## In the 

# United States Court of Appeals

For the Seventh Circuit

____________

No. 01-2300

U NITED S TATES OF AMERICA , Plaintiff-Appellee,

v.

F ILIMON S ANDOVAL -G OMEZ , 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 F EBRUARY 22, 2002—D ECIDED J ULY 8, 2002

____________

Before P OSNER , K ANNE , and R OVNER , Circuit Judges

. K

ANNE , Circuit Judge . Filimon Sandoval-Gomez, a Mexican national, was convicted of one count of illegally enteringthe United States after being deported without the permission of the Attorney General, following a conviction of an aggravated felony. See8 U.S.C. § 1326. Sandoval-Gomez appeals his conviction and sentence, and we affirm.

I. Background Following a felony convictionand a deportation hearing, Sandoval-Gomez was deportedto 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 reen tering, Sandoval-Gomez twice presented immigration officials with an unexpired residentalien card, which the Immigration and Naturalization Service (“INS”) had granted him pr ior to his felony convictionand which he had lawfully retained following his deportation. Over two years after his reentry, an officer with theSun Prairie, Wisconsin, Police Department stopped Sandoval-Gomez for a traffic viol ation. Subsequently, a second officer, named Bertram, arrived on the scene to assist andtelephoned 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, theofficers 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, Sandov al-Gomez conceded that he never applied for permission to reenter the United States following his deportation, howe ver, he asserted an affirmative defense. Under United States v. Anton , 683 F.2d 1011, 1018 (7th Cir. 1982), Sandoval-Gomez contended that heheld 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 Englishwithout 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 officerBertram and agent Rickey lied about whether SandovalGomez told them that he belie ved he had returned to theUnited States legally based upon his retention of his unexpired resident alien card. Further, by means of a comparison between Sandoval-Gomez an d the prosecutor’s family in South Georgia, the prosecutor challenged defense counsel’scharacterization 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 sentenci ng, Sandoval-Gomez assertedthat 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-Gomezargued 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 downwardadjustment. 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-levelreduction for acceptance of responsibility. Finally, he asserts that during closing arguments, the prosecutor made improper statements that cons tituted 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. SeeNo. 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 reente r 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 mustbe overturned because the government presented insufficient evidence to rebut his assertion that he reasonablybelieved 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 resi dent alien card. Both government witnesses also stated that Sandoval-Gomez spoke English without difficulty. Moreover, agent Rickey testifiedthat 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 “illegallyreentered the United Stateson 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 th at 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 responsi bility 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 that6 No. 01-2300

“[o]rdinarily a defendant who chooses to go to trial and force the government to prove his guiltis not eligible to receive a sentence reduction for accept ance of responsibility.” Here, Sandoval-Gomez asserted an affirmative defense at trial. As in Williams , he went to trial and forced the government toprove 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 “i s to reward those who plead guilty—saving the judiciary an d 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 acceptanceof responsibility reduction might apply even though a defendant proceeded to trial, th ese situations are limited to instances where the defendant challenged something otherthan 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 co urt 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 clos ing 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; meaningthat the outcome of the proceedings would have been different absent the remarks. See id. We will first address the prosecutor’s statement thatdefense 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 thathe reentered the country lawfully and that agent Rickey ignored him. Sandoval-Gomez argues that this remarktainted the jury’s decision-making process because the prosecutor told the jury that its verdict rested on whether thegovernment’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

. See583 F.2d 380, 387 (7th Cir. 1978) (finding misconduct where prosecutor told jury that they had to choose between finding that four federal agentslied on the stand or that the defendant was guilty). Subsequently, in Scott , we clarified Vargas and explained thatsuch 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 link8 No. 01-2300

directly the allegations of pe rjury 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 atbar, 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 belie ve 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 Lo redo, 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 toreenter 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 prejudiceNo. 01-2300 9

was ameliorated by the court’s instruction to the jury; (4) the defense’s opportunity to co unter 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 th is remark, we believe that the weight of the evidence agai nst Sandoval-Gomez strongly supports his conviction and greatly outweighs the otherfactors 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 A FFIRM 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