                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 1, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-10284
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MALABA G. MULUMBA,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                   USDC No. 3:04-CR-250-ALL-P
                      --------------------

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Malaba G. Mulumba appeals his jury conviction and sentence

for making a false claim of United States citizenship in

violation of 18 U.S.C. § 911.   Mulumba does not appeal his jury

conviction for possession of a firearm by an illegal alien in

violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2), and, thus,

this conviction is not affected by the disposition of this

appeal.




     *
       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this opinion should not be published and is not precedent except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. 05-10284
                                 -2-

     Mulumba contends that the Government failed to prove beyond

a reasonable doubt that he represented himself to be a United

States citizen.   Because Mulumba did not move for a judgment of

acquittal in the district court, this court’s review of the

sufficiency of the evidence “is limited to determining whether

there was a manifest miscarriage of justice, that is, whether the

record is devoid of evidence pointing to guilt.”    United States

v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001) (internal quotation

marks and citation omitted).

     A conviction for making a false claim of United States

citizenship requires proof beyond a reasonable doubt that the

defendant “falsely and willfully represent[ed] himself to be a

citizen of the United States.”   18 U.S.C. § 911.   The sole

evidence presented by the Government to establish a violation of

18 U.S.C. § 911 was an I-9 Employment Eligibility Verification

Form wherein Mulumba checked a box certifying that he was “[a]

citizen or national of the United States.” (emphasis added).

Because 18 U.S.C. § 911 criminalizes only false representations

of United States citizenship and a person can be a national of

the United States and yet not a citizen, the record is devoid of

evidence that Mulumba falsely represented himself to be a citizen

of the United States.   Therefore, Mulumba’s conviction under 18

U.S.C. § 911 is REVERSED.   Further, because Mulumba’s 18 U.S.C.

§ 911 conviction affected the sentence imposed in connection with

his 18 U.S.C. § 922(g)(5) conviction, his sentence is VACATED and
                          No. 05-10284
                               -3-

the case is REMANDED for resentencing on the remaining count of

conviction.

     18 U.S.C. § 911 CONVICTION REVERSED; SENTENCE VACATED;
     REMANDED FOR RESENTENCING ON THE REMAINING COUNT OF
     CONVICTION
