                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4363


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ABDULADHIM AHMED AL SABAHI,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:11-cr-00056-D-1)


Argued:   March 22, 2013                    Decided:   June 12, 2013


Before SHEDD and FLOYD, Circuit Judges, and Joseph R. GOODWIN,
United States District Judge for the Southern District of West
Virginia, sitting by designation.


Affirmed by published opinion.    Judge Floyd wrote the opinion,
in which Judge Shedd and Judge Goodwin joined.


ARGUED: Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North
Carolina, for Appellant. Joshua L. Rogers, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.        ON
BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
FLOYD, Circuit Judge:

       On October 25, 2011, Appellant Abduladhim Ahmed Al Sabahi

was    charged      in    a    four-count          superseding         indictment      with

knowingly      possessing      firearms       while        illegally    and    unlawfully

present     in    the     United     States,        in     violation      of   18     U.S.C.

§§ 922(g)(5)(A) and 924(a)(2).                A jury found Al Sabahi guilty of

three counts.           Al Sabahi appealed, alleging that he was not

illegally or unlawfully present in the United States, that the

district court committed a Confrontation Clause violation, and

that the evidence was insufficient to support his conviction.

We now affirm.



                                           I.

                                           A.

       On November 12, 1997, Al Sabahi—a native of Yemen—entered

the United States using a visa that expired in May 1998.                                 Al

Sabahi    remained       in   the    United       States    after   his    visa      expired

without obtaining authorization to do so.                       On January 10, 2003,

Al    Sabahi     voluntarily        registered       with    the    National        Security

Entry-Exit Registration System (NSEERS), a War on Terror-related

program pursuant to which non-immigrant men of certain ages and

from   certain     countries        were   fingerprinted,           photographed,       and

interviewed.        Immigrations and Customs Enforcement then placed

Al Sabahi in removal proceedings because he had overstayed his

                                              2
visa.        In   August    2003,   Al   Sabahi     married       a    United     States

citizen,      and   he     thereafter    filed    an    I-485         application    to

legalize his presence in the United States.

      At the time of the events relevant to this case, Al Sabahi

worked at Scooters In and Out convenience store in Littleton,

North Carolina.          On February 15, 2007, a Pepsi employee named

Jonathan Mosley came to Scooters to remove a Pepsi cooler.                           Al

Sabahi    placed    a    .9-millimeter     pistol      on   the       store’s    counter

during Mosley’s visit.          According to Mosley, Al Sabahi told him

that he could not take the cooler.                Mosley then left the store

and   called      his    supervisor,     Donald   Ferguson.            When     Ferguson

arrived, he saw the gun and realized that Al Sabahi was not

going to release the cooler.              Ferguson then called Mike Suggs,

the chief of the Littleton Police Department.                     Suggs did not see

the gun when he arrived, but he had seen it on prior occasions.

Suggs told Al Sabahi to keep the gun under the store’s counter.

      On March 18, 2007, Suggs and other officers were conducting

a traffic checkpoint.           Officer Shane Jenkins stopped Al Sabahi,

who was driving a gold Toyota Camry.                    Although Ali Saleh—the

owner of Scooters—owned the car, Al Sabahi frequently borrowed

it.     Suggs looked down at the car’s floorboard and saw part of a

pistol grip.        He asked Jenkins to remove Al Sabahi from the car

and   then    retrieved     a   .9-millimeter     pistol      from       the    vehicle.

Suggs was familiar with the pistol and was aware that Al Sabahi

                                          3
sometimes carried it in the vehicle.                        Suggs instructed Jenkins

to charge Al Sabahi with carrying a concealed weapon.

       On May 9, 2007, Ronald Lee came to Scooters to sell a .380-

caliber handgun to Saleh.                  Saleh was not present at the store,

so    Al    Sabahi    took    cash    from     the    register      and     purchased     the

firearm.       Lee prepared a receipt in Al Sabahi’s name.                                When

Saleh found out that Al Sabahi had bought the gun, he contacted

Lee and told him that Al Sabahi was an illegal alien and should

not have purchased a firearm.                      Lee later met with Saleh and

prepared a new receipt that named Saleh as the purchaser.

       Saleh testified that, on September 7, 2007, he went home

and found Al Sabahi drunk, carrying the .380-caliber handgun,

and claiming that it belonged to him.                       Al Sabahi then left with

the    firearm,       and    Saleh        reported    the     theft    to      the    police.

Jenkins later retrieved the gun from one of Saleh’s relatives.



                                              B.

       On    May     24,    2011,    Al    Sabahi    was     charged      in    a    two-count

indictment         with     violating        18     U.S.C.     §§     922(g)(5)(A)        and

924(a)(2).         These provisions make it a crime for “an alien . . .

illegally      or     unlawfully      in     the     United    States”         to   knowingly

“possess in or affecting commerce, any firearm or ammunition.”

18 U.S.C. § 922(g)(5)(A); see also id. § 924(a)(2) (subjecting

individuals who knowingly violate § 922(g)(5)(A) to a fine and

                                               4
up to ten years’ imprisonment).                 Al Sabahi moved to dismiss the

indictment on August 12, 2011, arguing that he was not illegally

or unlawfully in the United States because he registered with

NSEERS and had filed an I-485 application for an adjustment of

his status.       Al Sabahi also contended that only an immigration

judge   had     jurisdiction      to     determine     whether     he    was       legally

present    in   the    United    States     because    he    had   been       placed    in

removal    proceedings.          The     district    court   denied      Al        Sabahi’s

motion to dismiss.

      On October 25, 2011, Al Sabahi was charged once again in a

four-count      superseding       indictment        with    violating         18     U.S.C.

§§ 922(g)(5)(A) and 924(a)(2).              Count One concerned the February

15, 2007, incident with the .9-millimeter pistol that took place

at Scooters; Count 2 related to the March 18, 2007, incident

with the same gun that occurred during the traffic stop; Count

Three involved the May 9, 2007, incident in which Al Sabahi

purchased the .380-caliber handgun; and Count Four concerned the

September 7, 2007, incident involving the same gun, which took

place at Saleh’s residence.

      Al   Sabahi’s     trial     took    place     from   January      23,    2012,    to

January 25, 2012.            At trial, Al Sabahi attempted to introduce a

911   telephone       call    report     concerning    his   encounter         with     the

Pepsi employee.         The district court held that the document did

not fall within any exceptions to the rule against hearsay and

                                            5
that, even if it did, the court would exclude it under Federal

Rule of Evidence 403.     A jury found Al Sabahi guilty on Counts

One, Two, and Three and not guilty on Count Four.            The district

court sentenced Al Sabahi to twenty-seven months’ imprisonment

on each count, to be served concurrently.            Al Sabahi filed a

timely appeal, and we have jurisdiction pursuant to 28 U.S.C.

§ 1291.



                                   II.

     We turn first to Al Sabahi’s argument that the district

court should not have found that he was illegally or unlawfully

present in the United States.           We review de novo the district

court’s ruling on Al Sabahi’s motion to dismiss the indictment.

United States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002).



                                   A.

     Federal regulations recognize that “[a]lien[s] illegally or

unlawfully in the United States” include “nonimmigrant[s] . . .

whose   authorized   period   of   stay    has   expired.”     27   C.F.R.

§ 478.11.   As a general matter,

     an alien who is only permitted to remain in the United
     States for the duration of his or her status . . .
     becomes “illegally or unlawfully in the United States”
     for purposes of § 922(g)(5)(A) upon commission of a
     status violation.   We look to the date of the status
     violation to determine when the alien’s presence


                                    6
       became unauthorized, not to when                    that       violation     is
       recognized by official decree.

United States v. Atandi, 376 F.3d 1186, 1188 (10th Cir. 2004)

(footnote omitted); see also United States v. Latu, 479 F.3d

1153, 1159 (9th Cir. 2007); United States v. Bazargan, 992 F.2d

844, 847-48 (8th Cir. 1993).                 Furthermore, “an alien who has

acquired unlawful or illegal status (either by overstaying a

visa   or   illegally       crossing    the       border       without       admission    or

parole)     cannot        relinquish    that        illegal          status    until     his

application       for     adjustment    of       status    is    approved.”         United

States v. Elrawy, 448 F.3d 309, 314 (5th Cir. 2006).                             Al Sabahi

remained in the United States after his visa expired, and his

request     for     adjustment     of    status       has       not     been     approved.

Therefore,        under    these   general         principles,          Al     Sabahi    was

illegally or unlawfully in the United States at the time he

possessed the firearms in question.



                                         B.

       Despite these general rules, Al Sabahi makes two arguments

that he was not illegally or unlawfully present in the United

States under 18 U.S.C. § 922(g)(5)(A).                     First, he contends that

he was “in effect ‘paroled’” via 8 U.S.C. § 1182(d) when he

registered    through       NSEERS.      Pursuant         to    27    C.F.R.    §   478.11,

aliens are not illegally or unlawfully in the United States if


                                             7
they are in valid parole status.                       The U.S. Code provides that

the Attorney General may parole aliens into the United States

temporarily        for    “urgent       humanitarian         reasons     or    significant

public    benefit.”         8   U.S.C.     §        1182(d)(5)(A).        In    this    case,

however, the Attorney General did not take any action on Al

Sabahi’s behalf, and Al Sabahi does not identify any “urgent

humanitarian        reasons        or     significant          public     benefit”       that

warranted his parole.              Furthermore, “parole is granted only to

aliens    who     have    not   yet      entered       the    United     States,”      United

States v. Anaya-Acosta, 629 F.3d 1091, 1094 (9th Cir. 2011) (per

curiam), and Al Sabahi was already present in the United States

when    he     complied     with     the    NSEERS         program.       Therefore,      Al

Sabahi’s       argument     that     he    was       not     illegally    or    unlawfully

present      in    the    United        States       because     he     was    “in     effect

‘paroled’” fails.

       Second, Al Sabahi argues that he was placed in “‘limbo’ or

‘quasi’ immigration status” when he filed his I-485 application

for adjustment of his status.                   In support of this argument, Al

Sabahi cites the Tenth Circuit’s decision in United States v.

Hernandez, 913 F.2d 1506 (10th Cir. 1990).                            In Hernandez, the

Tenth Circuit held that the district court properly convicted

the defendant under § 922(g)(5) because he purchased the gun in

question before filing an amnesty application.                                Id. at 1514.

The    court      explained     in      dicta       that,    “[h]ad     [the    defendant]

                                                8
received the pistol after filing his amnesty application, he

would not have been illegally in the United States for purposes

of   § 922(g)(5).”           Id.     Relying      on    this     language,      Al    Sabahi

contends that he was not illegally present in the United States

when he possessed the firearms at issue because he had filed his

I-485 application.           However, although some courts have favorably

cited this dicta, see, e.g., United States v. Salman, 266 F.

Supp. 2d 1367, 1374 (M.D. Fla. 2003), rev’d on other grounds,

378 F.3d 1266 (11th Cir. 2004), this Court has held “that the

mere   filing     of   an     application        for    adjustment     of      status       and

receipt of an employment authorization card does not legalize

the alien’s presence in the United States, and it is still a

crime,    under    §   922(g)(5),       for      that    individual       to    possess       a

firearm,”        United States v. Cavillo-Rojas, Nos. 10-4033, 10-

4061, 10-4062, 10-4067, 10-4072, 2013 WL 563885, at *10 (4th

Cir.   Feb.      15,   2013).        Furthermore,         many    other     courts      have

declined    to    interpret        Hernandez     to     allow    the   result        that    Al

Sabahi seeks, see Latu, 479 F.3d at 1157-58; Elrawy, 448 F.3d at

313-14 & n.6; Atandi, 376 F.3d at 1192 & n.12, and the Tenth

Circuit    itself      has    called    Hernandez         into    doubt,       see    United

States    v.   Ochoa-Colchado,         521     F.3d     1292,    1294-95       (10th    Cir.

2008) (“[T]he greater weight of authority is of the view that

the filing of an application for adjustment of status before an

alien’s    possession        of     firearms      does    not     alter     the      alien’s

                                             9
status.”).        Because    Al     Sabahi’s     argument       that    he       was   not

illegally    in   the    United     States   due    to    his   I-485    application

lacks support, the pendency of this application does not alter

our conclusion that Al Sabahi was illegally or unlawfully in the

United States when he possessed the firearms in question. *



                                        C.

     Next, Al Sabahi contends that the district court erred in

allowing this case to proceed without waiting for an immigration

judge to decide whether Al Sabahi was removable.                         As his only

support     for   this      proposition,       Al   Sabahi       cites       8    U.S.C.

§ 1229a(a)(1), which states that “[a]n immigration judge shall

conduct     proceedings       for     deciding      the     inadmissibility             or

deportability of an alien.”             However, this provision does not

divest district courts of the ability to decide whether aliens

     *
        Al Sabahi also points to a 1999 Immigration and
Naturalization Service memorandum to argue that his I-485
application affects whether he was illegally or unlawfully
present in the United States.      See Robert L. Bach, Executive
Associate   Commissioner,    INS,   Accepting   Applications for
Adjustment of Status Under Section 245(i) of the Immigration and
Nationality    Act    (April      14,    1999),    available  at
http://www.section245i.com/info/ins-04-14-99.html. Specifically,
Al Sabahi contends that “the period of authorized stay continues
during the period in which the application is denied and renewed
in removal proceedings.”     However, this memorandum explicitly
states that the period of authorized stay applies only with
respect to an unrelated provision of the Immigration and
Nationality Act.   See id.    The memorandum consequently has no
bearing on the case at hand.



                                        10
are illegally or unlawfully present in the United States for the

purposes of 18 U.S.C. § 922(g)(5)(A).                          See United States v.

Bravo-Muzquiz,          412    F.3d    1052        (9th    Cir.     2005)      (considering

whether    the    defendant          was   unlawfully        present      in    the   United

States under § 922(g)(5)(A) even though his removal proceedings

remained pending), superseded by statute on other grounds as

recognized in Latu, 479 F.3d 1153.                        Al Sabahi’s argument that

the district court erred in moving forward with this case before

an immigration judge determined his removability therefore lacks

merit.



                                             III.

      Al Sabahi next contends that the district court violated

his Sixth Amendment confrontation right when it did not allow

him to question government witness Thomas D. O’Connell about his

pending I-485 application and participation in NSEERS.                            However,

Al   Sabahi      does    not       clarify   exactly        how    the    district     court

violated his confrontation right.                   The district court allowed Al

Sabahi’s    attorney          to   cross-examine          O’Connell.        See   Davis    v.

Alaska,    415    U.S.    308,       316   (1974)     (“Our       cases   construing      the

([C]onfrontation) [C]lause hold that a primary interest secured

by it is the right of cross-examination.” (quoting Douglas v.

Alabama, 380 U.S. 415, 418 (1965)) (internal quotation marks

omitted)).        When Al Sabahi’s attorney sought to ask O’Connell

                                              11
about Al Sabahi’s I-485 application and NSEERS registration, the

court declined to permit this questioning on the basis that it

was irrelevant.          Because Al Sabahi has given no real reason why

excluding this testimony violated his confrontation right and

because he was permitted to cross-examine O’Connell, we decline

to find any Sixth Amendment violation.



                                             IV.

       Finally,        Al    Sabahi      contends       that     the      evidence   was

insufficient to support the jury’s verdict in this case.                             “We

must uphold a jury verdict if there is substantial evidence,

viewed      in   the    light    most    favorable       to    the   [g]overnment,      to

support it.”       United States v. Cardwell, 433 F.3d 378, 390 (4th

Cir.   2005).          “Substantial      evidence       is    that   evidence   which    a

‘reasonable       finder        of    fact   could      accept       as   adequate   and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.’”                Id. (quoting United States v. Burgos, 94

F.3d 849, 862 (4th Cir. 1996) (en banc)).                             For the reasons

below, we find that the evidence was sufficient to support the

verdict in this case.

       18   U.S.C.      §§   922(g)(5)(A)         and   924(a)(2)      criminalize   the

knowing possession of firearms or ammunition.                        Possession may be

actual or constructive.                See United States v. Scott, 424 F.3d

431, 435 (4th Cir. 2005).                To establish actual possession, the

                                             12
government        must        prove     that        Al    Sabahi        “voluntarily      and

intentionally had physical possession of the firearm.”                             Id.    By

contrast, the government can prove constructive possession by

showing    that     Al    Sabahi       “intentionally        exercised       dominion     and

control over the firearm, or had the power and the intention to

exercise dominion and control over the firearm.”                             Id. at 436.

The government can establish constructive possession by direct

or circumstantial evidence.               Burgos, 94 F.3d at 873.

      With respect to Count One, the government proved that Al

Sabahi actually possessed a .9-millimeter pistol on February 15,

2007, when Pepsi employee Jonathan Mosley attempted to remove a

cooler     from     Scooters.           Mosley       and     his    supervisor,      Donald

Ferguson, both testified that they saw the gun on the counter,

and Mosley identified Al Sabahi as the cashier working that day.

Police    Chief        Mike    Suggs    confirmed         that     Al   Sabahi    had    been

accused of brandishing the pistol and stated that he had seen

the   weapon      on    prior    occasions.              Despite    this   testimony,      Al

Sabahi claims that the evidence was insufficient in light of a

911   report      that    the    district       court      excluded       under   the    rule

against hearsay and Federal Rule of Evidence 403.                                 Al Sabahi

contends     that       the    911     report       discredits      Mosley’s      testimony

because it indicates that Al Sabahi made the 911 call, which he

would not have done if he possessed a gun.                          However, “where the

evidence supports differing reasonable interpretations, the jury

                                               13
will decide which interpretation to accept.”                        United States v.

Moye,   454    F.3d   390,     394   (4th    Cir.      2006).      In     light   of   the

overwhelming evidence that Al Sabahi possessed the .9-millimeter

pistol during his confrontation with Mosley, the jury’s decision

to accept the government’s interpretation of the evidence was

certainly reasonable, even assuming for the sake of argument

that    the   district   court       erred       in   excluding     the    911    report.

Therefore,     considered       in    the    light       most     favorable       to   the

government, the evidence was sufficient to prove that Al Sabahi

possessed the firearm in question on February 15, 2007.

       Regarding Count Two, the government proved that Al Sabahi

constructively possessed a .9-millimeter pistol while he drove a

gold Toyota Camry on March 18, 2007.                         Suggs testified that he

knew Al Sabahi sometimes carried the gun while he drove and that

he had warned him not to do so.                   During a traffic stop, Suggs

looked inside the vehicle and saw a pistol grip extending from

under the car’s seat.           Suggs recognized the firearm as the gun

from    Scooters.        The    government            also    produced     considerable

evidence that Al Sabahi typically possessed the gold Camry that

he was driving on March 18, although Saleh owned the vehicle.

In support of his argument that this evidence was insufficient

to   support    the   verdict,       Al   Sabahi       relies     on    Saleh’s    cross-

examination, during which Saleh stated that Al Sabahi did not

know that the gun was in the car and that he did not see Al

                                            14
Sabahi remove the gun from Scooters.                 However, the fact that

Saleh did not see Al Sabahi take the gun does not indicate that

Al     Sabahi     did    not   remove      it   without     Saleh’s      knowledge.

Furthermore, Saleh’s testimony that Al Sabahi did not know the

gun was in the vehicle simply contradicts Suggs’s statement that

Al Sabahi often carried the gun in the car and the testimony

that Al Sabahi typically maintained control of the Camry.                         We

must “assume that the jury resolved all contradictions in the

testimony in favor of the government.”                Moye, 454 F.3d at 394.

Applying        this    principle,    we     hold   that        the   evidence   was

sufficient to find that Al Sabahi possessed the .9-millimeter

pistol on March 18, 2007.

       With respect to Count Three, the government proved that Al

Sabahi actually possessed a firearm on May 9, 2007, when he

purchased a .380-caliber handgun from Ronald Lee.                     Lee testified

that he went to Scooters to sell the gun to Saleh but that Al

Sabahi took cash from the register and purchased the firearm.

The government also produced the receipt that Lee had made out

to Al Sabahi.            Although Al Sabahi correctly points out that

other receipts show that Lee sold the firearm to Saleh, Saleh

testified that he asked Lee to rewrite the receipt because Al

Sabahi was an illegal alien who could not lawfully purchase a

gun.    Once again, we must favor the jury’s interpretation of the

evidence    as    long    as   that   interpretation       is    reasonable.     See

                                           15
Moye, 454 F.3d at 394.             Because the jury’s conclusion that Al

Sabahi possessed the .380-caliber handgun on May 9, 2007, was

reasonable,       we    conclude   that    the   evidence      was    sufficient    to

support Al Sabahi’s conviction on Count Three.



                                           V.

      For the foregoing reasons, we hold that (1) the district

did   not   err    in    determining      that   Al   Sabahi    was    illegally    or

unlawfully present in the United States; (2) the district court

did   not   commit       any   Confrontation      Clause    violation;     and     (3)

substantial evidence supports the jury’s verdict in this case.

We therefore affirm Al Sabahi’s conviction.

                                                                           AFFIRMED




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