United States v. Flores-Sanchez, Efra , 289 F. App'x 955 ( 2008 )

NONPRECEDENTIAL DISPOSITION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 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, Appeal from the United States District
Plantiff-Appellee, Court for the Western District of
Wisconsin.
v.
No. 07-CR-102-S-01
EFRAIN FLORES-SANCHEZ,
Defendant-Appellant. John C. Shabaz,
Judge.
ORDER
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.
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 Flores-
Sanchez, 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.” W IS. 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. Jaimes-
Jaimes, 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. Flores-
Sanchez 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 W IS. 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 A FFIRMED.