In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-2300

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FILIMON SANDOVAL-GOMEZ,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 00-CR-92—Barbara B. Crabb, Chief Judge.

____________

ARGUED FEBRUARY 22, 2002—DECIDED JULY 8, 2002

____________

Before POSNER, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge. Filimon Sandoval-Gomez, a Mexican national, was convicted of one count of illegally entering

the United States after being deported without the permission of the Attorney General, following a conviction of an

aggravated felony. See 8 U.S.C. § 1326. Sandoval-Gomez

appeals his conviction and sentence, and we affirm.

I. Background

Following a felony conviction and a deportation hearing,

Sandoval-Gomez was deported to Mexico from Laredo,

Texas. One month later, without first obtaining the permis-
2 No. 01-2300

sion of the Attorney General, Sandoval-Gomez reentered

the United States. While reentering, Sandoval-Gomez twice

presented immigration officials with an unexpired resident

alien card, which the Immigration and Naturalization Service (“INS”) had granted him prior to his felony conviction

and which he had lawfully retained following his deportation. Over two years after his reentry, an officer with the

Sun Prairie, Wisconsin, Police Department stopped Sandoval-Gomez for a traffic violation. Subsequently, a second

officer, named Bertram, arrived on the scene to assist and

telephoned the INS in Laredo, Texas to inquire about Sandoval-Gomez’s immigration status. Because the INS delayed

in responding to the inquiry, Sandoval-Gomez was allowed

to leave. However, shortly thereafter, the INS contacted

officer Bertram and informed him that Sandoval-Gomez

should have been detained. The Sun Prairie police then

located Sandoval-Gomez in the parking lot of a nearby

apartment complex. Pursuant to the INS’s instructions, the

officers took Sandoval-Gomez into custody. While in custody, an INS agent, Ronald Rickey, interviewed SandovalGomez. The interview was conducted mostly in Spanish.

In the district court, Sandoval-Gomez conceded that he

never applied for permission to reenter the United States

following his deportation, however, he asserted an affirmative defense. Under United States v. Anton, 683 F.2d 1011,

1018 (7th Cir. 1982), Sandoval-Gomez contended that he

held an objectively reasonable belief that he had the permission of the Attorney General to return to the United

States due to the fact that he had retained his unexpired

resident alien card. Sandoval-Gomez further claimed that

he told both officer Bertram and agent Rickey about his unexpired resident alien card and his consequent belief that

he reentered the United States with permission. 

On behalf of the government, officer Bertram testified

that at no time did Sandoval-Gomez indicate to him that he

believed he was in the United States legally. Additionally,
No. 01-2300 3

the officer testified that Sandoval-Gomez spoke English

without difficulty. Agent Rickey testified that during his interview with Sandoval-Gomez, Sandoval-Gomez acknowledged that he knew he should not have returned to the

United States, and that he had used his unexpired resident

alien card to reenter following his deportation. The agent

then stated that Sandoval-Gomez never indicated to him

that he believed he had permission to return based upon his

retention of his unexpired resident alien card. Additionally,

the government produced evidence at trial that following

his interview with the agent for the INS, Sandoval-Gomez

voluntarily signed an INS Form I-871, which stated that

Sandoval-Gomez had “illegally reentered the United States

on or about June 1998 at or near Laredo, Texas.” The agent

testified that prior to asking Sandoval-Gomez to sign the

INS Form I-871, he explained the form to Sandoval-Gomez

in Spanish.

During closing arguments, the prosecution stated that

defense counsel was asking the jury to believe that officer

Bertram and agent Rickey lied about whether SandovalGomez told them that he believed he had returned to the

United States legally based upon his retention of his unexpired resident alien card. Further, by means of a comparison between Sandoval-Gomez and the prosecutor’s family in

South Georgia, the prosecutor challenged defense counsel’s

characterization of Sandoval-Gomez as unable to understand the consequences of his deportation due to a lack of

experience and education. The prosecutor explained that

even his family, who were farmers in South Georgia, would

have understood that they were not free to return to the

United States once deported.

Subsequently, the jury found Sandoval-Gomez guilty of

unlawful reentry. At sentencing, Sandoval-Gomez asserted

that he was entitled to a two-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G.
4 No. 01-2300

§ 3E1.1, which provides that “[i]f the defendant clearly

demonstrates acceptance of responsibility for his offense,

decrease the offense level by 2 levels.” Sandoval-Gomez

argued that he had not challenged any of the factual elements of the government’s case at trial, but rather, he

contended that because he believed he had permission to

reenter, he could not have violated 8 U.S.C. § 1326. The

district court declined to grant the two-level downward

adjustment. The district court explained that SandovalGomez “did not qualify for a downward adjustment for acceptance of responsibility because [he] put the government

to its burden at trial by denying the essential factual

elements of guilt.”

Sandoval-Gomez makes three arguments on appeal. First,

he argues that there was insufficient evidence to support

the jury’s guilty verdict. Next, he contends that his sentence

should be vacated based on his entitlement to a two-level

reduction for acceptance of responsibility. Finally, he asserts that during closing arguments, the prosecutor made

improper statements that constituted prosecutorial misconduct and denied him of his right to a fair trial.

II. Analysis

In weighing the sufficiency of the evidence on appeal, this

court will determine “whether after viewing the evidence

in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). At

the time of Sandoval-Gomez’s trial, to obtain a conviction

under 8 U.S.C. § 1326, the government needed to prove that

convicted felon Sandoval-Gomez was previously deported;

that subsequently, he voluntarily reentered the country;

and that he intended to reenter the country unlawfully. See
No. 01-2300 5

1 Since Sandoval-Gomez’s trial, the law in this Circuit has

changed and the government is no longer required to prove that

the defendant intended to reenter the United States unlawfully.

See United States v. Carlos-Colmenares, 253 F.3d 276, 278-80 (7th

Cir. 2001) (overruling Anton). Under either Carlos-Colmenares or

Anton, Sandoval-Gomez’s sufficiency of the evidence challenge

fails.

United States v. Anton, 683 F.2d 1011, 1016 (7th Cir.

1982).1

 Sandoval-Gomez contends that his conviction must

be overturned because the government presented insufficient evidence to rebut his assertion that he reasonably

believed that he reentered the United States with permission.

At trial, both officer Bertram and agent Rickey testified

that Sandoval-Gomez never indicated that he believed he

had permission to reenter the United States based on his

retention of his unexpired resident alien card. Both government witnesses also stated that Sandoval-Gomez spoke

English without difficulty. Moreover, agent Rickey testified

that during his interview with Sandoval-Gomez, SandovalGomez stated that he knew he should not have returned to

the United States following his deportation. Additionally,

Sandoval-Gomez signed the INS Form I-871, which stated

that Sandoval-Gomez “illegally reentered the United States

on or about June 1998.” In light of this abundance of evidence, a rational trier of fact could have easily found in favor of the government and concluded that Sandoval-Gomez

intended to reenter the United States without the Attorney

General’s express consent.

Next, Sandoval-Gomez claims that the district court erred

when it failed to grant him a two-level sentence reduction

for acceptance of responsibility. We review a sentencing

court’s acceptance of responsibility determination for clear

error. United States v. Williams, 202 F.3d 959, 961 (7th Cir.

2000). In Williams, 202 F.3d at 962, we explained that
6 No. 01-2300

“[o]rdinarily a defendant who chooses to go to trial and force

the government to prove his guilt is not eligible to receive

a sentence reduction for acceptance of responsibility.” Here,

Sandoval-Gomez asserted an affirmative defense at trial. As

in Williams, he went to trial and forced the government to

prove his guilt, thereby supporting the district court’s conclusion.

Furthermore, allowing Sandoval-Gomez to receive a twolevel reduction for acceptance of responsibility would defeat

the purpose of the reduction. The purpose of the acceptance

of responsibility reduction “is to reward those who plead

guilty—saving the judiciary and Government from the time,

expense and effort of trial—or who take some other equivalently concrete act, such as pretrial payment of full restitution.” United States v. Bonanno, 146 F.3d 502, 512-13

(7th Cir. 1998) (quotations omitted). While the Sentencing

Guidelines do contemplate situations where the acceptance

of responsibility reduction might apply even though a defendant proceeded to trial, these situations are limited to

instances where the defendant challenged something other

than factual guilt, such as the constitutionality of the statute under which the defendant was being prosecuted. See

id. at 513. Because we do not find any such exception applicable to the case at bar and because Sandoval-Gomez put

the government to its burden of establishing his factual

guilt at trial, we find that the district court did not clearly

err in declining to grant Sandoval-Gomez the two-level

reduction for acceptance of responsibility.

Finally, Sandoval-Gomez argues that reversal is required

because the prosecutor made improper remarks during

closing arguments, thereby preventing him from receiving

a fair trial. Normally, when reviewing improper remarks

made by a prosecutor, this court undertakes a two-step inquiry: first, we determine if the comments, looked at in isolation, were improper. See United States v. Scott, 267 F.3d

729, 740 (7th Cir. 2001). Second, if the comments were im-
No. 01-2300 7

proper, we look at the record as a whole to determine

whether the comments deprived the defendant of a fair

trial. See id. However, because Sandoval-Gomez did not

object to the prosecutor’s closing remarks at trial, we will

review the allegedly improper statements for plain error.

See id. The plain error standard requires that SandovalGomez establish not only that the prosecutor’s remarks

were improper and that they denied him a fair trial, but

also that the prosecutor’s remarks prejudiced him; meaning

that the outcome of the proceedings would have been different absent the remarks. See id.

We will first address the prosecutor’s statement that

defense counsel “is a dignified man and he’s a man of certain . . . classic lawyerly spirit. He doesn’t want to say

Special Agent Rickey is a liar. Never called him a liar on

the stand, but at the heart of it, he’s asking you to believe

that Special Agent Rickey got up on the stand and lied to

you.” This remark responded to Sandoval-Gomez’s claim

that he told agent Rickey about his reasonable belief that

he reentered the country lawfully and that agent Rickey ignored him. Sandoval-Gomez argues that this remark

tainted the jury’s decision-making process because the prosecutor told the jury that its verdict rested on whether the

government’s witnesses were liars, instead of on the elements required for guilt.

In United States v. Vargas, we explained that a similar

statement made by a prosecutor constituted misconduct if

the prosecutor actually told the jury that they had to choose

between two alternatives. See 583 F.2d 380, 387 (7th Cir.

1978) (finding misconduct where prosecutor told jury that

they had to choose between finding that four federal agents

lied on the stand or that the defendant was guilty). Subsequently, in Scott, we clarified Vargas and explained that

such remarks do not constitute misconduct when the prosecutor “stop[s] short of giving the jury [an] ultimatum . . . .”

267 F.3d at 741. In Scott, “the prosecutor did not link
8 No. 01-2300

directly the allegations of perjury with a defense acquittal,

[and therefore,] we [did] not believe that the prosecutor engaged in any impropriety.” Id. In other words, the prosecutor did not tell the jury to acquit only if it found that the

government’s witness lied. See id. Similarly, in the case at

bar, the prosecutor’s comment did not directly link the allegation of perjury with a defense acquittal. The prosecutor

in this case did not say to the jury that in order to acquit

Sandoval-Gomez, it must believe that agent Rickey lied on

the stand. Thus, we conclude that the prosecutor’s remark

was not improper. See id.

Second, Sandoval-Gomez claims that the prosecutor’s

comparison between him and the prosecutor’s family during

his closing argument denied him a fair trial. Specifically,

the prosecutor stated:

[M]y folks in South Georgia are farmers and they could

pretty much understand if you go to a deportation

hearing and they tell you to get out of the country, they

get you from Atlanta to Loredo, march you across, take

your photograph, take your fingerprints, have you sign

a Warrant of Deportation, even my folks from South

Georgia could figure out, son, you have been deported.

You have been deported. You can’t turn around and

come back in this country.

This comparison was made in direct response to defense

counsel’s suggestion that Sandoval-Gomez, a former goat

herder, was not able to understand the consequences of his

deportation, and thus thought that he had permission to

reenter the United States. Even if we assume that the prosecutor’s remark was improper, we simply cannot conclude

that this statement denied Sandoval-Gomez a fair trial.

When examining whether a defendant was denied a fair

trial, we consider: “(1) the nature and seriousness of the

misconduct; (2) the extent to which the comments were

invited by the defense; (3) the extent to which any prejudice
No. 01-2300 9

was ameliorated by the court’s instruction to the jury; (4)

the defense’s opportunity to counter any prejudice; and (5)

the weight of the evidence supporting the conviction.” Id. at

740. While we recognize that there was no instruction given

by the judge with regard to this remark, we believe that the

weight of the evidence against Sandoval-Gomez strongly

supports his conviction and greatly outweighs the other

factors relevant to this analysis. It is undisputed that Sandoval-Gomez was previously convicted of a felony; that he

was deported; and that he voluntarily reentered the country

without the permission of the Attorney General. Finally,

under plain error review, we firmly believe that the outcome of this trial would have been no different absent the

prosecutor’s remark.

III. Conclusion

For the foregoing reasons, we AFFIRM Sandoval-Gomez’s

conviction and sentence.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—7-8-02