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March 19, 1996 [Not For Publication]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-
