In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3558

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOEL VILLEGAS,

Defendant-Appellant.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 01 CR 885—Joan Humphrey Lefkow, Judge.

____________

ARGUED DECEMBER 12, 2003—DECIDED NOVEMBER 4, 2004

____________

Before COFFEY, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge. In November 2001, a grand jury

returned a two-count indictment against Joel Villegas; the

indictment charged Mr. Villegas with one count of possessing with intent to distribute cocaine in violation of 21

U.S.C. § 841(a) and with one count of carrying a firearm in

relation to a drug trafficking offense in violation of 18 U.S.C.

§ 924(c). Mr. Villegas moved to suppress the evidence on

which the indictment was based. After the district court

denied the motion without an evidentiary hearing, Mr.

Villegas entered an unconditional plea of guilty on both
2 No. 02-3558

1 Mr. Villegas’ affidavit in support of his motion to suppress is

silent with respect to whether (and how) the officers identified

themselves and communicated their desire to speak with Mr.

Villegas. Mr. Villegas offers no conflicting version of events; his

only statement concerns the officers’ physical entry into the apartment, which, he states, was “without invitation.” Mr. Villegas

also states later in his affidavit that he never gave the officers oral

permission to search the premises; again, the record is silent

concerning whether he agreed to speak with the officers.

counts and was sentenced to 180 months’ imprisonment.

Mr. Villegas now challenges aspects of his guilty plea and

his sentence. We affirm.

I

BACKGROUND

A. Facts

On October 19, 2001, agents from the Drug Enforcement

Administration (“DEA”) went to Mr. Villegas’ apartment to

question him about possible involvement in drug trafficking. The agents did not possess a warrant to search the

premises or a warrant for Mr. Villegas’ arrest. When the

agents approached the door of the apartment, they knocked

and identified themselves as police officers. Mr. Villegas

opened the door. One of the officers asked Mr. Villegas if

they could speak with him. According to the officers, Mr.

Villegas agreed to do so.1

 At this point, the parties’ version

of events diverge.

1. Events According to Mr. Villegas

The following events are set forth in Mr. Villegas’ affidavit

in support of his motion to suppress. Mr. Villegas related

that the agents entered his apartment “without invitation.”
No. 02-3558 3

R.18, ¶ 2. Upon entering the apartment, one of the agents

“began to conduct a search of the premises” and another

“began to attempt to converse with the defendant, while

another stood close by.” Id. ¶ 3. The agent who was speaking to Mr. Villegas first attempted to communicate in

English and then in Spanish. According to Mr. Villegas, “[t]he

Spanish portion of the conversation was very limited, and

not understood by the defendant. The defendant did not understand the English portion of the conversation.” Id. ¶ 4. One

of the agents then

presented a document to the defendant and directed the

defendant to place his name on the document, in the

space the agent directed him to. This document was a

consent to search form. The defendant did not read the

document, nor was it read to him, prior to its execution.

The defendant placed a signature on the document

because he was directed to do so by the law enforcement

agent. The defendant did not knowingly and voluntarily

consent to the search of the residence. The defendant

singed [sic] the document because the armed law enforcement agent directed him to do so.

Id. ¶ 6. The consent-to-search form provided to Mr. Villegas

was in Spanish; the English equivalent of the form provided

to Mr. Villegas is titled “CONSENT TO SEARCH” and

states:

1. I HAVE BEEN ASKED TO PERMIT SPECIAL

AGENTS OF THE DRUG ENFORCEMENT ADMINISTRATION TO SEARCH: (Describe the person, place or things to be searched.)

2. I HAVE NOT BEEN THREATENED, NOR FORCED

IN ANY WAY.
4 No. 02-3558

2 Mr. Villegas does not maintain that he does not read and understand the Spanish language.

3. I FREELY CONSENT TO THIS SEARCH.

R.25.2

 Mr. Villegas signed this consent form “Pedro Vargas.”

2. Events According to the DEA Agents

The officers’ version of events differs in some respects

from that of Mr. Villegas. After securing Mr. Villegas’ agreement to speak with them, the officers entered Mr. Villegas’

apartment. One of the agents then “inquired if there were

any illegal narcotics or guns or money or anything in the

house.” R.18, App. (Transcript of Proceedings Oct. 25, 2001)

at 5. Mr. Villegas responded that there were not. Another

agent then asked in Spanish if they could search the house

“to make sure that none of that was present in the house.”

Id. Mr. Villegas responded that they “could look around the

apartment.” Id. at 6. At that time, Mr. Villegas also signed a

consent-to-search form written in Spanish. The officers then

conducted a search of the apartment. Among the items the

officers discovered was a pay stub with the name “Joel

Villegas” on it. An officer asked Mr. Villegas if the name on

the stub was his real name, and Mr. Villegas responded that

it was. Then, in Mr. Villegas’ presence, one of the agents

copied the information from the original consent-to-search

form onto a new form. An officer then told Mr. Villegas that

the new form was the same as the old and instructed Mr.

Villegas to sign his correct name to this new form, which

Mr. Villegas did.

During the course of the search, the officers also uncovered nine kilograms of cocaine hidden in a television in the

back bedroom, approximately twenty thousand dollars in
No. 02-3558 5

cash and a loaded handgun. Based on the evidence found in

the apartment, the agents placed Mr. Villegas under arrest

and transported him to the DEA’s Chicago field office.

3. Events Subsequent to Mr. Villegas’ Arrest

Upon arrival at the DEA office, Mr. Villegas was given his

Miranda warnings and signed a written waiver (in Spanish)

of his rights. The officers then interviewed Mr. Villegas concerning the search at his apartment. The agents asked Mr.

Villegas if he understood the consent forms he had signed.

According to the investigation report, Mr. Villegas indicated

that he understood and that he was asked to sign a second

form because he had used a “made-up” name on the first.

R.22, Ex.4 ¶ 2. Mr. Villegas also admitted to possessing and

concealing the cocaine that had been found in his apartment.

B. District Court Proceedings

A jury returned a two-count indictment against Mr.

Villegas; the indictment charged Mr. Villegas with possession with intent to distribute over five kilograms of cocaine,

in violation of 21 U.S.C. § 841(a), and with possession of a

firearm in connection with a drug trafficking offense, in

violation of 18 U.S.C. § 924. Mr. Villegas initially entered a

plea of not guilty and, through counsel, moved to suppress

the evidence obtained during the search of his apartment.

Mr. Villegas also requested an evidentiary hearing on his

motion.

The district court denied Mr. Villegas’ request for a hearing and denied the motion to suppress. In its order disposing of the motion, the court first recounted the facts as set

forth by Mr. Villegas in his affidavit. The district court then

reviewed the law concerning a consent to search:
6 No. 02-3558

Under well-settled law, a warrantless search violates

the Fourth Amendment unless certain exceptions are

established, among them, consent. See United States v.

Pedroza, 269 F.3d 821, 827 (7th Cir. 2001). In determining

consent to search, the court is to consider the totality of

the circumstances. See Schneckloth v. Bustamonte, 412 U.S.

218, 248-49 (1973) (“Voluntariness is a question of fact

to be determined from all the circumstances”). The

prosecutor “must demonstrate that the subject’s knowledge of a right to refuse consent is a factor to be taken

into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing

a voluntary consent.” Id. at 248-49. Consent may be implied from conduct as well as verbally. See United States

v. Guiterrez, 92 F.3d 468, 471 (7th Cir. 1996) (defendant

impliedly consented to search of truck when handed

over the keys).

R.26 at 2.

The court then noted that Mr. Villegas had “not assert[ed]

that he did not realize the agents were law enforcement

officers or that the agents forced themselves into the

apartment, rather he carefully chose[ ] the words ‘without

invitation.’ ” Id. Therefore, the court held,

the attestations of defendant, if taken as true, do not

bear indicia of coercion or duress. Even if the defendant

did not understand he was being asked for consent to

search—a proposition on the face of the record highly

improbable—defendant was in a position to observe

what was happening and did nothing to assert lack of

consent.

Id. (internal citations omitted). “Thus,” concluded the court,

“the facts suggest at most that defendant consented because

he did not understand that he could say no. But, as indi-
No. 02-3558 7

cated above, that is insufficient under [the] law to invalidate

the search.” Id. (citing Guiterrez, 92 F.3d at 471). Accordingly, the court denied the motion to suppress and the

request for an evidentiary hearing.

After his motion to suppress was denied, Mr. Villegas

entered an unconditional plea of guilty on both counts of

the indictment. The district court subsequently sentenced

him to 180 months’ imprisonment, the statutory mandatory

minimum for the crimes to which Mr. Villegas pleaded

guilty.

II

DISCUSSION

On appeal, Mr. Villegas raises three issues, all of which

concern the performance of his counsel in the district court.

First, Mr. Villegas claims that he received ineffective assistance of counsel because his attorney failed to advise him

properly concerning his guilty plea. Second, Mr. Villegas

maintains that his counsel was ineffective in failing to cite

persuasive authority to the district court with respect to his

request for an evidentiary hearing on the motion to suppress. Finally, Mr. Villegas maintains that his counsel was

ineffective at sentencing because he failed to request a downward departure based on Mr. Villegas’ role in the offense.

We consider each of these issues below.

A.

Mr. Villegas uses the bulk of his brief to set forth the merits of his suppression motion. He claims that if his counsel

had cited pertinent authority to the district court, the court

would have been persuaded to conduct an evidentiary hear-
8 No. 02-3558

ing and to suppress the evidence found in his apartment.

However, as noted by the Government, and admitted by

Mr. Villegas, “an unconditional guilty plea waives all nonjurisdictional defects occurring prior to the plea, including

Fourth Amendment claims like the one raised here.” United

States v. Elizalde-Adame, 262 F.3d 637, 639 (7th Cir. 2001). Mr.

Villegas nevertheless urges this court to look beyond his

plea because, he claims, he received constitutionally ineffective assistance of counsel with respect to the entry of his

plea.

1. Standard for Granting Relief

The Supreme Court has held that “a defendant who pleads

guilty upon the advice of counsel ‘may only attack the voluntary and intelligent character of the guilty plea by showing

that the advice he received’” was constitutionally ineffective. Hill v. Lockhart, 474 U.S. 52, 56 (1985). In Lockhart, the

Court explained that “the two-part Strickland v. Washington[,

466 U.S. 668 (1984),] test applies to challenges to guilty pleas

based on ineffective assistance of counsel.” Id. at 58. Thus,

in order to prove a Sixth Amendment violation in the context of a guilty plea, a defendant first has to establish that

his counsel’s actions during plea negotiations fell outside

“the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689. Second, a defendant must establish prejudice as a result of his counsel’s actions. The Court

in Lockhart explained:

The second, or “prejudice,” requirement . . . focuses on

whether counsel’s constitutionally ineffective performance

affected the outcome of the plea process. In other words,

in order to satisfy the “prejudice” requirement, the

defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have
No. 02-3558 9

pleaded guilty and would have insisted on going to trial.

Lockhart, 474 U.S. at 59. The prejudice element, for purposes

of an ineffective assistance claim raised in the context of a

guilty plea, often will depend on the performance of counsel

at other stages in the proceedings. The Court noted that “the

‘prejudice’ inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial.” Id. at 59. The

Court gave the following example:

[W]here the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence,

the determination whether the error “prejudiced” the

defendant by causing him to plead guilty rather than go

to trial will depend on the likelihood that discovery of

the evidence would have led counsel to change his

recommendation as to the plea. This assessment, in turn,

will depend in large part on a prediction whether the

evidence likely would have changed the outcome of a

trial.

Id. at 59-60 (citations omitted). With this standard in mind,

we turn to Mr. Villegas’ ineffective assistance claim.

2. Propriety of Considering Ineffective Assistance on

Direct Appeal

Before we evaluate the merits of Mr. Villegas’ claim, however, we must consider whether Mr. Villegas’ ineffective

assistance of counsel claims should be resolved on this

direct appeal. “[A]ppellate courts generally do not consider

claims of ineffective assistance of counsel on direct appeal

from guilty pleas. This is because often ‘there has been no

opportunity to develop and include in the record evidence

bearing on the merits of the allegations.’ ” United States v.
10 No. 02-3558

Fisher, 772 F.2d 371, 373 (7th Cir. 1985) (quoting United States

v. Stephens, 609 F.2d 230, 234 (5th Cir. 1980) (internal

citations omitted)).

The general rule is applicable here. The record on appeal

does not contain a transcript of the plea hearing, much less

evidence regarding the plea negotiations, the advice Mr.

Villegas received during those negotiations or his counsel’s

decision-making process. It is therefore impossible on the

record before us to determine whether counsel’s performance was constitutionally sufficient. However, “[e]ven if

the record is insufficiently developed, we need not remand

to the district court if we determine that the defendant

cannot establish that he or she suffered some prejudice.”

United States v. Asubonteng, 895 F.2d 424, 428-29 (7th Cir.

1990). We consider, therefore, the possible prejudice to Mr.

Villegas.

As noted above, whether a defendant was prejudiced by

the entry of a guilty plea may depend, in large part, on the

merits of other legal claims. In Lockhart, the Court gave the

example of a counsel’s failure to discover exculpatory evidence. In that scenario, the court explained,

the determination whether the error “prejudiced” the

defendant . . . will depend on the likelihood that discovery of the evidence would have led counsel to change

his recommendation as to the plea. This assessment, in

turn, will depend in large part on a prediction whether

the evidence likely would have changed the outcome of

a trial.

Id. at 59. Here, Mr. Villegas’ claim is that, had his attorney

pursued the suppression motion more vigorously, the motion would have been granted, and he would not have entered an unconditional guilty plea. Thus, the determination

of whether Mr. Villegas suffered prejudice as a result of the
No. 02-3558 11

entry of an unconditional plea rests in large part on the underlying Fourth Amendment claim.

B.

Mr. Villegas argues on appeal that his counsel’s failure to

research adequately the suppression issue resulted in the

district court’s failure to hold an evidentiary hearing and to

grant his motion. The Government contends that, given the

undisputed facts that formed the basis of the district court’s

determination, the district court correctly denied the motion

to suppress on the merits.

1. Evidentiary Hearing

Mr. Villegas’ first claim does not require lengthy discussion. He maintains that his attorney failed to cite appropriate authority to the district court in seeking an evidentiary

hearing on the motion to suppress. We have explained that

“evidentiary hearings on motions to suppress are not granted

as a matter of course but are held only when the defendant

alleges sufficient facts which if proven would justify relief.”

United States v. Coleman, 149 F.3d 674, 677 (7th Cir. 1998).

“Evidentiary hearings are warranted only when the allegations and moving papers are sufficiently definite, specific,

non-conjectural and detailed enough to conclude that a substantial claim is presented and that there are disputed issues

of material fact which will affect the outcome of the motion.”

Id. (citations omitted). Furthermore, a “district court [i]s

obliged to hold a hearing only if the difference in facts is

material, that is, only if the disputed fact makes a difference

in the outcome.” United States v. Berkowitz, 927 F.2d 1376,

1384 (7th Cir. 1991).

Here, in disposing of Mr. Villegas’ suppression motion,

the court relied upon Mr. Villegas’ version of the events sur-
12 No. 02-3558

rounding the search and other facts that Mr. Villegas did not

contest. See R.26 at 2 (“Defendant proffers the following

facts . . . .”). The court did not resolve any issues of disputed

fact in reaching its decision to deny the motion to suppress.

Because the purpose of an evidentiary hearing is to resolve

material factual disputes among the parties, a hearing is not

required in the absence of such disputes. Consequently, the

district court did not commit error in denying the hearing

on the motion to suppress.

2. Unreasonable Search

Mr. Villegas also claims that the district court erred in

failing to grant his motion to suppress on the undisputed

facts that were before the court. According to Mr. Villegas,

the undisputed facts establish that the agents’ initial entry

into his apartment was illegal because it was “without invitation.” An “explicit verbal consent” or any other form of affirmative invitation to enter a dwelling is not necessary to

constitute “consent” for purposes of the Fourth Amendment.

United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir.

2002). “[C]onsent may be manifested in a non-verbal as well

as verbal manner . . . .” United States v. Walls, 225 F.3d 858,

863 (7th Cir. 2000); see United States v. Cotnam, 88 F.3d 487,

495 (7th Cir. 1996) (“A person can, however, consent to the

entry of their home or hotel by officers, and consent need be

neither express or verbal.”).

As noted by the district court, this is not a case in which

the officers pushed Mr. Villegas aside or otherwise asserted

their authority to gain entry to the apartment. The DEA

agents knocked on the door and identified themselves as law

enforcement officers. Mr. Villegas subsequently opened the

door for the officers. The officers asked Mr. Villegas if they

could speak with him; they did not threaten Mr. Villegas in
No. 02-3558 13

3 This is not a case, as asserted by Mr. Villegas, controlled by our

holding in United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991).

In Berkowitz, the defendant alleged that the police came to his

home and knocked on the door. Berkowitz opened the door, and

the police immediately entered the house and arrested Berkowitz.

Because “the police . . . enter[ed] a person’s home, without his

consent, before announcing their authority to arrest,” id. at 1387,

the action of opening the door could not be considered consent for

the officers to enter the house and effectuate the arrest.

Here, by contrast, there is no dispute that the agents identified

themselves as law enforcement personnel and announced their

desire to speak to Mr. Villegas prior to their entry into the apartment.

any way or brandish their weapons when making the request.

Mr. Villegas assented, and the officers then entered the

apartment. There is “nothing in the sequence of events that

evidences coercion or duress,” Walls, 225 F.3d at 863, or any

objection by Mr. Villegas to the officers’ entry. Under these

circumstances, therefore, we believe that Mr. Villegas

sufficiently manifested consent for the officers to enter his

apartment.3

Mr. Villegas also maintains that the ensuing search cannot

be justified on the basis of a voluntary consent. The burden

is on the Government to prove, by a preponderance of the

evidence, “that someone who consents to a search does so

freely and voluntarily.” United States v. Saadeh, 61 F.3d 510,

518 (7th Cir. 1995) (citing Schneckloth, 412 U.S. at 222). “We

look to the totality of the circumstances to determine

whether consent arose from coercion and duress, or from

voluntariness.” Id. Among the relevant factors to consider

are:

(1) the person’s age, intelligence, and education, (2)
14 No. 02-3558

4 In this case, Mr. Villegas signed two consent-to-search forms in

his apartment. Both consents attest that Mr. Villegas had not been

“threatened or forced” and that his consent was “freely given.”

R.22, Exs.1 & 2; R.25. Furthermore, after Mr. Villegas’ arrest, he

was given his Miranda warnings and signed a waiver (in Spanish)

of his rights. In his interview with officers that followed, Mr.

Villegas stated affirmatively that he understood the forms that he

had signed at his apartment. Finally, there was no illegal evidence found prior to the time that the consent-to-search form was

signed, nor was there any show of force by the DEA agents

(continued...)

whether he was advised of his constitutional rights, (3)

how long he was detained before he gave his consent,

(4) whether his consent was immediate, or was prompted

by repeated requests by the authorities, (5) whether any

physical coercion was used, and (6) whether the individual was in police custody when he gave his consent.

United States v. Raibley, 243 F.3d 1069, 1075-76 (7th Cir. 2001).

Here, there is no evidence of coercion or duress. Mr.

Villegas does not allege that the officers’ entry and presence

in the apartment was anything except peaceable; the DEA

agents did not use force to gain entry into the apartment

or to maintain their presence. Mr. Villegas was not under

arrest when the agents requested permission to search the

apartment. Additionally, the agents did not threaten to secure a warrant in the absence of Mr. Villegas’ cooperation.

See Saadeh, 61 F.3d at 518. Nor did the agents use repeated

requests to badger Mr. Villegas into consenting to the search.

Raibley, 243 F.3d at 1076; see also Pedrozo, 269 F.3d at 829.

Finally, Mr. Villegas was presented the consent-to-search

form in Spanish, his first language, and the form explicitly

stated that the signer was not “threatened, nor forced in any

way” and that he “freely consent[ed]” to the search.4

 Conse-
No. 02-3558 15

4 (...continued)

present that might undermine the consent.

5 Mr. Villegas argues that, even if the consent was voluntary, the

evidence discovered was the result of the initial illegal entry and,

therefore, should be suppressed. As we already have explained,

we do not believe that the initial entry was illegal. However, even

if we had reached the opposite conclusion, we believe that the

items discovered after the search were “sufficiently distinguishable” from the initial entry as to be “purged of the primary taint.”

Wong Sun v. United States, 371 U.S. 471, 488 (1963) (internal

quotation marks omitted). To determine whether evidence is

sufficiently distinguishable from the illegality, courts look to

three factors: (1) the temporal proximity of the illegal entry and

the search; (2) the presence of intervening factors between the

two events; and (3) the nature of the official misconduct and the

circumstances surrounding that conduct. See Brown v. Illinois, 422

U.S. 590, 603-04 (1975). Here, although the search of the apartment occurred shortly after the initial entry, the other two factors

suggest that the two events should be considered distinct.

“Without doubt, a voluntary consent is a powerful ‘intervening

factor’ that should be weighed in the Brown balance . . . .” United

States v. Liss, 103 F.3d 617, 623 (7th Cir. 1997) (Ripple, J., concurring). Furthermore, if there was official misconduct, it was far

from egregious; there are no allegations that the DEA agents used

threats or a show of force to enter the premises. See, e.g., Brown,

422 U.S. at 605 (considering whether the police conduct was

“calculated to cause surprise, fright, or confusion”).

quently, the totality of the circumstances establish that Mr.

Villegas’ consent to search the apartment was voluntary.5

Thus, we agree with the district court that, even taking the

facts as alleged by Mr. Villegas to be true, his consent to

search his apartment was voluntary.

Because the district court committed no error in denying

the motion to suppress, Mr. Villegas was not prejudiced in

any way by his counsel’s failure to present more vigorously
16 No. 02-3558

his request for an evidentiary hearing or his substantive

motion to suppress. Similarly, he has not suffered any

prejudice as a result of his unconditional plea, and his Sixth

Amendment claim with respect to the proceedings culminating in his plea must fail.

C.

Mr. Villegas’ final argument is that his counsel was constitutionally ineffective when he failed to seek a reduction

for Mr. Villegas’ minor role in the offense. We find no merit

in this argument. Mr. Villegas pleaded guilty to one count

of violating § 841(a), possessing with intent to distribute

over five kilograms of cocaine. This crime carries a mandatory ten-year sentence. 21 U.S.C. § 841(b). Mr. Villegas also

pleaded guilty to using a firearm in relation to a drug trafficking offense in violation of § 924(c), a crime that carries a

mandatory minimum sentence of five years, to be served

consecutively to the sentence for the underlying crime.

18 U.S.C. § 924(c)(1)(A)(i). The district court sentenced Mr.

Villegas to the mandatory minimum length of imprisonment

for each crime. Consequently, even if counsel failed in some

way with respect to representing Mr. Villegas at sentencing,

this failing did not impact Mr. Villegas’ sentence.

Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED

A true Copy:
No. 02-3558 17

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-4-04