United States of America v. Miguel Mendiola-Martinez

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
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MIGUEL MENDIOLA-MARTINEZ,
Defendant - Appellant.
No. 09-50242
D.C. No. 3:08-CR-01169-WQH
MEMORANDUM *
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.
FILED
MAR 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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NC/Research 09-50242 2
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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