United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 4, 2006

Decided January 5, 2006

Before

 Hon. RICHARD A. POSNER, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

 Hon. ILANA DIAMOND ROVNER, Circuit Judge 

No. 05-1268

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

 v.

MIGUEL VILLALOBOSSANDOVAL,

 Defendant-Appellant.

Appeal from the United States District

Court for the Eastern District of

Wisconsin

No. 04-CR-118

Lynn Adelman,

Judge.

O R D E R

 Miguel Villalobos-Sandoval entered an open guilty plea to being in the

United States without permission after he was removed following conviction for an

aggravated felony. See 8 U.S.C. § 1326(a), (b). He was sentenced to 42 months’

imprisonment, 2 years’ supervised release, and a special assessment of $100. 

Villalobos-Sandoval filed a notice of appeal, but his appointed lawyer now seeks to

withdraw because he cannot discern a nonfrivolous basis for appeal. See Anders v.

California, 386 U.S. 738 (1967). Villalobos-Sandoval was invited, pursuant to

Circuit Rule 51(b), to comment on counsel’s submission, but he has not responded. 

We therefore limit our review to the two potential issues counsel highlights. See

United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-1268 Page 2

Villalobos-Sandoval had been removed to Mexico in July 2003 following his

conviction in Wisconsin for distribution of cocaine. He turned up again in

Wisconsin in February 2004, and after his arrest, admitted that he returned to the

United States without authorization about a month after his removal. The district

court properly rejected Villalobos-Sandoval’s sole objection to the presentence

investigation report and calculated an advisory imprisonment range of 70 to 87

months based on a total offense level of 21 and a criminal history category of V. 

The court, however, after crediting Villalobos-Sandoval’s stated reason for returning

to the United States (he told the court he returned to care for his wife and child)

and effectively accepting as a matter of discretion the arguments he pressed in a

motion for downward departure and in the guideline objection the court had

overruled, imposed a prison term of 42 months, well below the guildeline minimum

of 70 months.

In his supporting brief, counsel first considers whether Villalobos-Sandoval

might argue that he cannot be convicted under § 1326(a) because he waived his

removal hearing and did not contest removal. Counsel concludes that this potential

argument would be frivolous, and we agree. There is no difference in status for

purposes of § 1326(a) between an alien who accepts removal without protest and

one who contests the government’s effort to return him to his home country. See 8

U.S.C. § 1326(a)(1) (defining as a felony the unauthorized reentry of “any alien” who

“has been denied admission, excluded, deported, or removed or has departed the

United States while an order of exclusion, deportation, or removal is outstanding”);

United States v. Galicia-Gonzalez, 997 F.2d 602, 603-04 (9th Cir. 1993) (alien who

conceded deportability and waived deportation hearing violated § 1326(a)); United

States v. Encarnacion-Galvez, 964 F.2d 402, 406-09 (5th Cir. 1992) (same). 

Moreover, the only way to collaterally challenge the deportation or removal order

underlying a § 1326(a) prosecution is to seek dismissal before trial on a showing

that “(1) the alien exhausted any administrative remedies that may have been

available to seek relief against the order; (2) the deportation proceedings at which

the order was issued improperly deprived the alien of the opportunity for judicial

review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C.

§ 1326(d); see United States v. Roque-Espinoza, 338 F.3d 724, 728 (7th Cir. 2003)

(analyzing § 1326(d)). Villalobos-Sandoval never attempted to make the requisite

showing, and, putting aside that he pleaded guilty, it is too late to press the matter

now because he could not show good cause for waiting until appeal to question the

underlying removal order. See Fed. R. Crim. P. 12(b)(3), (e); United States v.

Johnson, 415 F.3d 728, 731 (7th Cir. 2005) (defenses that Rule 12(a)(3) requires to

be made before trial are waived rather than forfeited absent showing of “good

cause” for dilatory presentment). In any event, Villalobos-Sandoval did plead guilty

and, as a consequence, both admitted “all of the factual and legal elements

necessary to sustain a binding, final judgment of guilt and a lawful sentence,”
No. 05-1268 Page 3

United States v. Broce, 488 U.S. 563, 569 (1989), and waived all non-jurisdictional

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

The only other potential issue identified by counsel is whether, despite the

fact that sentencing occurred after the Supreme Court decided United States v.

Booker, 534 U.S. 220 (2005), Villalobos-Sandoval could argue that he was

improperly subjected to the enhanced penalty under § 1326(b) when the judge and

not a jury determined that his Wisconsin conviction for distribution of cocaine

constituted an “aggravated felony.” See 8 U.S.C. § 1326(b) (elevating maximum jail

term from 2 to 20 years if prior removal was subsequent to conviction for

aggravated felony). But the proper characterization of the conviction is a legal, not

factual, question, see United States v. Martinez-Carillo, 250 F.3d 1101, 1103 (7th

Cir. 2001), and, regardless, prior convictions remain excluded from the limitations

on judicial factfinding that led to Booker, see Almendarez-Torres v. United States,

523 U.S. 224, 244 (1998); United States v. Pittman, 418 F.3d 704, 708-09 (7th Cir.

2005). This potential argument is therefore frivolous. 

Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.