1 We shorten his name for easy reading.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3514

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GERARDO VILLARREAL-TAMAYO,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 04 CR 266—Rudolph T. Randa, Chief Judge.

____________

ARGUED SEPTEMBER 12, 2006—DECIDED OCTOBER 30, 2006

____________

Before COFFEY, ROVNER, and EVANS, Circuit Judges.

EVANS, 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 overturned 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 Tamayo1

 didn’t

first ask the district court to allow him to walk away from
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 government 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 plea2

.” The judge advised Tamayo of the rights he was

waiving by pleading guilty and informed him of the elements 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
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, Wisconsin; 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 methamphetamine 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 inclusion of the methamphetamine conviction, nor moved to

withdraw the guilty plea; the attorney instead stated that

“there were no factual errors [in the presentence investigation report] but merely disagreement with the guidelines

calculation.” Judge Randa, accordingly, overruled Tamayo’s
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 withdraw it in the district court. This is incorrect; Vonn has

clearly spoken on that score. That is not to say the government’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 defendants first moved to withdraw their guilty pleas in the

district court before challenging them on appeal. Where a
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 aggravated 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. AlmendarezTorres, 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 Constitution does not require an enhancement based on recidivism
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 Amendment right to a jury trial by making findings as to his

criminal record that expose him to greater criminal penalties.’ ” (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 aggravated 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 AlmendarezTorres, 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

AFFIRMED.
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