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[Not For Publication]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,
______________________
with whom

Guillermo Gil,
_____________

Assistant United

United

States

States Attorney,

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

felony of

possession of a controlled

deported, appeals

United

permission

violation of 8 U.S.C.

almost a

after conviction in 1991.

court

return.

He

wife, a

year in

prison in

in

July 7, 1992.

Rico in a yawl,

did not

Puerto Rico

know he was

He returned

United States

forbidden to

to Santo Domingo in

citizen, requested

telling the

remained in Puerto Rico, working on a farm, and,

which the American Consulate

1994.

of reentering the

Attorney General,

He was deported on

that he

April of 1993, married.

His

Rican

substance and subsequently

of the

returned to Puerto

at sentencing

a Puerto

1326(b)(2).

served

month later, he

convicted of

from his federal conviction

States without

Appellant

had been

a visa

in Santo Domingo issued on

in

1994.

for him,

May 24,

In

the

application

falsely averred

from 1986

that he

through 1994.

conviction,

but

attached

he

denied having

been

had lived continuously

He did

to

not

deported

in Puerto

report his

his application

Puerto

good

and

Rico

Rico

conduct

certificate issued by the Puerto Rico police.1

On

the

day

after issuance

appellant arrived at the

presented his

visa

of

the

visa,

May 25,

1994,

Luis Munoz Marin International Airport,

and passport,

and,

when a

computer

check

____________________

1
As the

The certificate was issued to one Nerly Osmard-Silvestre.

government points out,

Silvestre, his true

appellant's name is

Nerly Osmard

last name being Silvestre, Osmard

his paternal last name.

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not being

revealed an Immigration and Naturalization Service (INS) look-out

for him,

had

underwent further examination.

violated any immigration laws, he

continued

after

deportation and

Waiver

after

computer

was evasive.

had

appellant's rights

of Rights form signed.

had been deported and that

applying for his visa.

check

When asked

revealed

had been

Appellant then

whether he

Questioning

his

prior

read and

admitted that he

he had not acknowledged this

fact in

After a jury trial, appellant was convicted and sentenced to

term

of sixty-three

months'

imprisonment plus

period of

supervised release and a monetary assessment.

On appeal,

appellant raises three

claim that the district

offense

Puerto

under U.S.S.G.

The

court erred in allowing a

level enhancement

Rican felony

issues.

by

reason of

conviction one

first, his

sixteen point

considering his

for an

prior

"aggravated felony"

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

point

reduction

second claim is that

in

his

offense

responsibility by admitting the

he was entitled

level

because

to a two

he

accepted

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."

bit

This dresses up a

the theory advanced by trial counsel in opening: "therefore,

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by giving the visa, they receive the permission from the Attorney

General

that

. . . ."

Counsel then seemed to be under the impression

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.

clear

7, 9

error only.

Preliminarily, we observe that we review for

See United States v. Iguaran-Palmar, 926 F.2d

___ _____________
______________

(1st Cir. 1991).

We begin with the

inconsistency between

appellant's statement at sentencing that he did not know, when he

made

right

his trip

to

by yawl,

reenter

the

that there

United

were any restraints

States.

Not

only

was

on his

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

of

visa,

Appellant's

larceny

not

its

position is

predicated upon the lawful issuance

procurement

by

fraud

like that

of a

and

chicanery.

defendant defending

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

been procured

that

to him.

If, however, the

through misrepresentation

defendant

would

have

been

"gift" had

or coercion,

deemed

to

any claim

have

accepted

responsibility would be bizarre.

Indeed,

Appellant's

the

claim

conduct

in

would

turn

obtaining

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vice

visa

into

through

virtue.

false

representation

strictures of

justice.

materially

the spirit

U.S.S.G.

Application

3(c) refers to

official

is within

3C1.1 relating

Note 3(b)

producing a

investigation;

if not

to the

refers to

3(g)

to

consists

a law

of the

obstruction of

committing perjury;

false document or

and

false statement

the letter

record during

of

"providing

enforcement officer

an

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

improper

closing references

statements as

appellant

"lies,"

in his brief

the only effort to

remarks,

by

requires

one half pages

the court erred

the prosecutor

little

to

in allowing

appellant's

discussion.

asserts that objection

object was made after the

when counsel said merely,

closing argument."

focus

issue, that

"I have an

was timely made,

prosecutor's final

objection to the

Assuming arguendo that the brevity

of transcript)

of the closing

Although

(two and

argument and

its

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

statements.

here,

made

in

It is

even though

applying for

hard for us

we have

the

visa

to see any

been alert to

as

lies or

false

dereliction of duty

prosecutorial excess.

Appellant based his defense on having obtained a

visa.

The fact

that his success was brought about by misrepresentations was both

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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.

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