United States v. Miguel Mendiola-Martinez

368 F. App'x 813

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 2, 2010
• Docket: 09-50242
• Status: Unpublished

Opinion

MEMORANDUM **

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.

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 1-485 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.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.