PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4363
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ABDULADHIM AHMED AL SABAHI,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:11-cr-00056-D-1)
Argued: March 22, 2013 Decided: June 12, 2013
Before SHEDD and FLOYD, Circuit Judges, and Joseph R. GOODWIN,
United States District Judge for the Southern District of West
Virginia, sitting by designation.
Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Judge Shedd and Judge Goodwin joined.
ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North
Carolina, for Appellant. Joshua L. Rogers, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
FLOYD, Circuit Judge:
On October 25, 2011, Appellant Abduladhim Ahmed Al Sabahi
was charged in a four-count superseding indictment with
knowingly possessing firearms while illegally and unlawfully
present in the United States, in violation of 18 U.S.C.
§§ 922(g)(5)(A) and 924(a)(2). A jury found Al Sabahi guilty of
three counts. Al Sabahi appealed, alleging that he was not
illegally or unlawfully present in the United States, that the
district court committed a Confrontation Clause violation, and
that the evidence was insufficient to support his conviction.
We now affirm.
I.
A.
On November 12, 1997, Al Sabahi—a native of Yemen—entered
the United States using a visa that expired in May 1998. Al
Sabahi remained in the United States after his visa expired
without obtaining authorization to do so. On January 10, 2003,
Al Sabahi voluntarily registered with the National Security
Entry-Exit Registration System (NSEERS), a War on Terror-related
program pursuant to which non-immigrant men of certain ages and
from certain countries were fingerprinted, photographed, and
interviewed. Immigrations and Customs Enforcement then placed
Al Sabahi in removal proceedings because he had overstayed his
2
visa. In August 2003, Al Sabahi married a United States
citizen, and he thereafter filed an I-485 application to
legalize his presence in the United States.
At the time of the events relevant to this case, Al Sabahi
worked at Scooters In and Out convenience store in Littleton,
North Carolina. On February 15, 2007, a Pepsi employee named
Jonathan Mosley came to Scooters to remove a Pepsi cooler. Al
Sabahi placed a .9-millimeter pistol on the store’s counter
during Mosley’s visit. According to Mosley, Al Sabahi told him
that he could not take the cooler. Mosley then left the store
and called his supervisor, Donald Ferguson. When Ferguson
arrived, he saw the gun and realized that Al Sabahi was not
going to release the cooler. Ferguson then called Mike Suggs,
the chief of the Littleton Police Department. Suggs did not see
the gun when he arrived, but he had seen it on prior occasions.
Suggs told Al Sabahi to keep the gun under the store’s counter.
On March 18, 2007, Suggs and other officers were conducting
a traffic checkpoint. Officer Shane Jenkins stopped Al Sabahi,
who was driving a gold Toyota Camry. Although Ali Saleh—the
owner of Scooters—owned the car, Al Sabahi frequently borrowed
it. Suggs looked down at the car’s floorboard and saw part of a
pistol grip. He asked Jenkins to remove Al Sabahi from the car
and then retrieved a .9-millimeter pistol from the vehicle.
Suggs was familiar with the pistol and was aware that Al Sabahi
3
sometimes carried it in the vehicle. Suggs instructed Jenkins
to charge Al Sabahi with carrying a concealed weapon.
On May 9, 2007, Ronald Lee came to Scooters to sell a .380-
caliber handgun to Saleh. Saleh was not present at the store,
so Al Sabahi took cash from the register and purchased the
firearm. Lee prepared a receipt in Al Sabahi’s name. When
Saleh found out that Al Sabahi had bought the gun, he contacted
Lee and told him that Al Sabahi was an illegal alien and should
not have purchased a firearm. Lee later met with Saleh and
prepared a new receipt that named Saleh as the purchaser.
Saleh testified that, on September 7, 2007, he went home
and found Al Sabahi drunk, carrying the .380-caliber handgun,
and claiming that it belonged to him. Al Sabahi then left with
the firearm, and Saleh reported the theft to the police.
Jenkins later retrieved the gun from one of Saleh’s relatives.
B.
On May 24, 2011, Al Sabahi was charged in a two-count
indictment with violating 18 U.S.C. §§ 922(g)(5)(A) and
924(a)(2). These provisions make it a crime for “an alien . . .
illegally or unlawfully in the United States” to knowingly
“possess in or affecting commerce, any firearm or ammunition.”
18 U.S.C. § 922(g)(5)(A); see also id. § 924(a)(2) (subjecting
individuals who knowingly violate § 922(g)(5)(A) to a fine and
4
up to ten years’ imprisonment). Al Sabahi moved to dismiss the
indictment on August 12, 2011, arguing that he was not illegally
or unlawfully in the United States because he registered with
NSEERS and had filed an I-485 application for an adjustment of
his status. Al Sabahi also contended that only an immigration
judge had jurisdiction to determine whether he was legally
present in the United States because he had been placed in
removal proceedings. The district court denied Al Sabahi’s
motion to dismiss.
On October 25, 2011, Al Sabahi was charged once again in a
four-count superseding indictment with violating 18 U.S.C.
§§ 922(g)(5)(A) and 924(a)(2). Count One concerned the February
15, 2007, incident with the .9-millimeter pistol that took place
at Scooters; Count 2 related to the March 18, 2007, incident
with the same gun that occurred during the traffic stop; Count
Three involved the May 9, 2007, incident in which Al Sabahi
purchased the .380-caliber handgun; and Count Four concerned the
September 7, 2007, incident involving the same gun, which took
place at Saleh’s residence.
Al Sabahi’s trial took place from January 23, 2012, to
January 25, 2012. At trial, Al Sabahi attempted to introduce a
911 telephone call report concerning his encounter with the
Pepsi employee. The district court held that the document did
not fall within any exceptions to the rule against hearsay and
5
that, even if it did, the court would exclude it under Federal
Rule of Evidence 403. A jury found Al Sabahi guilty on Counts
One, Two, and Three and not guilty on Count Four. The district
court sentenced Al Sabahi to twenty-seven months’ imprisonment
on each count, to be served concurrently. Al Sabahi filed a
timely appeal, and we have jurisdiction pursuant to 28 U.S.C.
§ 1291.
II.
We turn first to Al Sabahi’s argument that the district
court should not have found that he was illegally or unlawfully
present in the United States. We review de novo the district
court’s ruling on Al Sabahi’s motion to dismiss the indictment.
United States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002).
A.
Federal regulations recognize that “[a]lien[s] illegally or
unlawfully in the United States” include “nonimmigrant[s] . . .
whose authorized period of stay has expired.” 27 C.F.R.
§ 478.11. As a general matter,
an alien who is only permitted to remain in the United
States for the duration of his or her status . . .
becomes “illegally or unlawfully in the United States”
for purposes of § 922(g)(5)(A) upon commission of a
status violation. We look to the date of the status
violation to determine when the alien’s presence
6
became unauthorized, not to when that violation is
recognized by official decree.
United States v. Atandi, 376 F.3d 1186, 1188 (10th Cir. 2004)
(footnote omitted); see also United States v. Latu, 479 F.3d
1153, 1159 (9th Cir. 2007); United States v. Bazargan, 992 F.2d
844, 847-48 (8th Cir. 1993). Furthermore, “an alien who has
acquired unlawful or illegal status (either by overstaying a
visa or illegally crossing the border without admission or
parole) cannot relinquish that illegal status until his
application for adjustment of status is approved.” United
States v. Elrawy, 448 F.3d 309, 314 (5th Cir. 2006). Al Sabahi
remained in the United States after his visa expired, and his
request for adjustment of status has not been approved.
Therefore, under these general principles, Al Sabahi was
illegally or unlawfully in the United States at the time he
possessed the firearms in question.
B.
Despite these general rules, Al Sabahi makes two arguments
that he was not illegally or unlawfully present in the United
States under 18 U.S.C. § 922(g)(5)(A). First, he contends that
he was “in effect ‘paroled’” via 8 U.S.C. § 1182(d) when he
registered through NSEERS. Pursuant to 27 C.F.R. § 478.11,
aliens are not illegally or unlawfully in the United States if
7
they are in valid parole status. The U.S. Code provides that
the Attorney General may parole aliens into the United States
temporarily for “urgent humanitarian reasons or significant
public benefit.” 8 U.S.C. § 1182(d)(5)(A). In this case,
however, the Attorney General did not take any action on Al
Sabahi’s behalf, and Al Sabahi does not identify any “urgent
humanitarian reasons or significant public benefit” that
warranted his parole. Furthermore, “parole is granted only to
aliens who have not yet entered the United States,” United
States v. Anaya-Acosta, 629 F.3d 1091, 1094 (9th Cir. 2011) (per
curiam), and Al Sabahi was already present in the United States
when he complied with the NSEERS program. Therefore, Al
Sabahi’s argument that he was not illegally or unlawfully
present in the United States because he was “in effect
‘paroled’” fails.
Second, Al Sabahi argues that he was placed in “‘limbo’ or
‘quasi’ immigration status” when he filed his I-485 application
for adjustment of his status. In support of this argument, Al
Sabahi cites the Tenth Circuit’s decision in United States v.
Hernandez, 913 F.2d 1506 (10th Cir. 1990). In Hernandez, the
Tenth Circuit held that the district court properly convicted
the defendant under § 922(g)(5) because he purchased the gun in
question before filing an amnesty application. Id. at 1514.
The court explained in dicta that, “[h]ad [the defendant]
8
received the pistol after filing his amnesty application, he
would not have been illegally in the United States for purposes
of § 922(g)(5).” Id. Relying on this language, Al Sabahi
contends that he was not illegally present in the United States
when he possessed the firearms at issue because he had filed his
I-485 application. However, although some courts have favorably
cited this dicta, see, e.g., United States v. Salman, 266 F.
Supp. 2d 1367, 1374 (M.D. Fla. 2003), rev’d on other grounds,
378 F.3d 1266 (11th Cir. 2004), this Court has held “that the
mere filing of an application for adjustment of status and
receipt of an employment authorization card does not legalize
the alien’s presence in the United States, and it is still a
crime, under § 922(g)(5), for that individual to possess a
firearm,” United States v. Cavillo-Rojas, Nos. 10-4033, 10-
4061, 10-4062, 10-4067, 10-4072, 2013 WL 563885, at *10 (4th
Cir. Feb. 15, 2013). Furthermore, many other courts have
declined to interpret Hernandez to allow the result that Al
Sabahi seeks, see Latu, 479 F.3d at 1157-58; Elrawy, 448 F.3d at
313-14 & n.6; Atandi, 376 F.3d at 1192 & n.12, and the Tenth
Circuit itself has called Hernandez into doubt, see United
States v. Ochoa-Colchado, 521 F.3d 1292, 1294-95 (10th Cir.
2008) (“[T]he greater weight of authority is of the view that
the filing of an application for adjustment of status before an
alien’s possession of firearms does not alter the alien’s
9
status.”). Because Al Sabahi’s argument that he was not
illegally in the United States due to his I-485 application
lacks support, the pendency of this application does not alter
our conclusion that Al Sabahi was illegally or unlawfully in the
United States when he possessed the firearms in question. *
C.
Next, Al Sabahi contends that the district court erred in
allowing this case to proceed without waiting for an immigration
judge to decide whether Al Sabahi was removable. As his only
support for this proposition, Al Sabahi cites 8 U.S.C.
§ 1229a(a)(1), which states that “[a]n immigration judge shall
conduct proceedings for deciding the inadmissibility or
deportability of an alien.” However, this provision does not
divest district courts of the ability to decide whether aliens
*
Al Sabahi also points to a 1999 Immigration and
Naturalization Service memorandum to argue that his I-485
application affects whether he was illegally or unlawfully
present in the United States. See Robert L. Bach, Executive
Associate Commissioner, INS, Accepting Applications for
Adjustment of Status Under Section 245(i) of the Immigration and
Nationality Act (April 14, 1999), available at
http://www.section245i.com/info/ins-04-14-99.html. Specifically,
Al Sabahi contends that “the period of authorized stay continues
during the period in which the application is denied and renewed
in removal proceedings.” However, this memorandum explicitly
states that the period of authorized stay applies only with
respect to an unrelated provision of the Immigration and
Nationality Act. See id. The memorandum consequently has no
bearing on the case at hand.
10
are illegally or unlawfully present in the United States for the
purposes of 18 U.S.C. § 922(g)(5)(A). See United States v.
Bravo-Muzquiz, 412 F.3d 1052 (9th Cir. 2005) (considering
whether the defendant was unlawfully present in the United
States under § 922(g)(5)(A) even though his removal proceedings
remained pending), superseded by statute on other grounds as
recognized in Latu, 479 F.3d 1153. Al Sabahi’s argument that
the district court erred in moving forward with this case before
an immigration judge determined his removability therefore lacks
merit.
III.
Al Sabahi next contends that the district court violated
his Sixth Amendment confrontation right when it did not allow
him to question government witness Thomas D. O’Connell about his
pending I-485 application and participation in NSEERS. However,
Al Sabahi does not clarify exactly how the district court
violated his confrontation right. The district court allowed Al
Sabahi’s attorney to cross-examine O’Connell. See Davis v.
Alaska, 415 U.S. 308, 316 (1974) (“Our cases construing the
([C]onfrontation) [C]lause hold that a primary interest secured
by it is the right of cross-examination.” (quoting Douglas v.
Alabama, 380 U.S. 415, 418 (1965)) (internal quotation marks
omitted)). When Al Sabahi’s attorney sought to ask O’Connell
11
about Al Sabahi’s I-485 application and NSEERS registration, the
court declined to permit this questioning on the basis that it
was irrelevant. Because Al Sabahi has given no real reason why
excluding this testimony violated his confrontation right and
because he was permitted to cross-examine O’Connell, we decline
to find any Sixth Amendment violation.
IV.
Finally, Al Sabahi contends that the evidence was
insufficient to support the jury’s verdict in this case. “We
must uphold a jury verdict if there is substantial evidence,
viewed in the light most favorable to the [g]overnment, to
support it.” United States v. Cardwell, 433 F.3d 378, 390 (4th
Cir. 2005). “Substantial evidence is that evidence which a
‘reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.’” Id. (quoting United States v. Burgos, 94
F.3d 849, 862 (4th Cir. 1996) (en banc)). For the reasons
below, we find that the evidence was sufficient to support the
verdict in this case.
18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2) criminalize the
knowing possession of firearms or ammunition. Possession may be
actual or constructive. See United States v. Scott, 424 F.3d
431, 435 (4th Cir. 2005). To establish actual possession, the
12
government must prove that Al Sabahi “voluntarily and
intentionally had physical possession of the firearm.” Id. By
contrast, the government can prove constructive possession by
showing that Al Sabahi “intentionally exercised dominion and
control over the firearm, or had the power and the intention to
exercise dominion and control over the firearm.” Id. at 436.
The government can establish constructive possession by direct
or circumstantial evidence. Burgos, 94 F.3d at 873.
With respect to Count One, the government proved that Al
Sabahi actually possessed a .9-millimeter pistol on February 15,
2007, when Pepsi employee Jonathan Mosley attempted to remove a
cooler from Scooters. Mosley and his supervisor, Donald
Ferguson, both testified that they saw the gun on the counter,
and Mosley identified Al Sabahi as the cashier working that day.
Police Chief Mike Suggs confirmed that Al Sabahi had been
accused of brandishing the pistol and stated that he had seen
the weapon on prior occasions. Despite this testimony, Al
Sabahi claims that the evidence was insufficient in light of a
911 report that the district court excluded under the rule
against hearsay and Federal Rule of Evidence 403. Al Sabahi
contends that the 911 report discredits Mosley’s testimony
because it indicates that Al Sabahi made the 911 call, which he
would not have done if he possessed a gun. However, “where the
evidence supports differing reasonable interpretations, the jury
13
will decide which interpretation to accept.” United States v.
Moye, 454 F.3d 390, 394 (4th Cir. 2006). In light of the
overwhelming evidence that Al Sabahi possessed the .9-millimeter
pistol during his confrontation with Mosley, the jury’s decision
to accept the government’s interpretation of the evidence was
certainly reasonable, even assuming for the sake of argument
that the district court erred in excluding the 911 report.
Therefore, considered in the light most favorable to the
government, the evidence was sufficient to prove that Al Sabahi
possessed the firearm in question on February 15, 2007.
Regarding Count Two, the government proved that Al Sabahi
constructively possessed a .9-millimeter pistol while he drove a
gold Toyota Camry on March 18, 2007. Suggs testified that he
knew Al Sabahi sometimes carried the gun while he drove and that
he had warned him not to do so. During a traffic stop, Suggs
looked inside the vehicle and saw a pistol grip extending from
under the car’s seat. Suggs recognized the firearm as the gun
from Scooters. The government also produced considerable
evidence that Al Sabahi typically possessed the gold Camry that
he was driving on March 18, although Saleh owned the vehicle.
In support of his argument that this evidence was insufficient
to support the verdict, Al Sabahi relies on Saleh’s cross-
examination, during which Saleh stated that Al Sabahi did not
know that the gun was in the car and that he did not see Al
14
Sabahi remove the gun from Scooters. However, the fact that
Saleh did not see Al Sabahi take the gun does not indicate that
Al Sabahi did not remove it without Saleh’s knowledge.
Furthermore, Saleh’s testimony that Al Sabahi did not know the
gun was in the vehicle simply contradicts Suggs’s statement that
Al Sabahi often carried the gun in the car and the testimony
that Al Sabahi typically maintained control of the Camry. We
must “assume that the jury resolved all contradictions in the
testimony in favor of the government.” Moye, 454 F.3d at 394.
Applying this principle, we hold that the evidence was
sufficient to find that Al Sabahi possessed the .9-millimeter
pistol on March 18, 2007.
With respect to Count Three, the government proved that Al
Sabahi actually possessed a firearm on May 9, 2007, when he
purchased a .380-caliber handgun from Ronald Lee. Lee testified
that he went to Scooters to sell the gun to Saleh but that Al
Sabahi took cash from the register and purchased the firearm.
The government also produced the receipt that Lee had made out
to Al Sabahi. Although Al Sabahi correctly points out that
other receipts show that Lee sold the firearm to Saleh, Saleh
testified that he asked Lee to rewrite the receipt because Al
Sabahi was an illegal alien who could not lawfully purchase a
gun. Once again, we must favor the jury’s interpretation of the
evidence as long as that interpretation is reasonable. See
15
Moye, 454 F.3d at 394. Because the jury’s conclusion that Al
Sabahi possessed the .380-caliber handgun on May 9, 2007, was
reasonable, we conclude that the evidence was sufficient to
support Al Sabahi’s conviction on Count Three.
V.
For the foregoing reasons, we hold that (1) the district
did not err in determining that Al Sabahi was illegally or
unlawfully present in the United States; (2) the district court
did not commit any Confrontation Clause violation; and (3)
substantial evidence supports the jury’s verdict in this case.
We therefore affirm Al Sabahi’s conviction.
AFFIRMED
16