United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 15, 2007
Charles R. Fulbruge III
No. 06-20017 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO RUBIO LUCIO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
No. 4:03-CR-254
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Before DAVIS, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
Gilberto Lucio appeals his conviction of being an alien ille-
gally and unlawfully in the United States in possession of a fire-
arm. He argues that he was not guilty of illegal possession of a
firearm because he was lawfully present in the United States on the
date alleged in the indictment. In the government’s prior appeal,
we held that Lucio was not lawfully present in the United States on
*
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opinion should not be published and is not precedent except under the limited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. 06-20017
-2-
the date alleged in the indictment even though he had an applica-
tion for adjustment of status pending and had been given employment
authorization. United States v. Lucio, 428 F.3d 519, 524-26 (5th
Cir. 2005). Under the law of the case doctrine, the issue whether
Lucio was unlawfully present in the United States was decided in
the previous appeal and may not be reexamined now on remand. See
United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002). Fur-
ther, Lucio has not shown that any of the exceptions to the doc-
trine are applicable. See id.
Lucio argues that 18 U.S.C. § 922(g)(5)(A) is unconstitutional
as applied to him because the statute did not provide him fair
warning that his conduct was unlawful. Because Lucio raised this
argument in an untimely motion for judgment of acquittal in the
district court, that court did not have jurisdiction to consider
the motion. See United States v. Mulderig, 120 F.3d 534, 544 (5th
Cir. 1997). Even if the motion had been timely, Lucio would not
have been entitled to relief, because § 922(g)(5)(A) was suffi-
ciently definite that a person of ordinary intelligence would
understand what conduct it prohibited. See United States v. Pat-
terson, 431 F.3d 832, 836 (5th Cir. 2005).
AFFIRMED.