United States v. Miguel Mendiola-Martinez
UNITED STATES of America, Plaintiff-Appellee, v. Miguel MENDIOLA-MARTINEZ, Defendant-Appellant
- Area
- other
- Panel
- Ferdinand F. Fernandez (author), Gould, Smith
Analysis
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Opinion
FILED NOT FOR PUBLICATION MAR 02 2010
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50242 Plaintiff - Appellee, D.C. No. 3:08-CR-01169-WQH v. MEMORANDUM * MIGUEL MENDIOLA-MARTINEZ, Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding Submitted February 16, 2010 ** Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Miguel Mendiola-Martinez appeals from his jury-trial conviction for being an illegal alien in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(5)(A)
and 924(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
NC/Research Mendiola-Martinez contends that the district court erred by instructing the jury that filing an application for adjustment of immigration status does not make a defendant “legally present” for purposes of determining whether he violated 18 U.S.C. § 922(g)(5)(A). This contention fails because Mendiola-Martinez’s pending I-485 application for adjustment of status does not affect his removability, and Mendiola-Martinez points to no statute that renders his presence lawful based upon his application for adjustment of status. See United States v. Latu, 479 F.3d 1153, 1155, 1159 (9th Cir. 2007); see also United States v. Smith, 561 F.3d 934, 938-39 (9th Cir. 2009) (holding that the sufficiency of a jury instruction is subject to harmless error review).
AFFIRMED.
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