                                UNPUBLISHED ORDER
                           Not to be cited per Circuit Rule 53




           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,                  Appeal from the United States District
           Plaintiff-Appellee,             Court for the Eastern District of
                                           Wisconsin
                      v.
                                           No. 04-CR-118
MIGUEL VILLALOBOS-
SANDOVAL,                                  Lynn Adelman,
        Defendant-Appellant.               Judge.


                                      ORDER

       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).
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.
