United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued August 6, 2008

Decided August 25, 2008

Before

 FRANK H. EASTERBROOK, Chief Judge

 MICHAEL S. KANNE, Circuit Judge

 DIANE P. WOOD, Circuit Judge

No. 07-3845

UNITED STATES OF AMERICA,

Plantiff-Appellee,

v.

EFRAIN FLORES-SANCHEZ,

Defendant-Appellant.

Appeal from the United States District

Court for the Western District of

Wisconsin.

No. 07-CR-102-S-01

John C. Shabaz,

Judge.

O R D E R

Efrain Flores-Sanchez pleaded guilty to being a deported alien present in the United

States without the consent of the Attorney General, in violation of 8 U.S.C. § 1326(b). The

district court sentenced Flores-Sanchez to 60 months’ imprisonment. Flores-Sanchez argues

that the district court erred in applying a 16-level upward adjustment based on his prior

Wisconsin conviction for false imprisonment. He contends that under Wisconsin law, false

imprisonment is not a crime of violence as defined by U.S.S.G. § 2L1.2, and so there was no

basis for the adjustment. Because Flores-Sanchez waived this argument, we affirm.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 07-3845 Page 2

Flores-Sanchez was removed from the United States on December 3, 2004. He returned

without permission and was found in Madison, Wisconsin, on May 2, 2007. The next month

a grand jury in the Western District of Wisconsin returned an indictment against FloresSanchez, charging him with having been found in the United States after having been

removed. He pleaded guilty the following September.

The probation officer recommended a 16-level upward adjustment under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) based on Flores-Sanchez’s 2004 conviction under a Wisconsin statute

providing that “[w]hoever intentionally confines or restrains another without the person’s

consent and with knowledge that he or she has no lawful authority to do so is guilty of a Class

H felony.” WIS. STAT. § 940.30. Flores-Sanchez objected, arguing that “the Wisconsin false

imprisonment statute does not constitute a crime of violence” under the guidelines. For an

offense to qualify as a crime of violence under § 2L1.2(b), Flores-Sanchez maintained, the “use,

attempted use, or threatened use of physical force” must be an element of the offense. The

Government responded that Flores-Sanchez’s crime was indeed a crime of violence because

the judgment of conviction showed that he was convicted of unlawfully “restrain[ing]”

another, rather than simply “confining” her, and thus the crime of which he was convicted

necessarily involved the use of force.

At sentencing, after the Government explained its position to the court, the following

colloquy took place:

MR. CARRANZA: Judge, I guess briefly I would just state that before going

on the record Mr. O’Shea and I did discuss the issue

raised by my objection and he did provide to me or share

with me those documents that he just tendered to the

Court. I think I would agree at that point – at this point

the exhibit, especially with the information that my client

entered a plea to, clarifies things to the point where I

would agree with Mr. O’Shea there is no longer any

ambiguity as to whether at least the false imprisonment

conviction that Mr. Flores-Sanchez has on his record

qualifies as a criminal violence.

THE COURT: And would you then withdraw your objection?

MR. CARRANZA: I would, Your Honor.
No. 07-3845 Page 3

THE COURT: Does the Defendant, Mr. Sanchez, do you withdraw your

objection that has previously been stated by your attorney

to the Court?

INTERPRETER: Yes.

After noting that Flores-Sanchez’s objection to the 16-level increase had been withdrawn, the

court sentenced Flores-Sanchez to 60 months’ imprisonment, in the middle of the guidelines

range.

Flores-Sanchez raises only one issue: whether the district court erred in determining

that his state conviction for false imprisonment constituted a crime of violence for purposes

of U.S.S.G. § 2L1.2. Flores-Sanchez waived this argument, and so his sentence must be

affirmed.

“‘Waiver occurs when a criminal defendant intentionally relinquishes a known right.’”

United States v. Clements, 522 F.3d 790, 793 (7th Cir. 2008) (quoting United States v. Brodie, 507

F.3d 527, 530 (7th Cir. 2007)). “The touchstone of waiver is a knowing and intentional

decision.” United States v. Allen, 529 F.3d 390, 394 (7th Cir. 2008) (quoting United States v. JaimesJaimes, 406 F.3d 845, 848 (7th Cir. 2005)). Waiver “extinguishes any error and precludes

appellate review.” Brodie, 507 F.3d at 530; United States v. Haddad, 462 F.3d 783, 793 (7th Cir.

2006); United States v. Murray, 395 F.3d 712, 717 (7th Cir. 2005). “We have found waiver where

either a defendant or his attorney expressly declined to press a right or to make an objection.”

United States v. Cooper, 243 F.3d 411, 416 (7th Cir. 2001).

Both Flores-Sanchez and his attorney were asked by the district court if they withdrew

the objection to the 16-level upward adjustment, and each responded that they did. FloresSanchez knowingly and intentionally relinquished his right to challenge the applicability of

the adjustment. Because he did so, there is nothing left for us to review.

Shortly before this case was orally argued, another panel of this court decided United

States v. Billups, No. 07-2037 (7th Cir. July 29, 2008). Billups held that WIS. STAT. § 940.30—the

same Wisconsin false imprisonment statute at issue in this case—is a crime of violence for

purposes of determining whether a defendant is a career offender under U.S.S.G. § 4B1.2. The

career offender guideline, however, differs markedly from § 2L1.2, the guideline at issue here.

Both guidelines define “crime of violence,” subject to certain qualifications, as an “offense

under federal, state, or local law that has as an element the use, attempted use, or threatened

use of physical force against the person of another,” see U.S.S.G. §§ 2L1.2 cmt. (1)(B)(iii);

4B1.2(a)(1). But only the career criminal guideline—not the illegal re-entry guideline—adds
No. 07-3845 Page 4

that a crime of violence is also any felony that “involves conduct that presents a serious risk of

physical injury to another.” See U.S.S.G. § 4B1.2(a)(2); Billups, slip op. at 4.

Billups held that a conviction under § 940.30 “involves conduct that presents a serious

risk of physical injury to another,” but it held that § 940.30 did not have as an element the “use,

attempted use, or threatened use of physical force.” Billups, slip op. at 4. Billups thus rejected

the interpretation of § 2L1.2 adopted by the Government at Flores-Sanchez’s sentencing

hearing. If he had not waived the point, Flores-Sanchez may have had a valid argument that

the district court miscalculated the advisory guideline range for his sentence.Recognizing that

the Government had the option of standing on the waiver or foregoing it, we asked at oral

argument which course the Government wished to take. It responded that it wished to stand

on the waiver and, if necessary, litigate the sentencing issue after Flores-Sanchez files a motion

to vacate his sentence under 28 U.S.C. § 2255 for ineffective assistance of counsel (as he almost

assuredly will). 

Flores-Sanchez’s sentence is therefore AFFIRMED.