                     NONPRECEDENTIAL DISPOSITION
                       To be cited only in accordance with
                               Fed. R. App. P. 32.1




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                              Argued June 12, 2007
                              Decided July 26, 2007

                                     Before

                   Hon. ILANA DIAMOND ROVNER, Circuit Judge

                   Hon. DIANE P. WOOD, Circuit Judge

                   Hon. DIANE S. SYKES, Circuit Judge

No. 05-4249
                                            Appeal from the United States
UNITED STATES OF AMERICA,                   District Court for the
    Plaintiff-Appellee,                     Western District of Wisconsin.

      v.                                    No. 05 CR 90

SEBASTIAN LOPEZ-GUENDULAIN,                 John C. Shabaz,
    Defendant-Appellant.                    Judge.



                                    ORDER

      Sebastian Lopez-Guendulain pleaded guilty to one count of being in the
United States without permission after his deportation. 8 U.S.C. § 1326(a).
Because the district court determined that he was convicted of an aggravated felony
before he was deported, Lopez-Guendulain was subject to a 20-year statutory
maximum. 8 U.S.C. § 1326(b)(2). And because the court also determined that this
aggravated felony qualified as a crime of violence, Lopez-Guendulain received a
16-level upward adjustment to his base offense level. U.S.S.G. 2L1.2(b)(1)(A)(ii).
Lopez-Guendulain now challenges both decisions as inconsistent with the holdings
No. 05-4249                                                                    Page 2

of Shepard v. United States, 544 U.S. 13 (2005), and Apprendi v. New Jersey,
530 U.S. 466 (2000). We affirm.

                                  I. Background

      Lopez-Guendulain, a citizen of Mexico, was deported in 2001 after he
completed a sentence for a sexual assault in Wisconsin. The criminal complaint in
the underlying case alleges that Lopez-Guendulain committed sexual assault of a
child, in violation of section 948.02(2) of the Wisconsin Statutes, by having sexual
intercourse with a person under age 16. The complaint identifies the victim as
“H.D., DOB 9/19/85,” and states that she was four or five months pregnant and
Lopez-Guendulain was the father of the baby. The original charge was later
reduced, and the Information filed in the case alleges that Lopez-Guendulain
committed third-degree sexual assault, in violation of section 940.225(3) of the
Wisconsin Statutes, for having nonconsensual sexual intercourse with the victim.
The Information again describes the victim as “H.D., DOB 9/19/85,” and alleges that
the crime occurred between March and June 2000—making her 14 years old at the
time of the offense.

     Lopez-Guendulain pleaded no contest to the reduced charge of third-degree
sexual assault. He served his state sentence and was then deported. In 2005 he
was again discovered in the United States and was charged with violating
§ 1326(a). Section 1326(a) ordinarily provides for a statutory maximum sentence of
two years’ imprisonment, but the maximum is enhanced to 20 years if the
defendant was deported after committing an “aggravated felony.” 8 U.S.C.
§ 1326(a), (b)(2). In addition, U.S.S.G. § 2L1.2(b)(1)(A)(ii) provides for a 16-level
upward adjustment to the base offense level if the defendant was deported after
committing a “crime of violence.”

      At sentencing the government contended that Lopez-Guendulain’s conviction
for third-degree sexual assault subjected him to both of these increases because the
offense constitutes sexual abuse of a minor—a crime that is specifically classified as
an aggravated felony, 8 U.S.C. § 1101(a)(43)(A), and as a crime of violence under the
relevant guideline, U.S.S.G. § 2L1.2. Lopez-Guendulain objected to characterizing
his conviction as one for sexual abuse of a minor, arguing that he never admitted
that the victim was underage. The district court rejected this argument; relying on
the Information and the plea colloquy from the state offense, the court concluded
that Lopez-Guendulain’s prior conviction constituted sexual abuse of a minor. The
court used that finding in calculating the guidelines imprisonment range and
sentenced Lopez-Guendulain to 45 months in prison—near the low end of the
applicable range.
No. 05-4249                                                                   Page 3

                                   II. Analysis

      Lopez-Guendulain’s principal argument is that the district court disregarded
the evidentiary constraints set out in Shepard in concluding that his prior offense
was for sexual abuse of a minor. Shepard and later cases that apply its holding to
the guidelines provide that when deciding how to classify a prior conviction for
purposes of determining sentencing ranges, sentencing courts may look beyond the
statutory language to the underlying conduct so long as the inquiry is limited to
charging documents, the plea agreement, the transcript of the plea colloquy, and
factual findings to which the defendant has assented. See Shepard, 544 U.S. at 16;
United States v. Peters, 462 F.3d 716, 719 (7th Cir. 2006); United States v. Kindle,
453 F.3d 438, 441-42 (7th Cir. 2006).

      In this case, the Information to which Lopez-Guendulain pleaded no contest
alleges that he had sexual intercourse with a 14-year-old without consent. As we
have noted, charging documents like an Information are permissible sources of
proof under Shepard. In addition, the transcript of Lopez-Guendulain’s plea
colloquy, another permissible source under Shepard, establishes that he admitted
the victim was underage. During the colloquy, Lopez-Guendulain’s counsel
stipulated that the court could use the facts alleged in the complaint as a factual
basis for the plea, and the court did so. The complaint alleges that Lopez-
Guendulain had sexual intercourse on numerous occasions with the victim, H.D., a
14-year-old girl.

      Lopez-Guendulain argues that the stipulation to the complaint is not
sufficient because it was made by his counsel, not by him, and because it did not
specifically enumerate every fact that was being admitted. These arguments are
without merit. Defense counsel’s admissions can bind the defendant. United States
v. Hernandez-Hernandez, 431 F.3d 1212, 1219 (9th Cir. 2005) (“[C]riminal
defendants are bound by the admissions of fact made by their counsel in their
presence and with their authority.”); see Kindle, 453 F.3d at 442 (concluding that
defendant’s burglary conviction was a crime of violence based in part on defendant’s
admissions through counsel); Gattem v. Gonzales, 412 F.3d 758, 761 n.4 (7th Cir.
2005) (concluding that admission by appellant’s counsel was sufficient to establish
that appellant solicited a sexual act from a person under 17); United States v.
Warren, 279 F.3d 561, 563 (7th Cir. 2002) (upholding upward adjustment based on
defendant’s admission through counsel at sentencing). Furthermore, courts have
accepted admissions as general as the one at issue here. See, e.g., United States v.
Miller, 478 F.3d 48, 51-52 (1st Cir.), cert. denied, 75 U.S.L.W. 3696 (U.S. June 25,
2007) (No. 06-11558); United States v. Espinoza-Cano, 456 F.3d 1126, 1132-33 & n.5
(9th Cir. 2006); see also United States v. Sperberg, 432 F.3d 706, 707-08 (7th Cir.
2005) (concluding that defendant’s silence in the face of judge’s statement at plea
colloquy that defendant threatened a guard with a gun was enough to show that
No. 05-4249                                                                   Page 4

defendant’s conviction under ambiguous statute for making threats was violent
felony).

      At oral argument Lopez-Guendulain contended that the district court should
not have considered his plea to the Information or statements from the plea
colloquy because his limited command of English prevented him from knowing what
he was admitting. This argument is simply an attempt by Lopez-Guendulain to
collaterally attack his state conviction, which is impermissible in this context. See
Ryan v. United States, 214 F.3d 877, 879-80 (7th Cir. 2000).

      Finally, Lopez-Guendulain appears to argue that the district court violated
the rule of Apprendi because it subjected him to the enhanced statutory maximum
under § 1326(b) based on facts that were not found by a jury beyond a reasonable
doubt. (Def. Br. 11-12.) Apprendi is inapplicable here; the facts at issue concern
Lopez-Guendulain’s prior conviction for sexual assault, and facts about a prior
conviction are not subject to the rule in Apprendi. Almendarez-Torres v. United
States, 523 U.S. 224, 239 (1998); United States v. Williams, 410 F.3d 397, 402 (7th
Cir. 2005).

     Accordingly, we AFFIRM Lopez-Guendulain’s sentence.
