           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             May 1, 2009

                                       No. 08-60780                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

ALEJANDRO AMELO-RODRIGUEZ

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                               No. 1:08-CR-22-ALL


Before REAVLEY, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Defendant Alejandro Amelo-Rodriguez challenges his conviction and
sentence under 18 U.S.C. § 922(g)(5) for possessing a firearm as an alien
unlawfully in the United States. We AFFIRM for the following reasons.
1.     We need not resolve whether a misrepresentation by a federally-licensed
       firearms dealer regarding the legality of a defendant’s gun ownership may
       form the basis of an entrapment-by-estoppel defense, because the evidence
       did not support this defense.          “‘The [entrapment-by-estoppel] defense

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                 No. 08-60780

     applies when a government official tells a defendant that certain conduct
     is legal and the defendant commits what would otherwise be a crime in
     reasonable reliance on the official’s representation.’” United States v.
     Ortegon-Uvalde, 179 F.3d 956, 959 (5th Cir. 1999) (quoting United States
     v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18 (11th Cir. 1994) (emphasis
     added)). The record reflects that Defendant never sought or obtained
     authorization to remain in the United States after his status as a
     temporary parolee admitted for humanitarian reasons under 8 U.S.C.
     § 1182(d)(5)(A) expired on August 16, 1997 and was automatically
     terminated. See 8 C.F.R. § 212.5(e)(1)(ii). His statement on the firearms
     application form in October, 2005 that he was not an alien illegally in the
     United States was therefore false. Having failed to apprise the firearms
     dealer of this material fact, Defendant could not have reasonably relied on
     any alleged misrepresentation by the dealer that his gun ownership was
     legal. See, e.g., United States v. Trevino-Martinez, 86 F.3d 65, 69–70 (5th
     Cir. 1996) (holding the failure of an alien to disclose his background of
     prior arrests and deportations to the American consulate that issued him
     a non-immigrant visa precluded a finding that he reasonably relied on the
     supposed misrepresentation that his return to the United States was
     legal). Whether Defendant knew of his illegal status is irrelevant. Cf.
     United States v. Schmidt, 487 F.3d 253, 254–55 (5th Cir. 2007) (construing
     a parallel provision to 18 U.S.C. § 922(g)(5)).
2.   For the same reason the court was not in error to exclude the details of the
     purchase of the gun and refuse to instruct the jury on the subject.
3.   Defendant contends that the district court erred by increasing his base
     offense level by four points based on its finding that he possessed the
     firearm in connection with another felony, U.S.S.G. § 2K2.1(b)(6). We find
     no procedural error with the district court’s sentence. United States v.

                                       2
                                No. 08-60780

    Klein, 543 F.3d 206, 213 (5th Cir. 2008), cert. denied, 129 S. Ct. 1384
    (2009). In light of the record as a whole, the district court plausibly found
    that Defendant had removed doors and windows from the property valued
    at over $500, see M ISS. C ODE A NN. § 97-17-41 (grand larceny), did not have
    permission to take them, and had done so while keeping the firearm
    accessible on the seat of his truck nearby. See, e.g., United States v.
    Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (“There is no clear
    error if the district court’s finding is plausible in light of the record as a
    whole.” (internal quotation marks and citation omitted)).
AFFIRMED.




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