United States v. Abduladhim Al Sabahi

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4363

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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.

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

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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.

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).

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.

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. *

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.

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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

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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.

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