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

No. 04-2305
UNITED STATES OF AMERICA,
                                                     Plaintiff-Appellee,
                                   v.

RAFAEL REA-BELTRAN,
                                                 Defendant-Appellant.
                           ____________
              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
           No. 03 CR 158—James F. Holderman, Chief Judge.
                           ____________
    ARGUED FEBRUARY 7, 2006—DECIDED AUGUST 10, 2006
                           ____________


  Before BAUER, RIPPLE and WOOD, Circuit Judges.
   RIPPLE, Circuit Judge. Rafael Rea-Beltran, a citizen of
Mexico who previously had been deported from the United
States for battery and drug crimes, was stopped at the
O’Hare International Airport and confessed to immigra-
tion inspectors that he did not have the permission neces-
sary to reenter the United States. Upon being charged with
illegal reentry, see 8 U.S.C. § 1326, and use of a false pass-
port, see 18 U.S.C. § 1546(a), Mr. Rea-Beltran entered into a
plea agreement with the Government, which was presented
to the district court. However, the district court, unsatisfied
that Mr. Rea-Beltran had established a factual basis for his
2                                                 No. 04-2305

guilty plea, rejected it and ordered trial. Mr. Rea-Beltran
then was convicted by a jury of illegal reentry and use of a
false passport; he was sentenced to 120 months’ incarcera-
tion.
  In his appeal to this court, Mr. Rea-Beltran now challenges
the district court’s rejection of his guilty plea, the admission
of his confession and the district court’s refusal to reduce his
sentence for acceptance of responsibility, see U.S.S.G. §
3E1.1. Because we conclude that the district court abused its
discretion in rejecting Mr. Rea-Beltran’s guilty plea, we
vacate the judgment of conviction and remand for further
proceedings consistent with this opinion.


                               I
                      BACKGROUND
A. Facts
  Mr. Rea-Beltran is Mexican citizen. He first immigrated to
the United States in 1982, married and had two children
who reside with their mother in California. He later re-
located to Illinois where, over the course of several years, he
was convicted of aggravated battery and of several drug
crimes. In 1998, he was paroled to the Immigration and
Naturalization Service; the agency ordered him deported
and instructed him not to return without the express
permission of the Attorney General of the United States.
   Mr. Rea-Beltran subsequently attempted to reenter the
United States on February 13, 2003. Shortly after midnight,
he arrived at the O’Hare International Airport in Chicago,
Illinois, on a flight from Mexico. At customs, he presented
a passport bearing the name “Jose Beltran Rea” and in-
formed an immigration inspector that the purpose of his
No. 04-2305                                                 3

visit was to see a sick cousin. The inspector noticed that Mr.
Rea-Beltran’s passport contained an unusual visa stamp and
led him to a separate area for questioning. Continuing the
questioning, the inspector scanned Mr. Rea-Beltran’s
fingerprints into a computer to verify his identity. The
computer eventually revealed that Mr. Rea-Beltran’s first
name was not “Jose” but “Rafael”; on this basis, the inspec-
tor determined that Mr. Rea-Beltran was inadmissible and
summoned an additional immigration official to continue
the investigation.
  After approximately two hours had passed, a second
official, Lori Glud, arrived in the inspection room where Mr.
Rea-Beltran was being interviewed. Inspector Glud con-
ducted an additional computer search and discovered that
Mr. Rea-Beltran was a documented alien who previously
had been deported. Learning this, the inspectors then asked
Mr. Rea-Beltran if he had obtained the permission of the
Attorney General to reenter the United States. He confessed
that he had not.
  Shortly thereafter, Gerardo Guzman, a Spanish-speaking
immigration inspector, arrived to assist the others in tak-
ing a sworn statement from Mr. Rea-Beltran. Before do-
ing so, Inspector Guzman informed Mr. Rea-Beltran for
the first time of his Miranda rights, reading them to him in
Spanish, Mr. Rea-Beltran’s native language. Mr. Rea-Beltran
signed a waiver that explained he understood these rights
and was willing to make a statement without a lawyer
present. With translation from Inspector Guzman, Mr. Rea-
Beltran and Inspector Glud then engaged in a transcribed
exchange in which Mr. Rea-Beltran admitted once again that
he had not sought the Attorney General’s permission to
reenter the United States.
4                                                     No. 04-2305

B. District Court Proceedings
  On February 20, 2003, Mr. Rea-Beltran was arraigned on
charges of illegal reentry, see 8 U.S.C. § 1326,1 and use of a
false passport, see 18 U.S.C. § 1546(a).2 At his arraignment
hearing, he pleaded not guilty to both charges. Less than
one month later, however, Mr. Rea-Beltran retained new
counsel and entered into a plea agreement with the Govern-
ment. The agreement stipulated that Mr. Rea-Beltran would
plead guilty to the charge of illegal reentry, and,
in exchange, the Government would dismiss the false
passport charge3 and recommend at sentencing that, under




1
  Title 18, § 1326 of the United States Code makes it a crime for
an alien to reenter, or attempt to reenter, the United States after
previously having “been denied admission, excluded, deported,
or removed.” 18 U.S.C. § 1326(a)(1). Section 1326 has several
alternative penalties. For simple reentry, under § 1326(a), the
maximum sentence is two years. If the defendant has a prior
felony conviction, the maximum sentence is ten years under
§ 1326(b)(1), and, if that prior conviction was an aggravated
felony as that term is defined in 8 U.S.C. § 1101(a)(43), the
maximum sentence is twenty years under § 1326(b)(2). Here,
Mr. Rea-Beltran was prosecuted under § 1326(b)(2), the harsh-
est penalty provision, because he had two prior qualifying
convictions.
2
  In relevant part, 18 U.S.C. § 1546(a) criminalizes the knowing
possession or use of counterfeit immigration documents, includ-
ing visas or any “other document prescribed by statute
or regulation for entry into or as evidence of authorized stay
or employment in the United States.”
3
  Under the terms of the plea agreement, the Government
retained the right to treat Mr. Rea-Beltran’s use of a false passport
No. 04-2305                                                 5

the 2002 edition of the United States Sentencing Guide-
lines, Mr. Rea-Beltran’s base offense level should be 8.
  At the ensuing change of plea hearing, the district court
engaged Mr. Rea-Beltran in a plea colloquy to confirm that
he was competent to plead guilty, was proceeding freely
and voluntarily, and was knowledgeable about the
charge, the possible penalties he faced and his constitutional
rights. The court also had the Government present a specific
factual basis supporting the § 1326(a) charge, to which Mr.
Rea-Beltran assented. Satisfied with Mr. Rea-Beltran’s
answers, the court accepted the plea agreement and entered
a plea of guilty.
  At the ensuing sentencing hearing, the parties’ plea
agreement began to unravel. Represented by new counsel,
Mr. Rea-Beltran indicated to the court that his previous
guilty plea may not have been made knowingly. To resolve
this matter, the court heard formal testimony from Mr. Rea-
Beltran’s former counsel and from Mr. Rea-Beltran to
determine what the defendant understood when he previ-
ously pleaded guilty. Eventually, the following exchange
occurred between Mr. Rea-Beltran and counsel for the
Government (“AUSA”):
    [AUSA:] [W]hen you reentered the country in February
    of this year, on February 13th, you understood that you
    were violating your agreement not to reenter the
    country or the order not to reenter the country, correct?
    [MR. REA-BELTRAN:] Yes, I understand that, but they
    fooled—


3
  (...continued)
as “relevant conduct” for sentencing purposes. See U.S.S.G. §
1B1.3.
6                                               No. 04-2305

    [AUSA:] That—
    [MR. REA-BELTRAN:] —me with the passport.
    [AUSA:] And, in fact—
      THE COURT: I didn’t hear the last part of that. You
    understood that you were violating the order not to
    reenter the country, but what?
      [MR. REA-BELTRAN] (through interpreter): It had
    already been five years. I remember they told me it was
    five years.
      THE COURT: Who told you five years?
      [MR. REA-BELTRAN:] The judge.
      THE COURT: When you were sentenced, the judge
    told you you couldn’t reenter the country for five years?
      [MR. REA-BELTRAN:] I think so, if I remember
    correctly. I was very bad in my head—I mean, not my
    head, but my ulcer, I was really bad.
      THE COURT: So you didn’t think you were violat-
    ing the order when you came into the country on
    February 13th of—what year was it? This year?
      [AUSA:] Yes, Your Honor, February 13th, 2003.
      THE COURT: So you didn’t think you were violat-
    ing the order when you came into the country on
    February 13th, 2003?
      [MR. REA-BELTRAN:] I didn’t think that at the time.
      THE COURT: Okay. I think what we’re going to have
    to end up doing is trying this case. Perhaps there have
    been some difficulties that have resulted from the past,
    and I agree with you, [defense counsel], this man did
    not understand.
No. 04-2305                                                 7

    ...
      I’m going to vacate the plea agreement, because the
    defendant has now expressed his innocence by saying
    at the time of the offense, he did not know he was
    violating the law, and we’ll set the case for trial on
    September 22.
R.29-1 at 43-46.
  Multiple pre-trial hearings followed and Mr. Rea-Beltran
continued in his attempts to plead guilty. Each time, the
district court refused to accept Mr. Rea-Beltran’s guilty plea
because, in the court’s view, he did not appear to compre-
hend fully the rights that he was attempting to waive. At
each plea opportunity, when pressed on whether he under-
stood that pleading guilty meant that he no longer could file
any pre-trial motions, Mr. Rea-Beltran appeared hesitant
and confused; the court interpreted these responses as a
reluctance to plead guilty.
   Finally, on January 16, 2004, Mr. Rea-Beltran sought to
plead guilty once again, titling his motion, “One Last
Chance.” R.45. At the hearing to decide this motion, the
court asked Mr. Rea-Beltran whether there were any
remaining motions that he wished to file. The court re-
minded Mr. Rea-Beltran that, at a previous hearing, he had
told the court that he desired to file certain motions but was
unsure whether they were appropriately pre-trial or post-
trial. In response, Mr. Rea-Beltran stated that he did not
remember these events. Then, when asked if he remembered
any other part of the hearing, he answered: “The truth is I
don’t remember much.” R.73-1 at 5. At this point, the
district court informed Mr. Rea-Beltran and his counsel that
it was denying the motion to plead guilty. It gave the
following rationale for its decision:
8                                                 No. 04-2305

    [I]t seems to me that Mr. Rea-Beltran, despite his
    commentary, would probably, in my opinion, say that
    whatever proceedings we have today, he won’t remem-
    ber very much or that he didn’t understand.
      And so, consequently, it seems to me that in order to
    ensure that all of his rights are protected and there is no
    argument at a later time that he did not knowingly and
    voluntarily waive his rights, it seems to me we should
    proceed to trial on Tuesday.
Id. at 5-6.
  On the first day of trial, Mr. Rea-Beltran moved to sup-
press his confession in which he admitted to immigration
inspectors that he lacked the necessary permission to reenter
the United States. He argued that his sworn confession,
although rendered after the administration of Miranda
warnings, was nevertheless inadmissible because it came
after inspectors already had induced him to admit, without
being warned, that he had entered the country illegally. The
district court denied the motion to suppress. The court
reasoned that, even lacking warnings, the first statement did
not taint the later, warned admission because the question-
ing that produced the first admission amounted to a
permissible border inspection, not a custodial interrogation.
  At Mr. Rea-Beltran’s sentencing hearing, which took place
after a jury found him guilty of both counts of the indict-
ment, the district court concluded that a two-point enhance-
ment for obstruction of justice was appropriate given Mr.
Rea-Beltran’s false testimony at his suppression hearing.
The district court also denied him a reduction for acceptance
of responsibility, see U.S.S.G. § 3E1.1. In the court’s view, it
was Mr. Rea-Beltran who desired to have a trial and, despite
repeated opportunities to plead guilty, never made the
No. 04-2305                                                        9

showing necessary to waive his rights and admit to the
underlying factual basis for the charge. The court sentenced
Mr. Rea-Beltran to a term of 120 months’ imprisonment,
followed by three years’ supervised release.


                                 II
                         DISCUSSION
  Mr. Rea-Beltran raises three issues in this appeal, but
we need only address his first, threshold contention that the
district court should have allowed him to plead guilty. His
other arguments—that his confession should have been
suppressed and that the court committed sentencing
errors–-need not be addressed in view of our conclusion
that Mr. Rea-Beltran’s guilty plea must be reinstated and his
case remanded for resentencing.4 We shall turn, then, to the
district court’s decision to reject Mr. Rea-Beltran’s guilty
plea.
   It is well-established that a criminal defendant has “no
absolute right to have a guilty plea accepted.” Santobello
v. New York, 404 U.S. 257, 262 (1971). Even when presented
with a constitutionally valid plea attempt, a court retains
a large measure of discretion to decide whether a guilty plea
is appropriate in the circumstances of a particular case. See


4
   Mr. Rea-Beltran also maintains, without opposition from the
Government, that we must order a limited remand for the court
to determine whether it would have imposed the same sen-
tence had it known that the United States Sentencing Guide-
lines were advisory. See United States v. Paladino, 401 F.3d 471, 481
(7th Cir. 2005). We need not consider this matter either because,
upon resentencing, the district court surely will understand the
now-advisory nature of the Guidelines.
10                                                No. 04-2305

North Carolina v. Alford, 400 U.S. 25, 38 n.11 (1970). To guide
the exercise of this discretion, Federal Rule of Criminal
Procedure 11 requires that an extensive plea colloquy take
place between the defendant and the district court before
the entry of a guilty plea. The primary purpose of the
colloquy is to safeguard against the hasty acceptance of
guilty pleas that are not made in a knowing and voluntary
fashion. Thus, the rule instructs the court, in conducting the
colloquy, to make sure that the defendant understands the
trial rights that he is waiving, the nature of the charge, the
possible penalties, his right to appeal and the court’s
discretion to depart from the Sentencing Guidelines. See
Fed. R. Crim. P. 11(b)(1), (2).
   In addition to the “knowing and voluntary” inquiry, Rule
11 requires the district court to satisfy itself that a “factual
basis” exists for the guilty plea. Id. 11(b)(3). This measure is
designed to “protect a defendant who is in the position of
pleading voluntarily with an understanding of the nature of
the charge but without realizing that his conduct does not
actually fall within the charge.” Id. advisory committee’s
note (1966 Amendments); see also United States v. Baymon,
312 F.3d 725, 727 (5th Cir. 2002). Normally, the factual basis
contemplated by Rule 11 is established when the defendant
“ ‘describe[s] the conduct that gave rise to the charge.’ ” Fed.
R. Crim. P. 11 advisory committee’s note (1974 Amend-
ments) (quoting Santabello, 404 U.S. at 261); see also, e.g.,
United States v. Cooper, 942 F.2d 1200, 1207-08 (7th Cir. 1991).
The factual basis need not arise only from the defendant’s
admissions, however; we have held that the court “may find
the factual basis from anything that appears on the record,
which includes the government’s proffer.” United States v.
Musa, 946 F.2d 1297, 1302 (7th Cir. 1991) (internal citation
omitted). Presented with this range of factual material, the
court then must ascertain whether “ ‘the conduct which the
No. 04-2305                                                  11

defendant admits constitutes the offense charged in the
indictment.’ ” McCarthy v. United States, 394 U.S. 459, 467
(1969) (quoting Fed. R. Crim. P. 11 advisory committee’s
note (1966 Amendments)). Put simply, there must be
adequate factual support for each element of the crime to
which the plea is offered. See, e.g., Musa, 946 F.2d at 1302-03.
  Most appeals of Rule 11 decisions arise in the reverse
context of this case. In the more typical scenario, the defen-
dant seeks to withdraw a guilty plea by challenging the
sufficiency of the factual basis established at the plea
colloquy; his hope is that, through such a challenge, he can
erase his guilty plea and try his luck before a jury. See, e.g.,
id., 946 F.2d at 1302-03; Cooper, 942 F.2d at 1207-08. Here, by
contrast, Mr. Rea-Beltran is asking us to reinstate his guilty
plea, contending that he indeed admitted a factual basis
sufficient for the court to accept his plea. From this result,
Mr. Rea-Beltran wishes to salvage his plea agreement with
the Government, which would have dismissed the false
passport charge and recommended a more favorable
sentence.
  Our review of this issue is deferential. In recognition of
the significant discretion that district courts possess in
accepting or rejecting guilty pleas, we reverse only
when that discretion is abused. See United States v. Kelly, 312
F.3d 328, 330 (7th Cir. 2002). As a general matter, we trust
the district court’s assessment of a defendant’s knowledge
and voluntariness because of the court’s ability, unlike our
own, to observe the defendant in person and examine his
demeanor. On the other hand, “a court cannot act arbitrarily
in rejecting a plea.” Id. To facilitate meaningful appellate
review and “foster the sound exercise of judicial discretion,”
we require that courts state on the record “a sound reason”
for rejecting a plea. United States v. Kraus, 137 F.3d 447, 453
12                                                No. 04-2305

(7th Cir. 1998) (internal quotation marks omitted). Failure to
do so requires reversal.
  In view of this standard, Mr. Rea-Beltran contends that the
district court did not articulate adequate reasons for reject-
ing his plea attempts. Our focus is on the July 18, 2003
sentencing hearing in which the court vacated the parties’
plea agreement and withdrew Mr. Rea-Beltran’s guilty plea.
That decision came on the heels of the court’s attempt to
find, consistent with Rule 11(b)(3), a factual basis for the
plea of guilty. In a dialogue with the court, Mr. Rea-Beltran
had indicated that, when he reentered the country on
February 13, 2003, he believed that he had permission to do
so. Understanding this to be an expression of innocence, the
court rejected the plea and ordered trial.
  We believe that the district court, in interpreting Mr. Rea-
Beltran’s statements to be an expression of innocence,
misapprehended the elements of the Government’s burden.
To prove a violation of the illegal reentry statute, 8 U.S.C. §
1326(a), the Government must establish: (1) that the defen-
dant is an alien; (2) that the defendant was deported or
removed in accordance with a valid deportation order; and
(3) that the defendant has reentered the United States
without the permission of the Attorney General. See United
States v. Torres, 383 F.3d 92, 95 (3d Cir. 2004). Although the
defendant must intend to commit the act of reentry to be
guilty of this offense, the belief that he is reentering “with-
out the Attorney General’s express consent is not an element
of section 1326.” United States v. Carlos-Colmenares, 253 F.3d
276, 278 (7th Cir. 2001) (overruling United States v. Anton,
683 F.2d 1011 (7th Cir. 1982)). Thus, even if a defendant
reasonably but mistakenly believes that he is permitted to
reenter the United States, he is guilty of violating § 1326(a).
See id. at 280 (“If [a deported alien] decides to return, he had
No. 04-2305                                                 13

better make sure he has the Attorney General’s express
consent.”).
   Here, the district court’s rejection of Mr. Rea-Beltran’s
guilty plea appears to have rested on the legal misapprehen-
sion that Mr. Rea-Beltran would be innocent of illegal
reentry if he had thought that his reentry was permitted. As
we just have explained, Mr. Rea-Beltran’s mistaken belief
would offer him no defense to the charge of violating §
1326(a). Thus, in light of the court’s misunderstanding of the
law, we have no choice but to find an abuse of discretion in
the court’s refusal to accept Mr. Rea-Beltran’s guilty plea;
“ ‘[a] district court by definition abuses its discretion when
it makes an error of law.’ ” United States v. McMutuary, 217
F.3d 477, 483 (7th Cir. 2000) (alteration in original) (quoting
Koon v. United States, 518 U.S. 81, 100 (1996)).
  The Government contends that the court’s error was
harmless because all Mr. Rea-Beltran stood to gain from
pleading guilty was the prospect of an offense-level reduc-
tion for acceptance of responsibility—a prospect that, in the
Government’s view, was exceedingly slim. See U.S.S.G. §
3E1.1. The Government also maintains that reversal would
be “pointless” because Mr. Rea-Beltran already has received
a fair trial. Appellee’s Br. at 29. These arguments miss the
mark. First, by having his plea rejected, Mr. Rea-Beltran lost
the opportunity to benefit from his plea agreement with the
Government in which the Government promised to drop the
false passport charge in exchange for Mr. Rea-Beltran’s plea
of guilty to illegal reentry. Forced to proceed to trial, Mr.
Rea-Beltran instead was convicted of both charges. Al-
though receiving two convictions rather than one may have
had no ultimate impact on Mr. Rea-Beltran’s sentence, the
collateral consequences flowing from an additional convic-
tion have been recognized as prejudicial. See United States v.
14                                               No. 04-2305

Maddox, 48 F.3d 555, 560 (D.C. Cir. 1995); United States v.
Delegal, 678 F.2d 47, 52 (7th Cir. 1982). “For example, the
presence of two convictions on the record may delay the
defendant’s eligibility for parole or result in an increased
sentence under a recidivist statute for a future offense.
Moreover, the second conviction may be used to impeach
the defendant’s credibility and certainly carries the societal
stigma accompanying any criminal conviction.” Ball v.
United States, 470 U.S. 856, 865 (1985).
  The Government’s other harmless error argument is
equally meritless. By contending that Mr. Rea-Beltran
suffered no prejudice because he received a fair trial, the
Government ignores the fact that Mr. Rea-Beltran is not
complaining that his trial was unfair. Rather, his com-
plaint is that he should not have received a trial at all
and instead been permitted to plead guilty. Having incurred
an additional conviction because his plea attempts were
frustrated, the verdict resulting from the jury trial cannot
stand, regardless of how fairly the proceedings were
conducted.


                        Conclusion
  For the foregoing reasons, we vacate Mr. Rea-Beltran’s
conviction and remand with instructions to permit Mr. Rea-
Beltran to offer a guilty plea on the terms originally agreed
to by the Government. Upon satisfactory completion of the
plea proceedings, the district court shall resentence Mr. Rea-
Beltran.
                                  REVERSED and REMANDED
No. 04-2305                                            15

A true Copy:
       Teste:

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




                USCA-02-C-0072—8-10-06
