Appeal from the United States District Court for the Western District of Wisconsin. No. 00-CR-92--Barbara B. Crabb, Chief Judge.
Before Posner, Kanne, and Rovner, Circuit Judges.
The opinion of the court was delivered by: 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.
Following a felony conviction and a deportation hearing, Sandoval-Gomez was deported to Mexico from Laredo, Texas. One month later, without first obtaining the permission 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 re-entry, 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 Sandoval-Gomez. The interview was conducted mostly in Spanish.
In the district court, Sandoval-Gomez conceded that he never applied for permission to re-enter 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, 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 re-enter 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 Sandoval-Gomez 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 re-entry. 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. § 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 re-enter, 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 Sandoval-Gomez "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.
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 re-enter the country unlawfully. See United States v. Anton, 683 F.2d 1011, 1016 (7th Cir. 1982). *fn1 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 re-enter 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, Sandoval-Gomez 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 ...