United States Court of Appeals
Fifth Circuit
F I L E D
In the April 26, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-20123
Summary Calendar
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
IBRAHIM HASSAN ELRAWY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:03-CR-29-ALL
______________________________
Before SMITH, GARZA, and PRADO, possessed a firearm (count two). We affirm as
Circuit Judges. to count two, reverse as to count one, vacate
the sentence, and remand.1
JERRY E. SMITH, Circuit Judge:
1
Ibrahim Elrawy appeals his conviction of Elrawy also appeals the denial of his motion
violating 18 U.S.C. § 922(g)(5)(B) by being an for new trial. The district court did not set forth
alien admitted under a nonimmigrant visa who reasons for denial. The government contends the
possessed a firearm (count one) and of vi- motion was properly denied because it was un-
olating id. § 922(g)(5)(A) by being an alien timely.
illegally present in the United States who
(continued...)
I. a timely visa petition and satisfied other crite-
A. ria. Elrawy, however, filed a petition that was
Elrawy is a native and citizen of Egypt who too early, and then another one that was too
was admitted to the United States on a non- late, so he did not gain legal status through the
immigrant visa on May 17, 1994. The visa lottery.
authorized him to remain in the United States
not more than six months, so he was required After divorcing Fucich, Elrawy married an-
to depart on or before November 16, 1994. other American citizen, Angela Rosenbaum;
He did not depart, and therefore his stay in the together they have a daughter. In August
United States was “unauthorized” as of No- 1998, Rosenbaum filed on Elrawy’s behalf an
vember 17, 1994. I-130 petition that the Immigration and Nat-
uralization Service (“INS”) approved on June
In December 1994 Elrawy married an Am- 25, 1999. At trial an INS agent testified that
erican citizen, Laura Reynolds Fucich, who the grant of the I-130 petition still stood but
filed on Elrawy’s behalf an I-130 petition, that it had not been granted properly, appar-
which requests that a spouse or family member ently because Elrawy had had a fraudulent
be granted legal status to remain in the United marriage. The INS agent agreed, however,
States. Elrawy then filed an I-485 application that the grant of the I-130 petition placed Elra-
whereby he requested adjustment of his status wy “on the path to getting a visa.”
to that of a lawful permanent resident.
In March 2000 Elrawy openly purchased a
In a January 1996 interview with immigra- gun from a sporting goods store. He filed the
tion officials, Fucich confessed that her union required paperwork, furnishing, among other
with Elrawy was a marriage of convenience things, information concerning his country of
that had never been consummated. Fucich citizenship and address. He correctly showed
withdrew her I-130 petition, and Elrawy was the required information, except that he did
served with a notice to show cause and was not provide his immigration “A-number” and
placed in deportation proceedings in 1996. did not specify that he was illegally in the Unit-
ed States; these omissions supposedly were
In July 1996, Elrawy was notified that he because he thought the approval of the visa
won an immigration “lottery” for fiscal year petition and the pendency of his adjustment of
1997, which might have allowed him to obtain status application meant he was lawfully in the
a diversity visa and gain legal status if he filed United States.
Elrawy was approved to receive a gun
1
(...continued) based on his criminal background check, be-
Where a motion for new trial is based on any cause he had no convictions. He also applied
reason other than newly discovered evidence, it for a state gun permit and again provided all
must be filed within seven days after the verdict or the required information. There is no dispute
finding of guilt. FED. R. CRIM. P. 33(b)(2). El- that he purchased a gun that had traveled in
rawy’s motion did not purport to rely on newly
interstate commerce as required by the statute
discovered evidence. Because the motion, filed on
of conviction.
January 23, 2004, was not filed within seven days
of the July 16, 2003, verdict, it was properly
denied as untimely.
2
B. States; or (B) except as provided in subsection
At trial Elrawy moved, at the close of the (y)(2), has been admitted to the United States
government’s case, for judgment of acquittal under a nonimmigrant visa (as that term is
pursuant to Federal Rule of Criminal Proce- defined in section 101(a)(26) of the Immigra-
dure 29. He argued, as to count one, that his tion and Nationality Act (8 U.S.C. 1101-
nonimmigrant visa had expired in 1994, and (a)(26)))” to posses a firearm that has traveled
thus, under a proper interpretation of the rele- in interstate commerce. § 922(g)(5). Elrawy
vant statutory language, he could not be con- argues that at the time of the gun purchase, he
victed under § 922(g)(5)(B) based on his pur- was not “admitted to the Unites States under
chase of a weapon in March 2000. The dis- a nonimmigrant visa” because his visa had
trict court disagreed. At to count two, Elrawy expired, and that he was not “illegally or un-
argued that he was in the United States legally lawfully” in the United States, because he had
because of his wife’s approved visa petition.2 filed an application for adjustment of status.
These are both legal issues of statutory inter-
The jury returned a guilty verdict on both pretation and so are reviewed de novo.
counts. The district court sentenced Elrawy to United States v. Santos-Riviera, 183 F.3d 367,
a concurrent 21-month terms of imprisonment 369 (5th Cir. 1999).
on each count and to a three-year term of su-
pervised release. He was fined $40,000 and III.
was given a special assessment of $200. The terms “illegally and unlawfully,” as
used in § 922(g)(5)(A), are not specifically de-
II. fined in the criminal statutes or immigration
Both of Elrawy’s convictions were under statutes or regulations. These terms must
subparts of § 922(g)(5), which makes it un- therefore be given their ordinary and natural
lawful for any person “who, being an alienSS meanings. United States v. Orellana, 405
(A) is illegally or unlawfully in the United F.3d 360, 365-66 (5th Cir. 2005).
In Orellana we observed that “‘[d]iction-
2
As to count two, Elrawy also argued that the
aries are a principal source for ascertaining the
superseding indictment charged him with possess- ordinary meaning of statutory language.’” Id.
ing a weapon on or about March 11, 2003, rather We explained that, read in the context of
than 2000. He objected to an amendment of the § 922(g)(5)(A), the dictionary definitions indi-
indictment and sought permission to argue to the cate that an alien “illegally or unlawfully in the
jury that the evidence did not show possession as of United States” is an alien whose presence
the date charged in the indictment. within the United States is “forbidden or not
authorized by law,” id., and we noted that this
The district court refused to allow Elrawy to definition is consistent with our description of
make that argument, and it indicated that it would an illegal alien as one who is “‘in the United
instruct the jury that the date as to count two States without authorization,’” id. at 366 n.36
should read March 11, 2000. Elrawy renewed his (citing United States v. Igbatayo, 764 F.2d
motion for a judgment of acquittal after he formally
1039, 1040 (5th Cir. 1985)). This is also con-
rested. The district court instructed the jury that
sistent with the statutory definition, in immi-
there had been a “typographical error” and inserted
the date “March 11, 2000,” into the indictment for
gration statutes, of the term “unlawful pres-
count two. ence” as presence in the United States after
3
expiration of the period of the stay authorized United States. The court in Brissett recog-
by the Attorney General or presence in the nized that an alien who filed an application for
United States without being admitted or pa- adjustment was not “without authorization” to
roled. See 8 U.S.C. § 1182(a)(9)(B)(ii). stay in the United States. Id. at 91. Rather, he
was permitted to remain in the country while
In Orellana we also looked to the structure his application was pending and was permitted
and purposes of the statute and noted that they to seek employment authorization, and, con-
support the view that Congress sought to rule sistent with the operating instructions promul-
broadly to keep guns out of the hands of those gated by the INS, deportation proceedings
who have demonstrated that “‘they may not be could not be initiated. Id.
trusted to possess a firearm without becoming
a threat to society.’” Orellana, 405 F.3d at In United States v. Flores, 404 F.3d 320,
366 n.36. Illegal aliens are likely to be in that 327 n. 11 (5th Cir. 2005), we declined to ad-
category because they are “‘likely to maintain dress whether Brissett was correctly decided,
no permanent address in this country, elude but we rejected Brissett in United States v. Lu-
detection through an assumed identity, cio, 428 F.3d 519 (5th Cir. 2005), in which we
and—already living outside the law—resort to held that a formerly illegal alien who applies
illegal activities to maintain a livelihood.’” Id. for adjustment of status is not in lawful status
merely because he is allowed to remain in the
United States while his application is pending.
We noted that Orellana, who had entered We concluded that “the submission of an ap-
the country illegally, nevertheless later re- plication does not connote that the alien’s im-
ceived Temporary Protected Status (“TPS”) migration status has changed, as the very real
and thus was “unlike illegal aliens who attempt possibility exists that the INS will deny the
to avoid detection.” Id. Rather, he revealed alien’s application altogether.” Id. at 525.
his “whereabouts to the government” and was
authorized to secure employment, id., so he Lucio, who had entered the country ille-
was not “part of an underground population of gally, remained unlawfully and illegally in the
persons, who, unable to secure lawful employ- United States for purposes of § 922(g)(5)(A).
ment, have a greater likelihood to engage in Id. at 526. Elrawy acquired illegal or unlawful
criminal conduct,” id. Because aliens who status when he remained in the United States
receive TPS are allowed to remain in the after the expiration of the authorized stay on
United States and work and are allowed to ap- November 16, 1994.3
ply for adjustment of status as if they pos-
sessed lawful non-immigrant status, we found Thus, under Lucio, because Elrawy ac-
that Orellana was not unlawfully present in the quired unlawful status on account of his over-
United States. stay, his unlawful status did not change merely
Elrawy relies on United States v. Brissett,
720 F. Supp. 90 (S.D. Tex. 1989), which held 3
8 U.S.C. § 1182(a)(9)(B)(ii); Orellana, 405
that an alien who was charged under § 922(g)-
F.3d at 365-66 (explaining that an alien is “ille-
(5)(A), but who had a pending application for
gally or unlawfully in the United States” is an alien
adjustment to permanent residence status, whose presence within the United States is “forbid-
could not be found to be unlawfully within the den or not authorized by law”).
4
by his filing the application for adjustment of § 922(g)(5)(A) is affirmed.
status, and he is not insulated from prosecu-
tion under § 922(g)(5)(A). The fact that his IV.
wife’s I-130 petition in his favor was approved Count one is a different matter. It charged
is also of no avail, because the approval of the a violation of § 922(g)(5)(B), which criminal-
petition is only one step in the application for izes possession of a firearm by an alien who
adjustment of status.4 “has been admitted to the United States under
a nonimmigrant visa.” As the government
The answer implicitly given in Lucio is that correctly notes, it is beyond cavil that Elrawy
an alien who has acquired unlawful or illegal was admitted to the United States on a nonim-
status (either by overstaying a visa or illegally migrant visa for a period of six months in
crossing the border without admission or par- 1994, that his nonimmigrant visa expired in
ole) cannot relinquish that illegal status until November 1994, and that he possessed a fire-
his application for adjustment of status is ap- arm in 2000. The real issue is thus one of stat-
proved.5 We are bound by Lucio, which gives utory interpretation: Does § 922(g)(5)(B) ap-
primacy to the applicant’s legal status before ply where the defendant’s nonimmigrant visa
he files an application for adjustment of status, has expired before his possession of the fire-
as opposed to his current status (permitted to arm and he is thus in the United States ille-
stay in the United States during the pendency
of such application),6 so the conviction under
6
(...continued)
Because aliens in the process of applying for le-
4
To obtain an immigrant visa based on mar- galization of their immigration status may not
riage to a United States citizen, the American be deported, 8 U.S.C. §§ 1160(d) & 1255a(e),
spouse must first file a Form I-130 Petition for they are not unlawfully in the United States and
Alien Relative to establish his or her relationship to thereby subject to prosecution under §
the spouse who seeks to immigrate to the United 922(a)(6). Consequently, to be prosecuted
States. See 8 U.S.C. §§ 1151, 1154. If immigra- under § 922(g)(5), an alien seeking amnesty
tion officials approve the I-130 application, the under 8 U.S.C. § 1160 or § 1255 must either
alien spouse must then file a Form I-485 Applica- receive a firearm before filing an amnesty ap-
tion To Register for Permanent Residence or Ad- plication or after such application is denied.
just Status. See 8 U.S.C. § 1255.
See also United States v. Bravo-Muzquiz, 412
5
See also United States v. Bazargan, 992 F.2d F.3d 1052, 1055 (9th Cir. 2005):
844, 848- 49 (8th Cir. 1993) (holding that an alien
was subject to § 922(g)(5)’s firearm disability even In United States v. Garcia, 875 F.2d 257 (9th
though he had filed an asylum petition, because Cir. 1989), we held that an alien who had not
“the employment authorization did not have the been legally admitted to enter the United States
effect of converting Bazargan back into a legal and who had not applied for legal status at the
alien”). time he possessed a firearm was “illegally or
unlawfully in the United States” for purposes of
6
Not all courts follow this approach. As rea- section 922(g)(5). Id. at 257-58. Implicitly
soned by the court in United States v. Hernandez, this recognizes that had Garcia applied for legal
913 F.2d 1506, 1513-14 (10th Cir. 1990), status prior to his possession of the firearm he
would not have been at that time an alien ille-
(continued...) gally or unlawfully in the United States.
5
gally? Romo, 989 F.2d at 759.
The government argues that even if the visa We agreed with the Eleventh Circuit that to
had expired and Elrawy was here illegally after conclude otherwise would mean that “a con-
the expiration, he could be convicted under victed felon who is also a fugitive from justice,
both §§ 922(g)(5)(A) and 922(g)(5)(B) be- a drug addict, a ‘mental defective,’ and an
cause there is no violation of the prohibition illegal alien, could be sentenced to five con-
against multiple punishments for the same of- secutive terms of imprisonment for the same
fense, in light of the fact that each prong of the incident, namely, possession of a firearm.” Id..
statute requires something that the other does Rather, the statute’s structure, and the fact
not. This argument, however, was flatly re- that Congress provided criminal penalties for
jected in United States v. Munoz-Romo, 989 the violation of subsection (g) of § 922 but did
F.2d 757 (5th Cir. 1993), which the govern- not list separate penalties for the separate
ment fails to cite. In that case, which we de- subdivisions of subsection (g), indicated that
cided after a contrary opinion had been sum- Congress sought “only to bar the possession of
marily reversed by the Supreme Court,7 we firearms by certain types of persons that it
held that “the language and structure of Sec- considered dangerous,” and not to punish
tion 922(g) disclose Congress’s clear intent persons “solely for having a certain status
not to impose cumulative punishments when under the law.” Winchester, 916 F.2d at 605-
the same incident violates two subdivisions of 07.
subsection (g).”
Double jeopardy for the convictions under
In Munoz-Romo we relied on the factually §§ 922(g)(5)(A) and 922(g)(5)(B) is not an
similar United States v. Winchester, 916 F.2d issue here, however, because it is not raised on
601 (11th Cir. 1990), in which the court noted appeal. Nonetheless, the analysis in Munoz-
that application of the Blockburger test would Romo and Winchester with respect to Con-
yield a different result, but the court found the gress’s intent not to impose cumulative pun-
statute’s structure and legislative history ishments is instructive.
“plainly expressed contrary view on the part of
Congress” that supported the defendant’s in- The appropriate starting point when inter-
terpretation. Id. at 606- 07 (quoting Garrett preting any statute is its plain meaning. United
v. United States, 471 U.S. 773, 779 (1985)). States v. Ron Pair Enters., Inc., 489 U.S. 235,
We noted that this type of case is unlike 242 (1989). “In ascertaining the plain meaning
Blockburger, which addressed a situation in of the statute, the court must look to the
which Congress had criminalized different ac- particular statutory language at issue, as well
tions, in different statutes, at different times; as the language and design of the statute as a
we observed that Congress had created § 922 whole.” K Mart Corp. v. Cartier, Inc., 486
and its structure in one enactment, signaling U.S. 281, 291 (1988). “It is axiomatic that
that “it did not intend multiple punishments for statutes . . . are to be interpreted, to the maxi-
the possession of a single weapon.” Munoz- mum extent possible, so as to be consistent
and harmonious.” Airline Pilots Ass’n Int’l v.
Taca Int’l Airlines, S.A., 748 F.2d 965, 969
7
See Munoz-Romo v. United States, 506 U.S.
(5th Cir. 1984).
802 (1992).
6
Because Elrawy “has been admitted . . . un- Because “‘[s]pecific words within a statute
der a nonimmigrant visa” in 1994, he could . . . may not be read in isolation of the remain-
conceivably fall within the ambit of § 922- der of that section or the entire statutory
(g)(5)(B) notwithstanding the fact that such scheme,’” Davis v. Fechtel, 150 F.3d 486, 488
visa had expired before he possessed a firearm. (5th Cir. 1998) (citation omitted), only aliens
But, as his attorney argued at trial, under this who were admitted to the United States on a
interpretation of the statute even a non-immi- non-immigrant visa and maintain lawful “non-
grant who became a lawful permanent alien immigrant” status can be prosecuted under
and has not left the United States since his § 922(g)(5)(B). Aliens no longer in lawful
initial admittance under a non-immigrant visa non-immigrant status (1) are not to be prose-
could be prosecuted, because he is an alien cuted if they purchased the gun after they ac-
who has been admitted under a non-immigrant quired lawful immigrant status and (2) can be
visa. That result would be absurd. prosecuted under § 922(g)(5)(A) if they pur-
chased the gun after they acquired unlawful
Therefore, it is implicit that an event that status.
changes the alien’s legal non-immigrant status
—either from that of lawful non-immigrant to In the absence of evident congressional in-
lawful immigrant (permanent resident) or from tent to render conduct such as Elrawy’s sub-
lawful non-immigrant to unlawful immi- ject to prosecution under both § 922(g)(5)(A)
grant—renders this provision unavailable as to and § 922(g)(5)(B), our interpretation is also
him. This is especially so given that an un- supported by the rule of lenity, which “rests on
lawful immigrant is already covered by § 922- the fear that expansive judicial interpretations
(g)(5)(A). will create penalties not originally intended by
the legislature.” Winchester, 916 F.2d at 605-
That is to say, the structure of the statute 07 (citing 3 N. SINGER, SUTHERLAND STATU-
supports the position Elrawy took in the dis- TORY CONSTRUCTION § 59.03 (4th ed. 1986)).
trict court in moving for judgment of acquittal It is “an outgrowth of our reluctance to in-
on count one. Aliens “illegally or unlawfully” crease or multiply punishments absent a clear
in the United States are prohibited from pos- and definite legislative directive.” Simpson v.
sessing firearms under § 922(g)(5)(A), but ali- United States, 435 U.S. 6, 15-16 (1978). By
ens admitted on nonimmigrant visas (and the application of lenity, courts “‘will not
hence not illegally or unlawfully in the United interpret a federal criminal statute so as to
States) are prohibited frompossessing firearms increase the penalty that it places on an indi-
under § 922(g)(5)(B), with certain exceptions. vidual when such an interpretation can be
See § 1915(y)(2).8 based on no more than a guess as to what
Congress intended.’” Id. at 15 (quoting Lad-
ner v. United States, 358 U.S. 169, 178
(1958)).9
8
Section 922(g)(5)(B) contains an exception
for various limited classes of aliens, including those
admitted to the United States for lawful hunting or
9
sporting purposes, and “foreign law enforcement For purposes of this statute, a lawful non-
officer[s] of a friendly foreign government entering immigrant who applies for adjustment of status re-
the United States on official law enforcement mains an alien “admitted . . . under a nonimmigrant
business.” See § 922(g)(5)(B), (y)(2). (continued...)
7
The judgment of conviction on count two is
AFFIRMED, and the conviction on count one
is REVERSED. The judgment of sentence is
VACATED, and this matter is REMANDED
for resentencing and any other appropriate
proceedings.
9
(...continued)
visa” because only the approval of the adjustment
of status would change his status from that of
“admitted . . . under a nonimmigrant visa” to that
of a lawful permanent resident. Such alien may be
an immigrant for the purposes of other statutes
(because he has abandoned the intention to return
to the home country), but this statute looks to his
“admittance visa.”
8