from the United States District Court for the Southern
District of Texas
STEWART, Chief Judge, and JOLLY and WIENER, Circuit Judges.
E. STEWART, Chief Judge
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
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).
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.
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.
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
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). 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
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
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.
Standard of Review
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 ...