
USCA1 Opinion

	




          March 19, 1996        [Not For Publication]                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-1381                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               NERLY OSMARD SILVESTRE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________               Francisco E. Colon-Ramirez for appellant.               __________________________               Joseph J.  Frattallone,  Assistant United  States  Attorney,               ______________________          with whom  Guillermo Gil,  United  States Attorney,  and Jose  A.                     _____________                                 ________          Quiles, Senior Litigation Attorney, were on brief for appellee.          ______                                 ____________________                                 ____________________               COFFIN, Senior  Circuit Judge.  Appellant, a  citizen of the                       _____________________          Dominican  Republic, who  had been  convicted of  a Puerto  Rican          felony of  possession of a controlled  substance and subsequently          deported, appeals  from his federal conviction  of reentering the          United  States without  permission  of the  Attorney General,  in          violation of 8 U.S.C.   1326(b)(2).               Appellant  served  almost a  year in  prison in  Puerto Rico          after conviction in 1991.   He was deported on  July 7, 1992.   A          month later, he  returned to Puerto  Rico in a yawl,  telling the          court  at sentencing  that he  did not  know he was  forbidden to          return.  He  remained in Puerto Rico, working on a farm, and,  in          April of 1993, married.   He returned  to Santo Domingo in  1994.          His  wife, a  United States  citizen, requested  a visa  for him,          which the American Consulate  in Santo Domingo issued on  May 24,          1994.                In  the  application  he  denied having  been  deported  and          falsely averred  that he  had lived continuously  in Puerto  Rico          from 1986  through 1994.    He did  not  report his  Puerto  Rico          conviction,  but  attached  to  his application  a  good  conduct          certificate issued by the Puerto Rico police.1               On  the  day  after issuance  of  the  visa,  May 25,  1994,          appellant arrived at the  Luis Munoz Marin International Airport,          presented his  visa  and passport,  and,  when a  computer  check                                        ____________________               1  The certificate was issued to one Nerly Osmard-Silvestre.          As the  government points out,  appellant's name is  Nerly Osmard          Silvestre, his true  last name being Silvestre, Osmard  not being          his paternal last name.                                         -2-          revealed an Immigration and Naturalization Service (INS) look-out          for him,  underwent further examination.   When asked  whether he          had  violated any immigration laws, he  was evasive.  Questioning          continued  after   a  computer  check  had   revealed  his  prior          deportation and  after  appellant's rights  had been  read and  a          Waiver  of Rights form signed.   Appellant then  admitted that he          had been deported and that  he had not acknowledged this  fact in          applying for his visa.               After a jury trial, appellant was convicted and sentenced to          a  term  of sixty-three  months'  imprisonment plus  a  period of          supervised release and a monetary assessment.               On appeal,  appellant raises three  issues.  The  first, his          claim that the district  court erred in allowing a  sixteen point          offense  level enhancement  by  reason of  considering his  prior          Puerto  Rican felony  conviction one  for an  "aggravated felony"          under U.S.S.G.   2L1.2(b)(2), was acknowledged by counsel at oral          argument to be foreclosed by our recent decision in United States                                                              _____________          v. Restrepo- Aguilar, 74 F.3d 361 (1st Cir. 1996).             _________________               Appellant's  second claim is that  he was entitled  to a two          point  reduction  in  his   offense  level  because  he  accepted          responsibility by admitting the  facts constituting the  elements          of the crime for  which he was being prosecuted.   His contention          in his brief on appeal is that he was simply presenting the legal          issue whether a visa or "permission from the state department was          equivalent to the Attorney General's consent."  This dresses up a          bit  the theory advanced by trial counsel in opening: "therefore,                                         -3-          by giving the visa, they receive the permission from the Attorney          General  . . . ."  Counsel then seemed to be under the impression          that  only the INS, an  agency within the  Department of Justice,          was involved in the issuance of visas.               In either version this claim has the merit of ingenuity, but          that is its extent.  Preliminarily, we observe that we review for          clear  error only.  See United States v. Iguaran-Palmar, 926 F.2d                              ___ _____________    ______________          7, 9  (1st Cir. 1991).   We begin with the  inconsistency between          appellant's statement at sentencing that he did not know, when he          made  his trip  by yawl,  that there  were any restraints  on his          right   to  reenter  the  United  States.    Not  only  was  this          inconsistent with his surreptitious mode of reentry, but with his          later successful effort to obtain a visa.                Of greater moment is the fact that the  visa was obtained by          misrepresentation.   Appellant's legal theory, even if it were to          be accepted, is nevertheless  predicated upon the lawful issuance          of  a  visa,   not  its  procurement  by  fraud   and  chicanery.          Appellant's  position is  like that  of a  defendant defending  a          larceny  conviction who admitted all of the elements of the crime          such as the taking and the intent to keep, but maintains that the          victim gave  the property  to him.   If, however, the  "gift" had          been procured  through misrepresentation  or coercion,  any claim          that  defendant   would  have   been  deemed  to   have  accepted          responsibility would be bizarre.               Indeed,  the  claim  would  turn  a   vice  into  a  virtue.          Appellant's   conduct  in   obtaining   a  visa   through   false                                         -4-          representation  is within  the spirit  if not  the letter  of the          strictures of  U.S.S.G.    3C1.1 relating  to the  obstruction of          justice.   Application  Note 3(b)  refers to  committing perjury;          3(c) refers to  producing a  false document or  record during  an          official  investigation;  and  3(g)  consists  of  "providing   a          materially  false statement  to  a law  enforcement officer  that          significantly obstructed or impeded the official investigation or          prosecution of the  instant offense."  In other  words, appellant          seeks to  parlay conduct  which might  conceivably support  a two          point increase in his offense level into a two point decrease.                  ________                                       ________               Appellant's third  issue, that  the court erred  in allowing          improper  closing references  by  the prosecutor  to  appellant's          statements as  "lies,"  requires  little  discussion.    Although          appellant  in his brief  asserts that objection  was timely made,          the only effort to  object was made after the  prosecutor's final          remarks,  when counsel said merely,  "I have an  objection to the          closing argument."   Assuming arguendo that the brevity  (two and          one half pages  of transcript)  of the closing  argument and  its          focus  on appellant's misrepresentations sufficiently alerted the          court to the basis of objection, we find no error.               Here  the  prosecutor referred  on  three  occasions to  the          statements  made  in  applying for  the  visa  as  lies or  false          statements.   It is  hard for us  to see any  dereliction of duty          here,  even though  we have  been alert to  prosecutorial excess.          Appellant based his defense on having obtained a  visa.  The fact          that his success was brought about by misrepresentations was both                                         -5-          relevant and undisputed.  There is no hint here of the prosecutor          injecting his own  opinion.  Nor, indeed,  could these references          have added anything to what was already conceded before the jury.               AFFIRMED.                                                -6-
