United States v. 2005-06-16 | 03-50505 | USA VBRAVO-MUZQUIZ | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 03-50505
Plaintiff-Appellee, D.C. No.
v.  CR-02-02335-BTM
DANIEL BRAVO-MUZQUIZ, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted
October 5, 2004—Pasadena, California
Filed June 16, 2005
Before: Procter Hug, Jr., Thomas G. Nelson, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Hug
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COUNSEL
Michelle Betancourt, Federal Defenders of San Diego, Inc.,
San Diego, California, for the defendant-appellant.
Mark R. Rehe, Assistant United States Attorney, San Diego,
California, for the plaintiff-appellee.
OPINION
HUG, Circuit Judge:
Daniel Bravo-Muzquiz (Bravo) was convicted of a viola-
tion of 18 U.S.C. § 922(g)(5)(A), being an alien illegally or
unlawfully in the United States and possessing a firearm.
Prior to the time of the possession of the firearm, the INS had
initiated removal proceedings against him for being illegally
in the United States and he had been released on an immigra-
tion bond. The essential issue in this appeal is whether the
release on that bond changed his status so that he was no lon-
ger an “alien illegally or unlawfully in the United States.” The
district court held that the release on bond did not change his
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status. Bravo contends that the district court erred in this
determination and that the court erred in giving an instruction
and denying a judgment of acquittal based on that determina-
tion. Bravo also raised two sentencing issues, contending that
the district court erred in failing to grant two downward
adjustments to his sentence. We have appellate jurisdiction
pursuant to 28 U.S.C. § 1291 and we affirm the conviction,
but remand for reconsideration of the sentence.
I.
Factual and Procedural Background
Bravo illegally entered the United States in 1985. In 1988,
he applied for temporary resident alien status under a then-
existing agricultural amnesty program, which status was
granted and annually renewed for several years. In 1992, his
application for continuation under the program was denied.
His appeal of this decision was also denied in 1995. From that
time forward, Bravo filed no other application to adjust his
immigration status although he continued to live and work in
the United States.
On October 27, 2001, Bravo was detained at the Temecula,
California checkpoint after he appeared nervous and failed to
make eye contact with the border inspector upon being ques-
tioned about his immigration status. He was then referred to
the secondary inspection area. At the secondary inspection
area, Bravo produced an immigrant card that the inspector
determined to be fraudulent. At that point, Bravo acknowl-
edged that he was in the United States illegally. Upon further
search of his wallet, the inspector also discovered an expired
employment authorization card, an invalid social security
card, and a “Basic Gun Safety Card,” issued by the State of
California. Bravo was arrested and placed in detention. On the
same day, removal proceedings were initiated. On November
8, 2001, he obtained an immigration bond and was released
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from custody pending the conclusion of the removal proceed-
ings.
ATF agents went to Bravo’s home on December 21, 2001,
based upon a tip provided by the Temecula border patrol
inspectors that Bravo may have been in possession of fire-
arms. The agents questioned him about his possession of
weapons and asked to search his home. Bravo was coopera-
tive and granted them permission to conduct a search. He led
the officers to his bedroom and handed them an empty gun
case and then left the room. The agents then searched the
closet where they found an unloaded Kimber .45 caliber hand-
gun.
Some two months later, a two-count indictment was filed
against him for violating 18 U.S.C. § 922(a)(6), making false
statements in the acquisition of a firearm, and 18 U.S.C.
§ 922(g)(5)(A), being an alien illegally or unlawfully in the
United States in possession of a firearm. The first charge
arose from his application to purchase the Kimber handgun in
August 2001, and the second charge arose from the ATF’s
search of his home on December 21, 2001.
A jury trial was held commencing in May 2003. The evi-
dence produced at the jury trial showed that Bravo had pur-
chased the Kimber handgun on lay away in August 2001,
however, he did not take actual possession of the weapon
until November 9, 2001, one day after he was released on
bond pending his removal proceedings. Following the govern-
ment’s case in chief, Bravo moved for a judgment of acquit-
tal. He argued that at the time he took possession of the
handgun and on the date of the charged offense, December
21, 2001, he was not an “alien illegally or unlawfully in the
United States” because he had authority to remain in the
United States because he had been released on bond. The dis-
trict court disagreed and denied the motion.
At the end of the presentation of evidence, the parties con-
ferred to discuss jury instructions. Over Bravo’s objection, the
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district court gave an instruction defining the meaning of an
“alien unlawfully or illegally in the United States” as a person
present in the United States without authorization. The
instruction went on to state that being released on bond did
not in itself constitute authorization “unless the alien has also
filed an application or petition to legalize his status.”
The jury found Bravo guilty of count two of the indictment,
being an alien illegally or unlawfully in the United States in
possession of a firearm. The jury was unable to reach a ver-
dict as to count one of the indictment, making false statements
in connection with the purchase of a firearm. The district
court ordered a mistrial on that count. Bravo appeals his con-
viction on count two of the indictment.
II.
Discussion
Bravo’s main contention on appeal is that he was lawfully
present in the United States at the time he was found in pos-
session of the handgun because he was authorized to be pres-
ent as a result of his release from custody on bond. He argues
that the district court erred by denying his motion for a judg-
ment of acquittal because he could not have violated 18
U.S.C. § 922(g)(5)(A) as a matter of law. Additionally, he
challenges the district court’s jury instruction on this point.
First, he argues that the instruction was a misstatement of the
law. In the alternative, he contends that the instruction
removed the only contested issue from the jury’s consider-
ation, that is whether he was an alien illegally or unlawfully
in the United States at the time of the offense. Therefore,
according to Bravo, the instruction directed a verdict for the
prosecution in violation of his due process rights.
A. Motion for Judgment of Acquittal
A trial court’s ruling on a motion for judgment of acquittal
and its interpretation of the legal elements of the offense are
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reviewed de novo. United States v. McNeil, 320 F.3d 1034,
1035 (9th Cir. 2003).
[1] It is unlawful for an alien who is illegally or unlawfully
in the United States to “possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or ammuni-
tion which has been shipped or transported in interstate or for-
eign commerce.” 18 U.S.C. § 922(g). Bravo does not contest
the commerce aspect of the statute and the only statutory issue
is whether Bravo was illegally or unlawfully in the United
States at the time of the possession offense. Although there is
no statutory definition of the term “alien illegally or unlaw-
fully in the United States,” the administrative regulation inter-
preting that section does provide a definition. It states in
relevant part that, “[t]he term includes any alien . . . [w]ho is
a nonimmigrant and whose authorized period of stay has
expired . . . .” 27 C.F.R. § 478.11(b). Bravo admits he is a
nonimmigrant whose authorized period of stay expired. How-
ever, he argues that the issuance of an immigration bond pro-
vides authorization for him to remain in the United States and
that this takes him out of the category of an alien who is
unlawfully present in the United States.
In United States v. Garcia, 875 F.2d 257 (9th Cir. 1989),
we held that an alien who had not been legally admitted to
enter the United States and who had not applied for legal sta-
tus at the time he possessed a firearm was “illegally or unlaw-
fully in the United States” for purposes of section 922(5)(g).
Id. at 257-58. Implicitly this recognizes that had Garcia
applied for legal status prior to his possession of the firearm
he would not have been at that time an alien illegally or
unlawfully in the United States. The case does not address
any change in status due to a release on an immigration bond.
Bravo relies on United States v. Hernandez, 913 F.2d 1506
(10th Cir. 1990), which holds that aliens in the process of
applying for legalization of their immigration status are not
unlawfully in the United States and are not subject to deporta-
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tion. The case cites two statutes, 8 U.S.C. §§ 1160(d) and
1255a(e). Both statutes specifically provided that during those
applications for legalization the alien may not be deported.
Bravo did not have an application for legalization pending.
However, Bravo contends that even though that is not the sit-
uation here, his situation of being released on bond is analo-
gous to the situation in Hernandez. There is no precedent in
this circuit nor in the opinions of other circuits suggesting that
the situations are analogous.
[2] Bravo relied in his brief on a district court case, United
States v. Atandi, 228 F. Supp. 2d 1285 (C.D. Utah 2002).
There the district court held that the alien was not illegally or
unlawfully in the United States because he was in immigra-
tion proceedings and released on bond, but had not yet been
ordered removed from the United States. That case has since
been reversed by the Tenth Circuit Court of Appeals in United
States v. Atandi, 376 F.3d 1186 (10th Cir. 2004). The circuit
court expressly rejected the alien’s argument that he was
authorized to remain in the United States pending resolution
of his removal proceedings, and thus, could not have violated
section 922(g)(5)(A). Being on the bond obviously made no
difference in the court of appeals’ decision. The court stated,
The government’s effort to remove an illegal alien
does not somehow designate the alien as “lawfully”
in the country for purposes of § 922(g)(5)(A) during
the pendency of the removal proceedings.
Furthermore, we note that Atandi’s interpretation of
§ 922(g)(5)(A) would lead to absurd results. We can
envision no reason why Congress would grant illegal
aliens the ability lawfully to arm themselves pre-
cisely at the moment the government commences its
effort to remove them from the country.
Id. at 1190 n.9. We agree with this statement by the Tenth
Circuit. The alien’s status is not changed while he is in the
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course of removal proceedings whether or not released from
custody on bond. The purpose of releasing an alien on bond
is simply to release him from custody while his immigration
proceedings are ongoing. It is not to change his status. The
district court did not err in its interpretation of the law on this
point and therefore it did not err in denying Bravo’s motion
for a judgment of acquittal.
B. Jury Instruction
[3] The jury instruction provided by the district court defin-
ing the meaning of an alien illegally or unlawfully in the
United States was a correct statement of the law and did not
constitute a directed verdict for the prosecution. The portion
of the instruction to which Bravo objected stated:
Release on bail or the granting of employment
authorization pending a deportation or removal hear-
ing do not themselves constitute authorization to
remain in the United States unless the alien has also
filed an application or petition to legalize his status.1
1The district court’s entire instruction was as follows:
An alien is in the United States illegally and unlawfully if the
alien is in the United States without authorization. An alien who
has filed an application for legalization of his immigration status
is not illegally or unlawfully in the United States while the appli-
cation is pending. This is so because an alien is authorized to
remain in the United States while the application for legalization
is pending. However, if the application is denied, the alien is
thereafter in the United States without authorization.
Therefore, it is not a violation of federal law for an alien to
purchase or possess a firearm at such time as his application for
legalization is pending.
Release on bail or the granting of employment authorization
pending a deportation or removal hearing do not themselves con-
stitute authorization to remain in the United States unless the
alien has also filed an application or petition to legalize his status.
An application for legalization is called an application or peti-
tion for adjustment of status.
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Both of Bravo’s challenges to the instruction depend
entirely upon the district court’s determination as a matter of
law that an alien is not lawfully or legally present in the
United States for purposes of section 922(g)(5)(A) solely
because he has been released on bond. This is a question of
law for the court, not a question of fact for the jury. Because
we agree with the district court and hold that such a person
is not lawfully present under these circumstances, these chal-
lenges lack merit.
C. Sentencing Issues
Pursuant to U.S.S.G. § 2K2.1(b)(1), the district court
applied a two-level sentencing enhancement to Bravo’s sen-
tence due to the number of firearms he had purchased over the
years. This increased his base offense level from 14 to 16.
The district court refused to grant a downward adjustment
pursuant to U.S.S.G. § 2K2.1(b)(2) based on Bravo’s conten-
tion that he had purchased the guns solely for sporting pur-
poses. The district court also refused a two-level downward
adjustment for acceptance of responsibility. U.S.S.G. § 3E1.1.
[4] Because Bravo did not challenge his sentence on Sixth
Amendment grounds in the district court, we grant a “limited
remand” pursuant to United States v. Ameline, No. 02-30326,
slip op. at 6368-71 (9th Cir. June 1, 2005) (en banc).
Conclusion
We affirm Bravo’s conviction and remand for reconsidera-
tion of the sentence.
AFFIRMED AND REMANDED.
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