Summary
In United States v. Garcia, 875 F.2d 257, 257-58 (9th Cir.1989), we held that an alien who had not been legally admitted to enter the United States and who had not applied for legal status at the time he possessed a firearm was "illegally or unlawfully in the United States" for purposes of section 922(g)(5). Implicitly this recognizes that had Garcia applied for legal status prior to his possession of the firearm he would not have been at that time an alien illegally or unlawfully in the United States....
Summary of this case from United States v. LatuOpinion
No. 88-3198.
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a).
Decided May 23, 1989.
Victor H. Lara, Schwab, Kurtz Hurley, Yakima, Wash., for defendant-appellant.
Robert S. Linnell, Asst. U.S. Atty., Yakima, Wash., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Washington.
Before ALARCON, FERGUSON and THOMPSON, Circuit Judges.
Jose Chavez Garcia ("Garcia") appeals his conviction, following a jury trial, under 18 U.S.C. § 922(g)(5), which makes it unlawful for "an alien . . . illegally or unlawfully in the United States . . . to possess . . . any firearm."
On July 6, 1987, Garcia purchased a firearm in Wenatchee, Washington. On October 20, 1987, he was indicted under section 922. Garcia, who by his own admission had illegally entered the United States sometime prior to July 6, 1987, did not apply for legal status until October 22, 1987.
Garcia contends that the district court erred in refusing to give Garcia's proposed jury instructions, which read as follows:
1. An alien present in the United States with the knowledge or permission of the Immigration Naturalization service is residing in the United States under "color of law."
2. An alien present in the United States "under color of law" is residing in the United States legally and lawfully.
These instructions go well beyond the plain language of the statute under which Garcia was convicted. See 18 U.S.C. § 922(g)(5). Cf. Sudomir v. McMahon, 767 F.2d 1456 (9th Cir. 1985) (discussing scope of welfare benefits provision expressly applicable to aliens "permanently residing in the United States under color of law").
At the time Garcia possessed the firearm he had not applied for legal status, and had admittedly entered the country illegally. Under these circumstances, he was "illegally or unlawfully in the United States" for the purposes of this section. The district court committed no error.
AFFIRMED.