United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 1, 2005
Charles R. Fulbruge III
Clerk
No. 05-10284
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MALABA G. MULUMBA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-250-ALL-P
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Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Malaba G. Mulumba appeals his jury conviction and sentence
for making a false claim of United States citizenship in
violation of 18 U.S.C. § 911. Mulumba does not appeal his jury
conviction for possession of a firearm by an illegal alien in
violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2), and, thus,
this conviction is not affected by the disposition of this
appeal.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-10284
-2-
Mulumba contends that the Government failed to prove beyond
a reasonable doubt that he represented himself to be a United
States citizen. Because Mulumba did not move for a judgment of
acquittal in the district court, this court’s review of the
sufficiency of the evidence “is limited to determining whether
there was a manifest miscarriage of justice, that is, whether the
record is devoid of evidence pointing to guilt.” United States
v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001) (internal quotation
marks and citation omitted).
A conviction for making a false claim of United States
citizenship requires proof beyond a reasonable doubt that the
defendant “falsely and willfully represent[ed] himself to be a
citizen of the United States.” 18 U.S.C. § 911. The sole
evidence presented by the Government to establish a violation of
18 U.S.C. § 911 was an I-9 Employment Eligibility Verification
Form wherein Mulumba checked a box certifying that he was “[a]
citizen or national of the United States.” (emphasis added).
Because 18 U.S.C. § 911 criminalizes only false representations
of United States citizenship and a person can be a national of
the United States and yet not a citizen, the record is devoid of
evidence that Mulumba falsely represented himself to be a citizen
of the United States. Therefore, Mulumba’s conviction under 18
U.S.C. § 911 is REVERSED. Further, because Mulumba’s 18 U.S.C.
§ 911 conviction affected the sentence imposed in connection with
his 18 U.S.C. § 922(g)(5) conviction, his sentence is VACATED and
No. 05-10284
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the case is REMANDED for resentencing on the remaining count of
conviction.
18 U.S.C. § 911 CONVICTION REVERSED; SENTENCE VACATED;
REMANDED FOR RESENTENCING ON THE REMAINING COUNT OF
CONVICTION