In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3558
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOEL VILLEGAS,
Defendant-Appellant.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 01 CR 885—Joan Humphrey Lefkow, Judge.
____________
ARGUED DECEMBER 12, 2003—DECIDED NOVEMBER 4, 2004
____________
Before COFFEY, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. In November 2001, a grand jury
returned a two-count indictment against Joel Villegas; the
indictment charged Mr. Villegas with one count of pos-
sessing with intent to distribute cocaine in violation of 21
U.S.C. § 841(a) and with one count of carrying a firearm in
relation to a drug trafficking offense in violation of 18 U.S.C.
§ 924(c). Mr. Villegas moved to suppress the evidence on
which the indictment was based. After the district court
denied the motion without an evidentiary hearing, Mr.
Villegas entered an unconditional plea of guilty on both
2 No. 02-3558
counts and was sentenced to 180 months’ imprisonment.
Mr. Villegas now challenges aspects of his guilty plea and
his sentence. We affirm.
I
BACKGROUND
A. Facts
On October 19, 2001, agents from the Drug Enforcement
Administration (“DEA”) went to Mr. Villegas’ apartment to
question him about possible involvement in drug traf-
ficking. The agents did not possess a warrant to search the
premises or a warrant for Mr. Villegas’ arrest. When the
agents approached the door of the apartment, they knocked
and identified themselves as police officers. Mr. Villegas
opened the door. One of the officers asked Mr. Villegas if
they could speak with him. According to the officers, Mr.
1
Villegas agreed to do so. At this point, the parties’ version
of events diverge.
1. Events According to Mr. Villegas
The following events are set forth in Mr. Villegas’ affidavit
in support of his motion to suppress. Mr. Villegas related
that the agents entered his apartment “without invitation.”
1
Mr. Villegas’ affidavit in support of his motion to suppress is
silent with respect to whether (and how) the officers identified
themselves and communicated their desire to speak with Mr.
Villegas. Mr. Villegas offers no conflicting version of events; his
only statement concerns the officers’ physical entry into the apart-
ment, which, he states, was “without invitation.” Mr. Villegas
also states later in his affidavit that he never gave the officers oral
permission to search the premises; again, the record is silent
concerning whether he agreed to speak with the officers.
No. 02-3558 3
R.18, ¶ 2. Upon entering the apartment, one of the agents
“began to conduct a search of the premises” and another
“began to attempt to converse with the defendant, while
another stood close by.” Id. ¶ 3. The agent who was speak-
ing to Mr. Villegas first attempted to communicate in
English and then in Spanish. According to Mr. Villegas, “[t]he
Spanish portion of the conversation was very limited, and
not understood by the defendant. The defendant did not un-
derstand the English portion of the conversation.” Id. ¶ 4. One
of the agents then
presented a document to the defendant and directed the
defendant to place his name on the document, in the
space the agent directed him to. This document was a
consent to search form. The defendant did not read the
document, nor was it read to him, prior to its execution.
The defendant placed a signature on the document
because he was directed to do so by the law enforcement
agent. The defendant did not knowingly and voluntarily
consent to the search of the residence. The defendant
singed [sic] the document because the armed law en-
forcement agent directed him to do so.
Id. ¶ 6. The consent-to-search form provided to Mr. Villegas
was in Spanish; the English equivalent of the form provided
to Mr. Villegas is titled “CONSENT TO SEARCH” and
states:
1. I HAVE BEEN ASKED TO PERMIT SPECIAL
AGENTS OF THE DRUG ENFORCEMENT AD-
MINISTRATION TO SEARCH: (Describe the per-
son, place or things to be searched.)
2. I HAVE NOT BEEN THREATENED, NOR FORCED
IN ANY WAY.
4 No. 02-3558
3. I FREELY CONSENT TO THIS SEARCH.
2
R.25. Mr. Villegas signed this consent form “Pedro Vargas.”
2. Events According to the DEA Agents
The officers’ version of events differs in some respects
from that of Mr. Villegas. After securing Mr. Villegas’ agree-
ment to speak with them, the officers entered Mr. Villegas’
apartment. One of the agents then “inquired if there were
any illegal narcotics or guns or money or anything in the
house.” R.18, App. (Transcript of Proceedings Oct. 25, 2001)
at 5. Mr. Villegas responded that there were not. Another
agent then asked in Spanish if they could search the house
“to make sure that none of that was present in the house.”
Id. Mr. Villegas responded that they “could look around the
apartment.” Id. at 6. At that time, Mr. Villegas also signed a
consent-to-search form written in Spanish. The officers then
conducted a search of the apartment. Among the items the
officers discovered was a pay stub with the name “Joel
Villegas” on it. An officer asked Mr. Villegas if the name on
the stub was his real name, and Mr. Villegas responded that
it was. Then, in Mr. Villegas’ presence, one of the agents
copied the information from the original consent-to-search
form onto a new form. An officer then told Mr. Villegas that
the new form was the same as the old and instructed Mr.
Villegas to sign his correct name to this new form, which
Mr. Villegas did.
During the course of the search, the officers also uncov-
ered nine kilograms of cocaine hidden in a television in the
back bedroom, approximately twenty thousand dollars in
2
Mr. Villegas does not maintain that he does not read and un-
derstand the Spanish language.
No. 02-3558 5
cash and a loaded handgun. Based on the evidence found in
the apartment, the agents placed Mr. Villegas under arrest
and transported him to the DEA’s Chicago field office.
3. Events Subsequent to Mr. Villegas’ Arrest
Upon arrival at the DEA office, Mr. Villegas was given his
Miranda warnings and signed a written waiver (in Spanish)
of his rights. The officers then interviewed Mr. Villegas con-
cerning the search at his apartment. The agents asked Mr.
Villegas if he understood the consent forms he had signed.
According to the investigation report, Mr. Villegas indicated
that he understood and that he was asked to sign a second
form because he had used a “made-up” name on the first.
R.22, Ex.4 ¶ 2. Mr. Villegas also admitted to possessing and
concealing the cocaine that had been found in his apartment.
B. District Court Proceedings
A jury returned a two-count indictment against Mr.
Villegas; the indictment charged Mr. Villegas with posses-
sion with intent to distribute over five kilograms of cocaine,
in violation of 21 U.S.C. § 841(a), and with possession of a
firearm in connection with a drug trafficking offense, in
violation of 18 U.S.C. § 924. Mr. Villegas initially entered a
plea of not guilty and, through counsel, moved to suppress
the evidence obtained during the search of his apartment.
Mr. Villegas also requested an evidentiary hearing on his
motion.
The district court denied Mr. Villegas’ request for a hear-
ing and denied the motion to suppress. In its order dispos-
ing of the motion, the court first recounted the facts as set
forth by Mr. Villegas in his affidavit. The district court then
reviewed the law concerning a consent to search:
6 No. 02-3558
Under well-settled law, a warrantless search violates
the Fourth Amendment unless certain exceptions are
established, among them, consent. See United States v.
Pedroza, 269 F.3d 821, 827 (7th Cir. 2001). In determining
consent to search, the court is to consider the totality of
the circumstances. See Schneckloth v. Bustamonte, 412 U.S.
218, 248-49 (1973) (“Voluntariness is a question of fact
to be determined from all the circumstances”). The
prosecutor “must demonstrate that the subject’s knowl-
edge of a right to refuse consent is a factor to be taken
into account, the prosecution is not required to demon-
strate such knowledge as a prerequisite to establishing
a voluntary consent.” Id. at 248-49. Consent may be im-
plied from conduct as well as verbally. See United States
v. Guiterrez, 92 F.3d 468, 471 (7th Cir. 1996) (defendant
impliedly consented to search of truck when handed
over the keys).
R.26 at 2.
The court then noted that Mr. Villegas had “not assert[ed]
that he did not realize the agents were law enforcement
officers or that the agents forced themselves into the
apartment, rather he carefully chose[ ] the words ‘without
invitation.’ ” Id. Therefore, the court held,
the attestations of defendant, if taken as true, do not
bear indicia of coercion or duress. Even if the defendant
did not understand he was being asked for consent to
search—a proposition on the face of the record highly
improbable—defendant was in a position to observe
what was happening and did nothing to assert lack of
consent.
Id. (internal citations omitted). “Thus,” concluded the court,
“the facts suggest at most that defendant consented because
he did not understand that he could say no. But, as indi-
No. 02-3558 7
cated above, that is insufficient under [the] law to invalidate
the search.” Id. (citing Guiterrez, 92 F.3d at 471). Accord-
ingly, the court denied the motion to suppress and the
request for an evidentiary hearing.
After his motion to suppress was denied, Mr. Villegas
entered an unconditional plea of guilty on both counts of
the indictment. The district court subsequently sentenced
him to 180 months’ imprisonment, the statutory mandatory
minimum for the crimes to which Mr. Villegas pleaded
guilty.
II
DISCUSSION
On appeal, Mr. Villegas raises three issues, all of which
concern the performance of his counsel in the district court.
First, Mr. Villegas claims that he received ineffective assist-
ance of counsel because his attorney failed to advise him
properly concerning his guilty plea. Second, Mr. Villegas
maintains that his counsel was ineffective in failing to cite
persuasive authority to the district court with respect to his
request for an evidentiary hearing on the motion to sup-
press. Finally, Mr. Villegas maintains that his counsel was
ineffective at sentencing because he failed to request a down-
ward departure based on Mr. Villegas’ role in the offense.
We consider each of these issues below.
A.
Mr. Villegas uses the bulk of his brief to set forth the mer-
its of his suppression motion. He claims that if his counsel
had cited pertinent authority to the district court, the court
would have been persuaded to conduct an evidentiary hear-
8 No. 02-3558
ing and to suppress the evidence found in his apartment.
However, as noted by the Government, and admitted by
Mr. Villegas, “an unconditional guilty plea waives all non-
jurisdictional defects occurring prior to the plea, including
Fourth Amendment claims like the one raised here.” United
States v. Elizalde-Adame, 262 F.3d 637, 639 (7th Cir. 2001). Mr.
Villegas nevertheless urges this court to look beyond his
plea because, he claims, he received constitutionally ineffec-
tive assistance of counsel with respect to the entry of his
plea.
1. Standard for Granting Relief
The Supreme Court has held that “a defendant who pleads
guilty upon the advice of counsel ‘may only attack the vol-
untary and intelligent character of the guilty plea by showing
that the advice he received’” was constitutionally ineffec-
tive. Hill v. Lockhart, 474 U.S. 52, 56 (1985). In Lockhart, the
Court explained that “the two-part Strickland v. Washington[,
466 U.S. 668 (1984),] test applies to challenges to guilty pleas
based on ineffective assistance of counsel.” Id. at 58. Thus,
in order to prove a Sixth Amendment violation in the con-
text of a guilty plea, a defendant first has to establish that
his counsel’s actions during plea negotiations fell outside
“the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. Second, a defendant must estab-
lish prejudice as a result of his counsel’s actions. The Court
in Lockhart explained:
The second, or “prejudice,” requirement . . . focuses on
whether counsel’s constitutionally ineffective performance
affected the outcome of the plea process. In other words,
in order to satisfy the “prejudice” requirement, the
defendant must show that there is a reasonable proba-
bility that, but for counsel’s errors, he would not have
No. 02-3558 9
pleaded guilty and would have insisted on going to trial.
Lockhart, 474 U.S. at 59. The prejudice element, for purposes
of an ineffective assistance claim raised in the context of a
guilty plea, often will depend on the performance of counsel
at other stages in the proceedings. The Court noted that “the
‘prejudice’ inquiry will closely resemble the inquiry en-
gaged in by courts reviewing ineffective-assistance chal-
lenges to convictions obtained through a trial.” Id. at 59. The
Court gave the following example:
[W]here the alleged error of counsel is a failure to in-
vestigate or discover potentially exculpatory evidence,
the determination whether the error “prejudiced” the
defendant by causing him to plead guilty rather than go
to trial will depend on the likelihood that discovery of
the evidence would have led counsel to change his
recommendation as to the plea. This assessment, in turn,
will depend in large part on a prediction whether the
evidence likely would have changed the outcome of a
trial.
Id. at 59-60 (citations omitted). With this standard in mind,
we turn to Mr. Villegas’ ineffective assistance claim.
2. Propriety of Considering Ineffective Assistance on
Direct Appeal
Before we evaluate the merits of Mr. Villegas’ claim, how-
ever, we must consider whether Mr. Villegas’ ineffective
assistance of counsel claims should be resolved on this
direct appeal. “[A]ppellate courts generally do not consider
claims of ineffective assistance of counsel on direct appeal
from guilty pleas. This is because often ‘there has been no
opportunity to develop and include in the record evidence
bearing on the merits of the allegations.’ ” United States v.
10 No. 02-3558
Fisher, 772 F.2d 371, 373 (7th Cir. 1985) (quoting United States
v. Stephens, 609 F.2d 230, 234 (5th Cir. 1980) (internal
citations omitted)).
The general rule is applicable here. The record on appeal
does not contain a transcript of the plea hearing, much less
evidence regarding the plea negotiations, the advice Mr.
Villegas received during those negotiations or his counsel’s
decision-making process. It is therefore impossible on the
record before us to determine whether counsel’s perfor-
mance was constitutionally sufficient. However, “[e]ven if
the record is insufficiently developed, we need not remand
to the district court if we determine that the defendant
cannot establish that he or she suffered some prejudice.”
United States v. Asubonteng, 895 F.2d 424, 428-29 (7th Cir.
1990). We consider, therefore, the possible prejudice to Mr.
Villegas.
As noted above, whether a defendant was prejudiced by
the entry of a guilty plea may depend, in large part, on the
merits of other legal claims. In Lockhart, the Court gave the
example of a counsel’s failure to discover exculpatory evi-
dence. In that scenario, the court explained,
the determination whether the error “prejudiced” the
defendant . . . will depend on the likelihood that dis-
covery of the evidence would have led counsel to change
his recommendation as to the plea. This assessment, in
turn, will depend in large part on a prediction whether
the evidence likely would have changed the outcome of
a trial.
Id. at 59. Here, Mr. Villegas’ claim is that, had his attorney
pursued the suppression motion more vigorously, the mo-
tion would have been granted, and he would not have en-
tered an unconditional guilty plea. Thus, the determination
of whether Mr. Villegas suffered prejudice as a result of the
No. 02-3558 11
entry of an unconditional plea rests in large part on the un-
derlying Fourth Amendment claim.
B.
Mr. Villegas argues on appeal that his counsel’s failure to
research adequately the suppression issue resulted in the
district court’s failure to hold an evidentiary hearing and to
grant his motion. The Government contends that, given the
undisputed facts that formed the basis of the district court’s
determination, the district court correctly denied the motion
to suppress on the merits.
1. Evidentiary Hearing
Mr. Villegas’ first claim does not require lengthy discus-
sion. He maintains that his attorney failed to cite appropri-
ate authority to the district court in seeking an evidentiary
hearing on the motion to suppress. We have explained that
“evidentiary hearings on motions to suppress are not granted
as a matter of course but are held only when the defendant
alleges sufficient facts which if proven would justify relief.”
United States v. Coleman, 149 F.3d 674, 677 (7th Cir. 1998).
“Evidentiary hearings are warranted only when the allega-
tions and moving papers are sufficiently definite, specific,
non-conjectural and detailed enough to conclude that a sub-
stantial claim is presented and that there are disputed issues
of material fact which will affect the outcome of the motion.”
Id. (citations omitted). Furthermore, a “district court [i]s
obliged to hold a hearing only if the difference in facts is
material, that is, only if the disputed fact makes a difference
in the outcome.” United States v. Berkowitz, 927 F.2d 1376,
1384 (7th Cir. 1991).
Here, in disposing of Mr. Villegas’ suppression motion,
the court relied upon Mr. Villegas’ version of the events sur-
12 No. 02-3558
rounding the search and other facts that Mr. Villegas did not
contest. See R.26 at 2 (“Defendant proffers the following
facts . . . .”). The court did not resolve any issues of disputed
fact in reaching its decision to deny the motion to suppress.
Because the purpose of an evidentiary hearing is to resolve
material factual disputes among the parties, a hearing is not
required in the absence of such disputes. Consequently, the
district court did not commit error in denying the hearing
on the motion to suppress.
2. Unreasonable Search
Mr. Villegas also claims that the district court erred in
failing to grant his motion to suppress on the undisputed
facts that were before the court. According to Mr. Villegas,
the undisputed facts establish that the agents’ initial entry
into his apartment was illegal because it was “without invi-
tation.” An “explicit verbal consent” or any other form of af-
firmative invitation to enter a dwelling is not necessary to
constitute “consent” for purposes of the Fourth Amendment.
United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir.
2002). “[C]onsent may be manifested in a non-verbal as well
as verbal manner . . . .” United States v. Walls, 225 F.3d 858,
863 (7th Cir. 2000); see United States v. Cotnam, 88 F.3d 487,
495 (7th Cir. 1996) (“A person can, however, consent to the
entry of their home or hotel by officers, and consent need be
neither express or verbal.”).
As noted by the district court, this is not a case in which
the officers pushed Mr. Villegas aside or otherwise asserted
their authority to gain entry to the apartment. The DEA
agents knocked on the door and identified themselves as law
enforcement officers. Mr. Villegas subsequently opened the
door for the officers. The officers asked Mr. Villegas if they
could speak with him; they did not threaten Mr. Villegas in
No. 02-3558 13
any way or brandish their weapons when making the request.
Mr. Villegas assented, and the officers then entered the
apartment. There is “nothing in the sequence of events that
evidences coercion or duress,” Walls, 225 F.3d at 863, or any
objection by Mr. Villegas to the officers’ entry. Under these
circumstances, therefore, we believe that Mr. Villegas
sufficiently manifested consent for the officers to enter his
3
apartment.
Mr. Villegas also maintains that the ensuing search cannot
be justified on the basis of a voluntary consent. The burden
is on the Government to prove, by a preponderance of the
evidence, “that someone who consents to a search does so
freely and voluntarily.” United States v. Saadeh, 61 F.3d 510,
518 (7th Cir. 1995) (citing Schneckloth, 412 U.S. at 222). “We
look to the totality of the circumstances to determine
whether consent arose from coercion and duress, or from
voluntariness.” Id. Among the relevant factors to consider
are:
(1) the person’s age, intelligence, and education, (2)
3
This is not a case, as asserted by Mr. Villegas, controlled by our
holding in United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991).
In Berkowitz, the defendant alleged that the police came to his
home and knocked on the door. Berkowitz opened the door, and
the police immediately entered the house and arrested Berkowitz.
Because “the police . . . enter[ed] a person’s home, without his
consent, before announcing their authority to arrest,” id. at 1387,
the action of opening the door could not be considered consent for
the officers to enter the house and effectuate the arrest.
Here, by contrast, there is no dispute that the agents identified
themselves as law enforcement personnel and announced their
desire to speak to Mr. Villegas prior to their entry into the apart-
ment.
14 No. 02-3558
whether he was advised of his constitutional rights, (3)
how long he was detained before he gave his consent,
(4) whether his consent was immediate, or was prompted
by repeated requests by the authorities, (5) whether any
physical coercion was used, and (6) whether the indi-
vidual was in police custody when he gave his consent.
United States v. Raibley, 243 F.3d 1069, 1075-76 (7th Cir. 2001).
Here, there is no evidence of coercion or duress. Mr.
Villegas does not allege that the officers’ entry and presence
in the apartment was anything except peaceable; the DEA
agents did not use force to gain entry into the apartment
or to maintain their presence. Mr. Villegas was not under
arrest when the agents requested permission to search the
apartment. Additionally, the agents did not threaten to se-
cure a warrant in the absence of Mr. Villegas’ cooperation.
See Saadeh, 61 F.3d at 518. Nor did the agents use repeated
requests to badger Mr. Villegas into consenting to the search.
Raibley, 243 F.3d at 1076; see also Pedrozo, 269 F.3d at 829.
Finally, Mr. Villegas was presented the consent-to-search
form in Spanish, his first language, and the form explicitly
stated that the signer was not “threatened, nor forced in any
4
way” and that he “freely consent[ed]” to the search. Conse-
4
In this case, Mr. Villegas signed two consent-to-search forms in
his apartment. Both consents attest that Mr. Villegas had not been
“threatened or forced” and that his consent was “freely given.”
R.22, Exs.1 & 2; R.25. Furthermore, after Mr. Villegas’ arrest, he
was given his Miranda warnings and signed a waiver (in Spanish)
of his rights. In his interview with officers that followed, Mr.
Villegas stated affirmatively that he understood the forms that he
had signed at his apartment. Finally, there was no illegal evi-
dence found prior to the time that the consent-to-search form was
signed, nor was there any show of force by the DEA agents
(continued...)
No. 02-3558 15
quently, the totality of the circumstances establish that Mr.
5
Villegas’ consent to search the apartment was voluntary.
Thus, we agree with the district court that, even taking the
facts as alleged by Mr. Villegas to be true, his consent to
search his apartment was voluntary.
Because the district court committed no error in denying
the motion to suppress, Mr. Villegas was not prejudiced in
any way by his counsel’s failure to present more vigorously
4
(...continued)
present that might undermine the consent.
5
Mr. Villegas argues that, even if the consent was voluntary, the
evidence discovered was the result of the initial illegal entry and,
therefore, should be suppressed. As we already have explained,
we do not believe that the initial entry was illegal. However, even
if we had reached the opposite conclusion, we believe that the
items discovered after the search were “sufficiently distinguish-
able” from the initial entry as to be “purged of the primary taint.”
Wong Sun v. United States, 371 U.S. 471, 488 (1963) (internal
quotation marks omitted). To determine whether evidence is
sufficiently distinguishable from the illegality, courts look to
three factors: (1) the temporal proximity of the illegal entry and
the search; (2) the presence of intervening factors between the
two events; and (3) the nature of the official misconduct and the
circumstances surrounding that conduct. See Brown v. Illinois, 422
U.S. 590, 603-04 (1975). Here, although the search of the apart-
ment occurred shortly after the initial entry, the other two factors
suggest that the two events should be considered distinct.
“Without doubt, a voluntary consent is a powerful ‘intervening
factor’ that should be weighed in the Brown balance . . . .” United
States v. Liss, 103 F.3d 617, 623 (7th Cir. 1997) (Ripple, J., concur-
ring). Furthermore, if there was official misconduct, it was far
from egregious; there are no allegations that the DEA agents used
threats or a show of force to enter the premises. See, e.g., Brown,
422 U.S. at 605 (considering whether the police conduct was
“calculated to cause surprise, fright, or confusion”).
16 No. 02-3558
his request for an evidentiary hearing or his substantive
motion to suppress. Similarly, he has not suffered any
prejudice as a result of his unconditional plea, and his Sixth
Amendment claim with respect to the proceedings culmi-
nating in his plea must fail.
C.
Mr. Villegas’ final argument is that his counsel was con-
stitutionally ineffective when he failed to seek a reduction
for Mr. Villegas’ minor role in the offense. We find no merit
in this argument. Mr. Villegas pleaded guilty to one count
of violating § 841(a), possessing with intent to distribute
over five kilograms of cocaine. This crime carries a manda-
tory ten-year sentence. 21 U.S.C. § 841(b). Mr. Villegas also
pleaded guilty to using a firearm in relation to a drug traf-
ficking offense in violation of § 924(c), a crime that carries a
mandatory minimum sentence of five years, to be served
consecutively to the sentence for the underlying crime.
18 U.S.C. § 924(c)(1)(A)(i). The district court sentenced Mr.
Villegas to the mandatory minimum length of imprisonment
for each crime. Consequently, even if counsel failed in some
way with respect to representing Mr. Villegas at sentencing,
this failing did not impact Mr. Villegas’ sentence.
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
A true Copy:
No. 02-3558 17
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-4-04