Opinion
No. 09-50242.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed March 2, 2010.
Anne Kristina Perry, Assistant U.S., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Thomas A. Lappin, Esquire, Law Office of Thomas A. Lappin, San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, William Q. Hayes, District Judge, Presiding. D.C. No. 3:08-CR-01169-WQH.
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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 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).