FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-10815
Plaintiff-Appellee,
v. D.C. No.
CR-04-00387-DAE
KONILETI LATU,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted
September 12, 2006—San Francisco, California
Filed March 19, 2007
Before: Ferdinand F. Fernandez, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson
3273
UNITED STATES v. LATU 3275
COUNSEL
Peter C. Wolff, Jr., Federal Public Defender; Donna M. Gray,
Assistant Federal Public Defender, Honolulu, Hawaii, for the
appellant.
3276 UNITED STATES v. LATU
Edward H. Kubo, Jr., United States Attorney; Marshall H.
Silverberg, Assistant U.S. Attorney, Honolulu, Hawaii, for the
appellee.
OPINION
RAWLINSON, Circuit Judge:
Konileti Latu (Latu), pled guilty to two counts of illegal
possession of a firearm in violation of 18 U.S.C.
§ 922(g)(5)(A) and § 922(g)(5)(B), respectively. Latu
reserved the right to appeal the district court’s denial of three
motions to dismiss. As he did before the district court, Latu
contends that the statute, as applied to him, is unconstitutional
under the Commerce Clause of the United States Constitution.
He also contends that, on the date he possessed the firearm,
he was not “illegally or unlawfully in the United States” under
a proper interpretation of § 922(g)(5)(A). He further argues
that § 922(g)(5)(B) violates the equal protection and substan-
tive due process clauses of the Fifth Amendment.
Because we conclude that § 922(g)(5)(A) is constitutional
and was properly applied in Latu’s case, we affirm Latu’s
conviction on Count One. Due to the government’s confes-
sion of error regarding Latu’s conviction for violating
§ 922(g)(5)(B), we reverse the conviction on Count Two and
remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
Latu entered the United States on October 9, 2002, and was
required to depart on or before April 8, 2003. He remained in
the country beyond this date, and married a United States citi-
zen. On or about July 21, 2003, Latu filed an INS Form I-485
application for adjustment of status. Under the current immi-
gration statutes, Latu’s pending I-485 application for adjust-
UNITED STATES v. LATU 3277
ment of status did not affect his removability. Cf. 8 U.S.C.
§ 1160(d) (prohibiting removal of persons who have applied
for adjustment of status on the basis of their status as seasonal
agricultural workers).
On May 15, 2004, officers of the Maui Police Department
discovered Latu in possession of a handgun, which had been
manufactured in California and transported in interstate com-
merce before reaching Hawaii. At the time the weapon was
found, the INS had not acted on Latu’s application for adjust-
ment of status.
Latu was subsequently charged with two offenses. Count
One charged Latu with possessing a firearm in and affecting
interstate commerce while being an alien who was illegally or
unlawfully in the United States, in violation of 18 U.S.C.
§ 922(g)(5)(A). Count Two charged Latu with possessing the
same firearm in and affecting interstate commerce while
being an alien who had been admitted to the United States
under a non-immigrant visa, in violation of 18 U.S.C.
§ 922(g)(5)(B).
Latu filed three motions to dismiss. In his first motion, Latu
argued that, as applied to him, § 922(g)(5)(A) exceeded con-
gressional authority under the Interstate Commerce Clause of
the United States Constitution. In his second motion to dis-
miss, Latu asserted that, because he had filed a non-frivolous
application for adjustment of status and was allowed to
remain in the United States during the pendency of that appli-
cation, he was not “illegally or unlawfully in the United
States.” In his third motion to dismiss, Latu contended that
§ 922(g)(5)(B) violated the equal protection and substantive
due process clauses of the Fifth Amendment.
In two separate orders, the district court denied Latu’s
motions. Latu subsequently entered conditional pleas of guilty
on both counts, preserving the right to appeal the district
court’s orders denying his motions to dismiss.
3278 UNITED STATES v. LATU
STANDARDS OF REVIEW
We review a district court’s denial of a motion to dismiss
an indictment on constitutional grounds de novo. United
States v. Bueno-Vargas, 383 F.3d 1104, 1106 (9th Cir. 2004).
Questions of statutory interpretation are also reviewed de
novo. Camacho v. Bridgeport Fin. Inc., 430 F.3d 1078, 1079
(9th Cir. 2005).
I.
COMMERCE CLAUSE
Latu contends that § 922(g), as applied to him, represents
an unconstitutional extension of Congress’ power to regulate
interstate commerce as articulated in United States v. Lopez,
514 U.S. 549 (1995) and United States v. Morrison, 529 U.S.
598 (2000). In Lopez, 514 U.S. at 551, the United States
Supreme Court held that the Gun Free School Zones Act of
1990, which “made it a federal offense for any individual
knowingly to possess a firearm at a place that the individual
knows, or has reasonable cause to believe, is a school zone,”
exceeded congressional authority to regulate commerce. In so
doing, the Court determined that “possession of a gun in a
local school zone is in no sense an economic activity that
might, through repetition elsewhere, substantially affect any
sort of interstate commerce.” Id. at 567. Additionally, the
Court reasoned that the defendant had not “recently moved in
interstate commerce, and there [was] no requirement that his
possession of the firearm have any concrete tie to interstate
commerce.” Id.
In Morrison, 529 U.S. at 613, the Supreme Court similarly
held that a statute providing a civil remedy for victims of
gender-motivated violence exceeded congressional authority.
The Court noted that “[g]ender-motivated crimes are not, in
any sense of the phrase, economic activity.” Id. Additionally,
like the act at issue in Lopez, the law at issue “contain[ed] no
UNITED STATES v. LATU 3279
jurisdictional element establishing that the federal cause of
action is in pursuance of Congress’ power to regulate inter-
state commerce.” Id.
[1] Latu contends that § 922(g), like the statutes involved
in Lopez and Morrison, contains an insufficient nexus to inter-
state commerce. However, Latu implicitly concedes the futil-
ity of his argument, by noting that he raised the issue
primarily to preserve it for en banc or Supreme Court review.
Latu’s implicit concession is well-founded, as we have repeat-
edly upheld § 922(g), both facially and as applied, in the face
of Commerce Clause challenges. See, e.g., United States v.
Hanna, 55 F.3d 1456, 1461-62 (9th Cir. 1995), as amended;
United States v. Jones, 231 F.3d 508, 514-15 (9th Cir. 2000);
United States v. Davis, 242 F.3d 1162, 1163 (9th Cir. 2001);
United States v. Rousseau, 257 F.3d 925, 932-33 (9th Cir.
2001). We also recently rejected a challenge similar to Latu’s,
stating that “[t]his court has . . . expressly and repeatedly
rejected defendant’s reading of the law, even after Morrison
and Lopez were decided.” United States v. Younger, 398 F.3d
1179, 1193 (9th Cir. 2005) (citations omitted).
[2] Unlike the statutes at issue in Lopez and Morrison,
§ 922(g) contains a jurisdictional element, specifically requir-
ing that Latu’s possession be “in or affecting commerce.” The
presence of the jurisdictional element satisfies the Commerce
Clause concerns articulated in Lopez. See Hanna, 55 F.3d at
1462 n.2. Indeed, we recently upheld the very statutory sec-
tion originally overruled in Lopez, on the basis that the statute
had since been amended to contain a jurisdictional provision.
See United States v. Dorsey, 418 F.3d 1038, 1046 (9th Cir.
2005).
[3] Latu’s remaining argument, that § 922(g) cannot be jus-
tified as having a substantial effect on interstate commerce, is
equally unavailing. We held in United States v. Stewart, 451
F.3d 1071, 1073, 1078 (9th Cir. 2006), that Congress ratio-
nally concluded that possession of a homemade machine gun
3280 UNITED STATES v. LATU
manufactured intrastate could substantially affect interstate
commerce in machine guns. The de minimis character of each
individual possession is irrelevant where, as in this case, pos-
session is regulated as part of a general regulatory statute that
substantially relates to interstate commerce in firearms. See
id. at 1078.
For the foregoing reasons, we affirm the district court’s
denial of Latu’s motion to dismiss on Commerce Clause
grounds.
II.
LATU’S CONVICTION UNDER § 922(g)(5)(A)
(COUNT ONE)
[4] Latu was found to be in possession of a handgun on
May 15, 2004. To sustain a conviction under § 922(g)(5)(A),
the government must prove that, on that date, Latu was “ille-
gally or unlawfully in the United States.”1 Latu concedes that
he was required to depart the United States on or before April
8, 2003. Although he remained in the country beyond this
date, he married a United States citizen, and on or about July
21, 2003, filed an INS Form I-485 application for adjustment
of status.
1
§ 922(g)(5)(A) reads as follows:
...
(g) It shall be unlawful for any person - -
...
(5) who, being an alien —
(A) is illegally or unlawfully in the United States . . .
...
to ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.
UNITED STATES v. LATU 3281
Latu contends that when he filed a non-frivolous applica-
tion for adjustment of status, and was allowed to remain in the
United States during the pendency of his application, he was
authorized to be in the country and, therefore, not “illegally
or unlawfully in the United States.”
A.
Circuit Court Interpretations
Latu’s position is supported by language in Ninth and
Tenth Circuit cases. In United States v. Bravo-Muzquiz, 412
F.3d 1052, 1054 (9th Cir. 2005), we stated:
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 . . . .
The Bravo-Muzquiz panel also concluded that “[t]he jury
instruction provided by the district court defining the meaning
of an alien illegally or unlawfully in the United States was a
correct statement of the law.” Id. at 1055. The jury instruction
read, in pertinent part:
An alien is in the United States illegally and unlaw-
fully if the alien is in the United States without
authorization. An alien who has filed an application
for legalization of his immigration status is not ille-
gally or unlawfully in the United States while the
application is pending. This is so because an alien is
3282 UNITED STATES v. LATU
authorized to remain in the United States while the
application for legalization is pending.
Id. at 1055 n.1.
In United States v. Hernandez, 913 F.2d 1506, 1513-14
(10th Cir. 1990), the Tenth Circuit held:
Because aliens in the process of applying for legal-
ization of their immigration status may not be
deported, 8 U.S.C. §§ 1160(d) & 1255a(e), they are
not unlawfully in the United States . . . Conse-
quently, to be prosecuted under § 922(g)(5), an alien
seeking amnesty under 8 U.S.C. § 1160 or § 1255
must either receive a firearm before filing an
amnesty application or after such application is
denied.
On the other hand, Latu’s argument is contrary to the
express interpretation of the Fifth Circuit, and a similar ruling
in the Eighth Circuit. In United States v. Elrawy, 448 F.3d
309, 313 (5th Cir. 2006) the defendant argued, as does Latu,
that at the time of his gun purchase, he was not “illegally or
unlawfully” in the United States, because he had filed an
application for adjustment of status. The Fifth Circuit rejected
this contention, concluding:
[A]n alien who has acquired unlawful or illegal sta-
tus (either by overstaying a visa or illegally crossing
the border without admission or parole) cannot relin-
quish that illegal status until his application for
adjustment of status is approved.
Id. at 314 (footnote reference omitted) (emphasis added).
Similarly, in United States v. Bazargan, 992 F.2d 844, 848
(8th Cir. 1993), the Eighth Circuit held that a grant of
UNITED STATES v. LATU 3283
employment authorization did not “authorize” defendant’s
presence in the United States for purposes of § 922(g)(5).
Finally, the language in the Tenth Circuit’s opinion that
seemingly supports Latu’s position has recently been labeled
“dicta” and called into doubt. See United States v. Atandi, 376
F.3d 1186, 1192 & n.12 (10th Cir. 2004).
B.
The Applicability of Bravo-Muzquiz
We decline Latu’s invitation to extend the language of
Bravo-Muzquiz into a holding that Latu’s presence in the
United States is deemed lawful. The language in Bravo-
Muzquiz was based, in part, on the ground that removal pro-
ceedings could not be initiated against an alien whose applica-
tion for adjustment of status was pending. 412 F.3d at 1055.
In fact, the challenged jury instruction upheld by the court
stated, “[a]n alien who has filed an application for legalization
of his immigration status is not illegally or unlawfully in the
United States while the application is pending. This is so
because an alien is authorized to remain in the United States
while the application for legalization is pending.” Id. at 1055
n.1. As the government pointed out, Bravo-Muzquiz relied on
immigration statutes in effect at the time that precluded
removability (known at the time as deportability) when spe-
cific applications were filed. See Garcia, 875 F.2d 257 and
Hernandez, 913 F.2d 1056 cited by Bravo-Muzquiz, 412 F.3d
at 1054. It logically follows that in Bravo-Muzquiz, the panel
did not envision extending lawful status to aliens who, like
Latu, are removable despite having filed an application for
legalization of status. Latu points to no statute that renders his
presence lawful because of his pending application for adjust-
ment of status. Therefore, Bravo-Muzquiz, 412 F.3d at 1054,
Garcia, 875 F.2d 257, and Hernandez, 913 F.2d 1506, are
inapposite.
3284 UNITED STATES v. LATU
C.
Definition of “Illegally or Unlawfully in the United
States”
[5] The Bureau of Alcohol, Tobacco, and Firearms (ATF)
is charged with administering § 922. See United States v.
Lopez-Perera, 438 F.3d 932, 934 (9th Cir. 2006). As the stat-
ute is silent as to the definition of “illegally or unlawfully in
the United States,” we defer to the ATF’s interpretation. See
id. at 933.
The applicable ATF regulation reads, in pertinent part:
...
Alien illegally or unlawfully in the United States.
Aliens who are unlawfully in the United States are
not in valid immigrant, nonimmigrant or parole sta-
tus. The term includes any alien —
...
(b) Who is a nonimmigrant and whose authorized
period of stay has expired or who has violated the
terms of the nonimmigrant category in which he or
she was admitted[.]
[6] 27 C.F.R. § 478.11(b) (emphasis added). This regula-
tion, of course, does not necessarily foreclose Latu’s argu-
ment that although he was unlawfully in the United States, his
presence once again became lawful when he applied for
adjustment of status. However, absent a statute preventing
Latu’s removability upon the filing of his application for
adjustment of status, we can envision no interpretation that
renders Latu’s presence anything other than “illegal[ ] or
unlawful[ ].” As applied to the facts of this case, Latu “is a
nonimmigrant . . . whose authorized period of stay has
UNITED STATES v. LATU 3285
expired” and thus he meets the literal definition of the term
“illegally or unlawfully in the United States.” Id.2
[7] Because we conclude that Latu meets the definition of
an alien “illegally or unlawfully” in the United States as inter-
preted by the administrative agency charged with enforcing
the statute, and because the filing of an application for adjust-
ment of status did not legalize Latu’s presence, we affirm the
district court’s denial of Latu’s motion to dismiss Count One
of the Indictment.
III.
Latu’s Conviction under § 922(g)(5)(B) (Count Two)
[8] The government confesses error regarding Latu’s con-
viction under § 922(g)(5)(B) (Count Two). Therefore, we
need not address Latu’s contentions regarding the constitu-
tionality of that statutory provision. Given the government’s
confession of error, we also decline to discuss the Fifth Cir-
cuit’s interpretation of the interplay between § 922(g)(5)(A)
and § 922(g)(5)(B). See Elrawy, 448 F.3d at 316.3 In view of
the government’s confession of error, we reverse Latu’s con-
2
Because we hold that immigrants like Latu do not become lawfully
present by filing for adjustments of status, we have no occasion to visit
Elrawy’s holding that illegal status continues until the application for
adjustment of status is approved.
3
In Elrawy, the Fifth Circuit pointed out that § 922(g)(5)(A) prohibits
aliens “illegally or unlawfully in the United States” from possessing a fire-
arm, while § 922(g)(5)(B) prohibits aliens legally and lawfully admitted
on nonimmigrant visas from possessing a firearm. See Elrawy, 448 F.3d
at 316. The Fifth Circuit concluded that it is factually impossible for a per-
son to be convicted under both subsections (A) and (B) for the same act
of possession. See id. The Fifth Circuit’s conclusion rests on the assump-
tion that § 922(g)(5)(B) does not apply to immigrants initially admitted on
nonimmigrant visas who subsequently change status (e.g. to lawful citi-
zens or to persons illegally in the United States after overstaying their
visas). As it is not necessary to the disposition of this case, we decline to
adopt either interpretation.
3286 UNITED STATES v. LATU
viction for violating § 922(g)(5)(B) (Count Two). Because we
reverse Latu’s conviction on Count Two, remand for resen-
tencing is appropriate. See United States v. Bennett, 363 F.3d
947, 955 (9th Cir. 2004) (“When a defendant is sentenced on
multiple counts and one of them is later vacated on appeal, the
sentencing package comes unbundled. The district court then
has the authority to put together a new package reflecting its
considered judgment as to the punishment the defendant
deserved for the crimes of which he was still convicted.”)
(citations, alterations and internal quotation marks omitted).
IV.
CONCLUSION
The district court committed no error when it denied Latu’s
motions to dismiss Count One of the Indictment, and his con-
viction on that count is AFFIRMED. Pursuant to the govern-
ment’s confession of error, we REVERSE Latu’s conviction
on Count Two and REMAND for resentencing.
Conviction AFFIRMED as to Count One; Conviction
REVERSED as to Count Two; REMANDED for resentenc-
ing on Count One.