UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSE CHAVEZ GARCIA, DEFENDANT-APPELLANT
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The court held that the proposed jury instructions were not supported by the plain language of the statute and affirmed the conviction.
Jose Chavez Garcia, an alien who had illegally entered the United States, purchased a firearm. He was later indicted under 18 U.S.C. § 922(g)(5) for i…
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DAVID R. THOMPSON, Circuit Judge:
Jose Chavez Garcia (“Garcia”) appeals his conviction, following a jury trial, under 18 U.S.C. § 922(g)(5), which makes it unlawful for “an alien ... illegally or unlawfully in the United States ... to possess ... any firearm.”
On July 6, 1987, Garcia purchased a firearm in Wenatchee, Washington. On October 20, 1987, he was indicted under section 922. Garcia, who by his own admission had illegally entered the United States sometime prior to July 6, 1987, did not apply for legal status until October 22, 1987.
Garcia contends that the district court erred in refusing to give Garcia’s proposed jury instructions, which read as follows:
1. An alien present in the United States with the knowledge or permission of the Immigration & Naturalization service is residing in the United States under “col-or of law.”
2. An alien present in the United States “under color of law” is residing in the United States legally and lawfully.
These instructions go well beyond the plain language of the statute under which Garcia was convicted. See 18 U.S.C. § 922(g)(5). Cf. Sudomir v. McMahon, 767 F. 2d 1456 (9th Cir.1985) (discussing scope of welfare benefits provision expressly applicable to aliens “permanently residing in the United States under color of law”).
At the time Garcia possessed the firearm he had not applied for legal status, and had admittedly entered the country illegally. Under these circumstances, he was “illegally or unlawfully in the United States” for the purposes of this section. The district court committed no error. AFFIRMED.
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United States v. Salman, 266 F. Supp. 2d 1367 (M.D. Fla. 2003)…d States ‘lawfully.’ ” Doc. 43 at 16. The Government relies on two other cases, United States v. Igbatayo, 764 F.2d 1039 (5th Cir.), cert. denied, 474 U.S. 862, 106 S.Ct. 177, 88 L.Ed.2d 147 (1985), and United States v. Garcia, 875 F.2d 257 (9th Cir.1989). In Igbatayo, the Fifth Circuit decided that an alien charged with violating 18 U.S.C. § 922(a)(6) 11 who failed to maintain the student status required by his visa was without authorization to remain in this country, and…
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- Sudomir v. McMAHON, 767 F.2d 1456 (9th Cir. 1985)