No. 16-4046

Similarly, the Second Circuit case that Zacahua cites—

United States v. Gonzales, 884 F.3d 457 (2d Cir. 2018) (per curiam)—is readily distinguishable. Gonzales initially learned 

through his PSR that he faced deportation after completing 

his sentence, and the record shows that he raised the issue 

with the court during his sentencing hearing after learning of 

this consequence. Gonzales, 884 F.3d at 459. Because Gonzales 

preserved his objection to the district court’s Rule 11 error, the 

Second Circuit reviewed the record for “harmless error,” rather than plain error. Id. at 461. Therefore, unlike this case, the 

burden rested with the government. 

To explain that there is a reasonable likelihood he would 

have changed his sentence, Zacahua compares his situation to 

that of a co-defendant, Maria Moreno. Zacahua argues that, 

because Moreno also received a ten-year sentence after a jury 

convicted her on all counts at trial, he would have likely taken 

his chances at trial had he known of the immigration consequences of his guilty plea. But this argument is flawed. First, 

Moreno did not receive her sentence until November 20, 2017, 

nearly a year after Zacahua entered his guilty plea, making it 

impossible for him to have also considered Moreno’s sentence 

when deciding whether to plead guilty. Second, even if timing were not an issue, it is impossible to tell to what extent

Moreno’s decision to proceed to trial influenced the judge’s 

sentence. Moreno’s sentence is therefore irrelevant to whether 

there is a reasonable probability Zacahua would have 

pleaded guilty had the district court informed him of the immigration consequences of his guilty plea. 

We end by repeating an important note to district judges, 

prosecutors, and defense counsel. Although Zacahua was unable to demonstrate plain error on this record, omissions like 
No. 16-4046 9

the one at issue in this case “are far from inconsequential and 

entirely preventable.” United States v. Polak, 573 F.3d 428, 432 

(7th Cir. 2009). To avoid this type of appeal in the future, we

recommend that district court judges utilize a checklist that 

outlines the Rule 11 requirements at every plea colloquy they 

conduct. See id. at 432–33; United States v. Stoller, 827 F.3d 591, 

597 (7th Cir. 2016); United States v. Fard, 775 F.3d 939, 947 (7th 

Cir. 2015); United States v. Brown, 571 F.3d 690, 695 (7th Cir. 

2009).

Critically, we again emphasize that the prosecutor and defense counsel share the responsibility of ensuring the district 

court complies with the requirements of Rule 11. See Polak, 573 

F.3d at 432. If the court inadvertently omits a required warning during the plea colloquy, counsel should alert the court 

before the court accepts the defendant’s plea. Id.

III

For the foregoing reasons, we AFFIRM Zacahua’s conviction and sentence.