                           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 Mexi-
can national, was convicted of one count of illegally entering
the United States after being deported without the permis-
sion 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 Ser-
vice (“INS”) had granted him prior to his felony conviction
and which he had lawfully retained following his deporta-
tion. Over two years after his reentry, an officer with the
Sun Prairie, Wisconsin, Police Department stopped San-
doval-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 San-
doval-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 cus-
tody, 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 reenter the United States
following his deportation, however, he asserted an affirma-
tive 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 per-
mission 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 un-
expired 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 in-
terview with Sandoval-Gomez, Sandoval-Gomez acknowl-
edged 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 Sandoval-
Gomez told them that he believed he had returned to the
United States legally based upon his retention of his unex-
pired resident alien card. Further, by means of a compari-
son between Sandoval-Gomez and the prosecutor’s family in
South Georgia, the prosecutor challenged defense counsel’s
characterization of Sandoval-Gomez as unable to under-
stand 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 adjust-
ment 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 ele-
ments 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 Sandoval-
Gomez “did not qualify for a downward adjustment for ac-
ceptance 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 as-
serts that during closing arguments, the prosecutor made
improper statements that constituted prosecutorial miscon-
duct 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

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 insuffi-
cient evidence to rebut his assertion that he reasonably
believed that he reentered the United States with permis-
sion.
  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 govern-
ment 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 evi-
dence, a rational trier of fact could have easily found in fa-
vor 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


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.
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 con-
clusion.
  Furthermore, allowing Sandoval-Gomez to receive a two-
level 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 equiva-
lently concrete act, such as pretrial payment of full resti-
tution.” 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 de-
fendant proceeded to trial, these situations are limited to
instances where the defendant challenged something other
than factual guilt, such as the constitutionality of the stat-
ute under which the defendant was being prosecuted. See
id. at 513. Because we do not find any such exception ap-
plicable 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 in-
quiry: first, we determine if the comments, looked at in iso-
lation, 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 Sandoval-
Gomez 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 dif-
ferent 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 cer-
tain . . . 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 ig-
nored him. Sandoval-Gomez argues that this remark
tainted the jury’s decision-making process because the pros-
ecutor told the jury that its verdict rested on whether the
government’s witnesses were liars, instead of on the ele-
ments 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). Subse-
quently, in Scott, we clarified Vargas and explained that
such remarks do not constitute misconduct when the prose-
cutor “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 en-
gaged in any impropriety.” Id. In other words, the prosecu-
tor 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 al-
legation 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 pros-
ecutor’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 San-
doval-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 out-
come 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
