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United States v. Arrieta

United States Court of Appeals, Fifth Circuit

July 7, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee

         Appeal from the United States District Court for the Southern District of Texas

          Before STEWART, Chief Judge, and JOLLY and WIENER, Circuit Judges.

          CARL E. STEWART, Chief Judge

         Defendant-Appellant Guillermo Soriano Arrieta appeals the district court's denial of his motion to dismiss the indictment charging him under 18 U.S.C. § 922(g)(5)(A) with possession of a firearm and ammunition while unlawfully present in the United States. We AFFIRM the district court's judgment but reform it to correct a clerical error in the statute of conviction.

         I. Background

         On August 26, 2015, an officer stopped Arrieta's vehicle in George West, Texas for a defective taillight. After noticing that Arrieta appeared excessively nervous, the officer asked whether there was contraband in the vehicle. Arrieta disclosed the presence of a firearm and ammunition, and a consent search of the vehicle produced a pistol and over 7, 200 rounds of ammunition. Arrieta was then arrested. While Arrieta was in custody, authorities determined that he was a citizen of Mexico and that he was in receipt of relief under the Deferred Action for Childhood Arrivals (DACA) program administered by the Department of Homeland Security (DHS).

         According to the DHS's memoranda announcing and describing the DACA program, DACA "is a form of prosecutorial discretion by which the Secretary deprioritizes an individual's case for humanitarian reasons, administrative convenience, or in the interest of the Department's overall enforcement mission." It is "legally available so long as it is granted on a case-by-case basis" and "it may be terminated at any time at the agency's discretion." To qualify, an individual must: (1) have arrived in the United States under the age of sixteen; (2) have continuously resided in the United States for at least five years prior to the issuance of the first DACA memorandum and have been present in the United States on the date of issuance; (3) be currently in school, have graduated from high school, have obtained a general education development certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces; (4) not have been convicted of a felony, a significant misdemeanor, multiple misdemeanors, or otherwise pose a threat to national security or public safety; (5) not be older than thirty.

         The notice provided to Arrieta clarifies that DACA relief "does not confer or alter any immigration status, " and the policy memorandum announcing DACA states that it "confers no substantive right, immigration status or pathway to citizenship, " as "[o]nly the Congress, acting through its legislative authority, can confer these rights." Recipients of DACA relief are permitted to apply for work authorization, however.

         Arrieta first entered the United States with his parents as a two-year old, pursuant to a valid visa. He then overstayed that visa, completing high school in the United States. He applied for and received discretionary relief under DACA, spanning two years from November 15, 2013 to November 14, 2015. Arrieta also applied for and received work authorization.

         By virtue of the superseding indictment, Arrieta was charged with being an alien illegally and unlawfully in the United States in possession of a firearm affecting interstate and foreign commerce (Count One) and in possession of ammunition affecting the same (Count Two).[1] Arrieta admitted that he was a citizen of Mexico, but moved to dismiss the indictment on the grounds that "relief from removal granted, although not conferring any legal status in this Country, simply means that, for a specified period of time, an individual is permitted to be lawfully liv[ing] in the United States." Arrieta argued that the relief granted under DACA places him in the same position as an individual holding temporary protected status (TPS). He explained that although it was clear that aliens who have applied for but have not yet been granted lawful status violate Section 922(g)(5)(A), where a defendant was granted TPS this court has held that "it could not say with certainty that Congress intended to criminalize the possession of firearms by such aliens, " and applied the rule of lenity to hold that "an alien's presence became lawful for purposes of the firearms statute once TPS status was conferred upon the alien."

         The Government responded that TPS was a statutory creation that grants a "status" and carries certain statutory rights. DACA relief, on the other hand, confers no rights or entitlements, and as a form of prosecutorial discretion can be revoked at any time. The Government conceded that relief under DACA conferred lawful "presence, " but argued that to avoid prosecution under Section 922(g), this court's precedent requires a defendant to show lawful "status."

         After an extended discussion, the district court took the matter under advisement, and ultimately issued an order denying the motion to dismiss without providing reasons. Arrieta subsequently entered a conditional guilty plea to Count One of the superseding indictment, reserving only his right to appeal the denial of his motion to dismiss.

         II. Standard of Review

         This court reviews de novo the district court's denial of a motion to dismiss an indictment. United States v. Kay, 513 F.3d 432, 440 (5th Cir. 2007). Issues of statutory interpretation are also reviewed de novo. See Texas v. United States, 497 F.3d 491, 495 (5th Cir. 2007). Accordingly, this court reviews de novo whether the grant of ...

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