                         In the
 United States Court of Appeals
              For the Seventh Circuit
                      ____________

No. 06-2838
UNITED STATES OF AMERICA,
                                         Plaintiff-Appellee,
                            v.

JUAN CABADA ARENAL,
                                      Defendant-Appellant.
                      ____________
         Appeal from the United States District Court
             for the Eastern District of Wisconsin.
       No. 05 CR 318—Rudolph T. Randa, Chief Judge.
                      ____________
  ARGUED APRIL 11, 2007—DECIDED SEPTEMBER 5, 2007
                    ____________


 Before CUDAHY, KANNE, and WOOD, Circuit Judges.
   KANNE, Circuit Judge. Juan Cabada Arenal pled guilty
to conspiring to distribute 100 grams or more of a mixture
containing heroin and cocaine. His sentence was 300
months’ imprisonment, eight years’ supervised release, a
$100 special assessment, and $400 in restitution. On
appeal, Arenal argues that the plea agreement and the
information before the court were not sufficient to estab-
lish the factual basis for his guilty plea. He also argues
that the evidence does not support the quantity of drugs
that guided the district court’s sentence. For the rea-
sons set forth below, we affirm.
2                                              No. 06-2838

                       I. HISTORY
  Arenal, an immigrant from Cuba, is no stranger to the
federal drug laws, having been previously convicted of
drug trafficking crimes three times since his admission to
this country. Arenal was on supervised release when his
co-conspirators turned against him by cooperating with
law enforcement officers. He was arrested yet again. The
informants fingered Arenal as a high-volume drug dealer.
Evidence gathered in the investigation supported this
claim.
  On December 20, 2005, Arenal was indicted on two
counts: (1) conspiracy to distribute controlled substances
in violation of 21 U.S.C. § 846, and (2) possession of a
mixture of cocaine and heroin with intent to distribute in
violation of 21 U.S.C. § 841(a)(1). On March 7, 2006, a
grand jury returned a superseding indictment against
Arenal and others, adding additional counts and additional
defendants. The quantity of drugs charged under Count 1
was larger in the superseding indictment (500 grams)
than it was in the original indictment (100 grams). Arenal
entered into a plea agreement with the government and
on March 14, 2006 he pled guilty to Count 1 of the orig-
inal indictment.
  Arenal’s plea agreement included details of a drug
transaction, initiated by a confidential informant, which
had led to Arenal’s arrest. It also included details from
ten days of surveillance on an apartment building where
Arenal was observed conducting drug transactions. The
apartment, which he apparently shared with his girlfriend,
contained heroin trafficking paraphernalia when it was
searched after his arrest. In the written plea agreement,
Arenal agreed that the facts laid out in the agreement
constituted an adequate factual basis for his plea of guilty
to conspiracy to distribute heroin. On March 14, 2006,
Arenal entered his guilty plea. The court asked him if the
No. 06-2838                                                3

facts outlined on pages two through four of his plea
agreement “provide a factual basis for this plea.” Arenal
replied, “yes.” His attorney replied, “yes, sir.” The govern-
ment agreed.
  In anticipation of sentencing on the guilty plea, a
presentence investigation report (PSR) was prepared. The
PSR contained a far more extensive record of Arenal’s
involvement in drug trafficking. It included information
about out-of-town trips to acquire drugs. It included
details of a ring of traffickers that included Arenal’s
girlfriend and the defendants who were eventually added
as Arenal’s co-defendants in the superseding indictment.
It included names of various customers of Arenal.
  Arenal now argues that the district court did not ade-
quately ensure the existence of a factual basis for his
guilty plea. He argues that the only information affirma-
tively adopted by the district court at the plea hearing
was the plea agreement, and that the information con-
tained in the PSR was never affirmatively adopted as the
factual basis of the guilty plea by the district court. He
asserts that the plea agreement alone does not contain
enough information to establish the conspiracy charge. He
urges us to reverse the judgment of the district court
because the court violated FED. R. CRIM. P. 11(b)(3).
  In a similar argument, he also challenges the quantity
of drugs that the district court accepted in determining
his offense level at sentencing. Based on the facts in the
plea agreement, which contained information about the
one failed drug transaction that led to Arenal’s arrest,
Arenal argues that the total amount of drugs is less
than 100 grams. The government counters that Arenal
agreed in his plea agreement that the government had
sufficient evidence to support a conviction for more than
100 grams, and that the PSR contains additional evid-
ence of drug quantities far in excess of 100 grams.
4                                               No. 06-2838

                       II. ANALYSIS
A. Factual Basis for the Guilty Plea
  The government concedes that the plea agreement it-
self contains a less than satisfactory recitation of all the
relevant facts. But the government urges us to consider
not just the information contained in the plea agreement
and colloquy, but also in the rest of the record before the
district court prior to its entry of judgment, including the
PSR. Because Arenal did not object to the factual basis
in the district court (and in fact affirmatively endorsed
the record as being adequate to support the factual basis),
our review is for plain error only. United States v. Vonn,
535 U.S. 55, 59 (2002); United States v. Driver, 242 F.3d
767, 769 (7th Cir. 2001). In order to prevail, Arenal must
show that an error occurred, that it was plain, and that
the error affected the “fairness, integrity or public reputa-
tion of judicial proceedings.” United States v. Olano, 507
U.S. 725, 732 (1993) (quoting United States v. Young, 470
U.S. 1, 15 (1985); United States v. Atkinson, 297 U.S. 157,
160 (1936)).
  The plain error standard is a high hurdle for Arenal to
overcome. See United States v. Villarreal-Tamayo, 467
F.3d 630, 633 (7th Cir. 2006). One purpose of setting the
plain error standard so high is to promote the efficiency
of the district court proceedings. See Driver, 242 F.3d
at 770. When launching a plain error challenge to the
validity of a Rule 11 guilty plea, “[a] defendant must . . .
satisfy the judgment of the reviewing court, informed
by the entire record, that the probability of a different
result is sufficient to undermine confidence in the out-
come of the proceeding.” United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004) (internal quotations
omitted). The appellant “must show a reasonable prob-
ability that, but for the error, he would not have en-
tered the plea.” Id.
No. 06-2838                                               5

  Arenal urges us to distinguish Dominguez Benitez as
only applying to those cases where a defendant challenges
the adequacy of the Rule 11(b)(1) colloquy and not to a
challenge of the Rule 11(b)(3) factual basis. Appellant’s
Reply Br. at 4. We decline to do so. The Supreme Court
was clear that it granted certiorari in Dominguez Benitez
for the question of whether “in order to show that a
violation of [Rule] 11 constitutes reversible plain error, a
defendant must demonstrate that he would not have
pleaded guilty if the violation had not occurred.” 542 U.S.
at 80. It answered that very broad question in the affirma-
tive. Id. at 83. At no point in its analysis did the Court
make the distinction (urged on us by Arenal) between
technical or procedural errors in the colloquy and errors
in the factual basis. Id. at 80-83. We find nothing in
Dominguez Benitez to suggest that its holding is more
limited than the opinion on its face purports to be:
that any plain error appeal of a purported violation of
Rule 11 must show prejudice by proving that the defen-
dant would not have pled guilty but for the error.
  In United States v. Darling, we held that the district
court must at least allude to what sources it has used to
find the factual basis for the plea agreement. 766 F.2d
1095, 1100 (7th Cir. 1985). But we also clarified that
the purpose of requiring the source of the factual basis
to be “specifically articulated on the record” was to en-
sure that the record was complete for post-conviction
review. Id. Arenal correctly points out that the district
court did not verbally accept or make any additional
findings of fact based on the information in the PSR
available at sentencing. The record does show that the
accuracy of the facts contained in the PSR was of para-
mount concern to the district court. In fact, when Arenal
indicated at his June 14, 2006 sentencing hearing that
his objections to some content in the PSR had not been
adequately addressed, the district court continued the
6                                              No. 06-2838

proceedings until June 22 so that those disputed issues
could be resolved. Then, on June 22, 2006, the district
judge accepted the contents of the PSR and checked the
box at line 1(A) which reads: “The court adopts the
presentence investigation report without change.”
  The question rightfully before us is not whether the
plea agreement itself contained adequate information to
establish the factual basis for the plea. Rule 11 draws a
distinction between the district court’s role in accepting
a guilty plea and its role in entering judgment on the
guilty plea. Compare FED. R. CRIM. P. 11(b)(1) (governing
the plea colloquy before a court accepts a guilty plea) with
FED. R. CRIM. P. 11(b)(3) (requiring that the factual
basis be established to the satisfaction of the district
court before entering judgment on the plea). We have
previously acknowledged this distinction, holding that
the district court may consider not only the informa-
tion proffered at the plea hearing, but also information
contained in the PSR to establish a factual basis before
entry of judgment and imposition of sentence. Howard v.
United States, 135 F.3d 506, 509 (7th Cir. 1998) (“[T]his
structure indicates that the district court is entitled to
take into account not only the government’s proffer at the
plea hearing, but also information in the presentence
report, when it makes its final determination before
entry of judgment that there is an adequate factual
basis for a guilty plea.”). As we held in Howard, this
structural reading of Rule 11 is consistent with the
guidance of the Advisory Committee’s Notes to the 1966
amendment to the rule (which introduced the language
requiring a factual basis) that: “The Court should satisfy
itself, by inquiry of the defendant or the attorney for the
government, or by examining the presentence report, or
otherwise, that the conduct which the defendant admits
constitutes the offense charged in the indictment or
No. 06-2838                                               7

information or an offense included therein to which the
defendant has pleaded guilty.”
  We note that the PSR contains well over six pages of
details that support the factual basis of a guilty plea to a
charge of conspiracy to distribute large amounts of cocaine
and heroin. Arenal argues that we must confine our
review to the plea agreement and not consider the PSR
because the district court did not rely on the PSR for the
factual basis. But this argument misunderstands our
role as an appellate court. As the Supreme Court has
held in the context of appellate review of plea agree-
ments, “[t]he Advisory Committee intended the effect of
error to be assessed on an existing record, no question, but
it did not mean to limit that record strictly to the plea
proceedings.” Vonn, 535 U.S. at 74.
  Between the information in the PSR and the plea
agreement, the district court had sufficient information
before it prior to the entry of judgment to support
the rule’s requirement that the district court “satisfy
itself . . . that the conduct which the defendant admits
constitutes the offense charged.” Certainly the purposes
of Rule 11 would have been better served if the written
plea agreement had been more explicit about the con-
spiracy underlying Arenal’s heroin and cocaine distribution
ring. They would also have been better served if the
district court had explicitly stated that it was adopting
the facts of the PSR as a supplement to its earlier factual
basis for the guilty plea. But even if we were to consider
either of those deficiencies to be errors, the fact that
Arenal is here on plain error review dooms his argument.
  “[T]he defendant who sat silent at trial has the burden
to show that his ‘substantial rights’ were affected.” Vonn,
535 U.S. at 62-63 (citing Olano, 507 U.S. at 736). Arenal
effectively sat silent before a district judge who had at
his fingertips a mountain of evidence to support the
8                                               No. 06-2838

guilty plea. If Arenal had objected or withdrawn his plea
while he was still before the district court, the judge would
have been alerted to the alleged defect in the plea agree-
ment and would have had the opportunity to correct
those alleged defects, thus avoiding the delay associated
with the appeal process. See id. The court could have
quickly dispelled any uncertainty (if there was any) about
Arenal’s understanding and position. See id. When the
judge checked the box that he adopted the PSR without
change, he could have also explicitly adopted the facts
of the PSR as a supplement to the plea agreement. But
Arenal did not make his objection at that time, waiting
instead until his appeal to make that argument. It is
precisely this type of sandbagging that the heightened
standard of plain error review is well-served to prevent.
See, e.g., United States v. Hernandez-Martinez, 485 F.3d
270, 272 (5th Cir. 2007); In Re Sealed Case, 356 F.3d 313,
319 (D.C. Cir. 2004).
  Arenal does not assert that he is actually innocent. Nor
does he argue that his guilty plea was secured only
through a deficient statement of the facts of his case in
the plea agreement. He does not claim that he was igno-
rant of some fact omitted from the plea agreement, or
that, but for this error, he would not have entered his
guilty plea. Nor does he challenge that the facts contained
in the PSR (and accepted by the district judge at the time
of entry of judgment) are sufficient to establish the
elements of the conspiracy count. In short, he gives us
nothing to support a finding of plain error unless we
were to disregard the standard set out in Dominguez
Benitez. This we are unwilling to do.


B. Sentencing
  We now turn to Arenal’s argument that there was an
insufficient factual foundation for the district court’s
No. 06-2838                                              9

sentence. The district court found that Arenal was a
career offender as defined by § 4B1.1(a) of the Guidelines.
As a career offender, his offense level was increased to
37 and his criminal history category was automatically
VI. U.S.S.G. § 4B1.1(b). The district judge adjusted the
offense level downward for acceptance of responsibility
under Guidelines §§ 3E1.1(a) and 3E1.1(b). The district
judge then sentenced Arenal to 300 months’ imprison-
ment, within the advisory Guidelines range of 262 to 327
months.
  As with his factual basis argument, Arenal focuses on
the text of the plea agreement and the quantity of drugs
involved in the single failed drug deal that led to his
arrest. The quantity of heroin specifically mentioned in
the plea agreement only adds up to 56.7 grams. He ar-
gues that a quantity of heroin less than 100 grams would
place his career offender offense level at 34, which would
then be adjusted down to 31 for accepting responsibility.
The advisory range would then be 188 to 235 months’
imprisonment.
   This argument ignores the fact that Arenal specifically
admitted in his plea agreement that the government
could prove beyond a reasonable doubt that Arenal traf-
ficked in 100 grams or more of heroin. He specifically pled
guilty to conspiracy to distribute more than 100 grams. In
addition to entering a guilty plea for more than 100 grams,
the PSR adopted by the district court also set forth
additional evidence to support a quantity of drugs far
in excess of 100 grams. Arenal affirmatively stated that
he understood that the offense involved at least 100
grams of heroin and he specifically pled guilty to that
crime.
  Although any error here would be analyzed under
plain error standards, there is no sentencing error to
consider. The district court entered judgment on a valid
10                                            No. 06-2838

guilty plea, supported not only by the affirmative admis-
sions of the defendant under oath and in a signed plea
agreement, but also supported by the facts set forth in the
PSR. The district court correctly applied the career
offender provisions of Guidelines §§ 4B1.1(a) and 4B1.1(b),
then properly calculated the advisory guidelines range
and sentenced Arenal within that range.


                    III. CONCLUSION
  For the foregoing reasons, the judgment and sentence
are AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




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