     Case: 16-40539   Document: 00514063777        Page: 1   Date Filed: 07/07/2017




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

                                    No. 16-40539
                                                                           Fifth Circuit

                                                                         FILED
                                                                      July 7, 2017

UNITED STATES OF AMERICA,                                           Lyle W. Cayce
                                                                         Clerk
             Plaintiff - Appellee

v.

GUILLERMO SORIANO ARRIETA,

             Defendant - Appellant




                 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
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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.

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      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



      1   18 U.S.C. § 922(g)(5)(A).
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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 relief under DACA rendered Arrieta’s
presence in the United States lawful under Section 922(g)(5)(A).
                                III. Discussion
                                       A.
      On appeal, Arrieta argues that the district court erred in failing to
dismiss the indictment because: (1) his receipt of DACA relief and associated
benefits consisting of work authorization, permission to hold a social security
card and/or driver’s license, and two-year protection from removal render him
legally and lawfully present in the United States; and (2) receipt of these
benefits is sufficient to deprive recipients of fair notice that their presence is
unlawful. He reasons that this court should therefore rely on the rule of lenity
to hold Section 922(g)(5)(A) inapplicable in light of its ambiguity.
      The Government responds that under this court’s case law, immigration
“status” is the crucial factor in determining the application of Section
922(g)(5)(A). It argues that since Arrieta acquired unlawful immigration status
by overstaying his initially valid visa, and since DACA relief by its own terms

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does not confer or otherwise affect immigration status, prosecution under
Section 922(g)(5)(A) is appropriate in this case.
                                       B.
      Section 922(g)(5)(A) decrees that “[i]t shall be unlawful for any person
who, being an alien, is illegally or unlawfully in the United States
to . . . possess in or affecting commerce, any firearm or ammunition.” Although
the statute itself provides no definitional guidance on what it means to be
“illegally or unlawfully in the United States,” see § 921 (defining terms for
purposes of the statute), this court has interpreted that phrase to refer to one
“whose presence within the United States is forbidden or not authorized by
law.” United States v. Orellana, 405 F.3d 360, 366 (5th Cir. 2005). Accordingly,
the question before us is whether an individual in receipt of DACA relief is one
whose presence is forbidden or not authorized by law.
      Although this precise iteration of the question has not been expressly
addressed by a prior panel, its answer lies well within the realm of circuit
precedent pertaining to related matters. This precedent reveals that
immigration “status” is the key factor in determining the applicability of
Section 922(g)(5)(A). In particular, several decisions involving pending
applications for either the congressionally created TPS or for adjustment of
immigration status cite to the absence of lawful immigration status as the
primary factor undergirding the determination that the defendant’s presence
in those cases was unauthorized by law. See United States v. Flores, 404 F.3d
320, 326–28 (5th Cir. 2005) (affording analytical deference ATF regulation
interpreting “illegally and unlawfully” as lacking in lawful immigration status,
and noting that temporary authorization to be in the country for some purposes
does not render a defendant immune to prosecution under Section
922(g)(5)(A)); United States v. Lucio, 428 F.3d 519, 520, 524–25 (5th Cir. 2005)
(affirming that previous case law interpreting Section 922(g)(5)(A) hinged on

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the immigration status of the defendant, and treating the defendant’s unlawful
immigration status as definitive in application of Section 922(g)(5)(A)); United
States v. Elrawy, 448 F.3d 309, 314 (5th Cir. 2006) (treating defendant’s
unlawful immigration status as dispositive factor in application of Section
922(g)(5)(A)). Meanwhile, the primary case Arrieta cites for the proposition
that Section 922(g)(5)(A) is inapplicable rests largely on this court’s
determination that a defendant actually in receipt of TPS possessed a type of
lawful status granted by Congress. See Orellana, 405 F.3d at 370. Thus,
because Arrieta lacks lawful immigration status, he has failed to show
entitlement to relief under the application of these cases.
      Conceding that DACA relief neither confers nor alters any immigration
status, Arrieta argues that the benefits accompanying DACA relief—work
authorization, temporary stay of removal, and authorization to hold a social
security card and/or driver’s license—fostered in him a reasonable perception
of lawfulness that justifies application of the rule of lenity. But the rule of
lenity represents a last resort that “comes into operation ‘at the end of the
process of construing what Congress has expressed, not at the beginning as an
overriding consideration of being lenient to wrongdoers.’” Albernaz v. United
States, 450 U.S. 333, 342 (1981) (quoting Callanan v. United States, 364 U.S.
587, 596 (1961)). It applies only where a statute as applied remains truly
ambiguous after the traditional canons of interpretation have failed. United
States v. Rivera, 265 F.3d 310, 312 (5th Cir. 2001) (per curiam).
      Our circuit has already closely reviewed the text, structure, legislative
history, and motivating policies of Section 922(g)(5)(A). Orellana, 405 F.3d at
365–70. Although the court in Orellana found that the statute remained
ambiguous after deployment of these tools and applied the rule of lenity to
resolve the ambiguity, it was clear that its choice was informed by the fact that
the defendant, who possessed TPS, had a form of lawful status and was in

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possession of benefits that uniquely accompanied that status. See id. at 370. In
cases where the defendant did not hold lawful status, such as Flores, Lucio,
and Elrawy, this court has found the statute sufficiently clear to uphold
prosecution under Section 922(g)(5)(A). Moreover, not only does Arrieta lack
lawful status, but the benefits he claims are virtually identical to the benefits
the defendants claimed in Flores, Lucio, and Elrawy, where this court upheld
prosecution. See, e.g., Lucio, 428 F.3d at 523–24 (noting that defendant
possessed employment authorization and stay of deportation but upholding
prosecution); Flores, 404 F.3d at 323 (noting defendant’s possession of
employment authorization, temporary stay of removal, a social security card
and a Texas identification card but upholding prosecution). What these
defendants lacked, and what Arrieta lacks, is lawful status, and the absence of
such status is controlling. Accordingly, we hold Section 922(g)(5)(A) applicable
here.
                                        C.
        The district court’s written judgment incorrectly states that the statute
of conviction is Section 922(g)(1), rather than Section 922(g)(5)(A), as alleged
in Count One of the superseding indictment. Accordingly, and as requested by
the Government, we reform the judgment to state the correct statute of
conviction. See 28 U.S.C. § 2106; United States v. Mondragon-Santiago, 564
F.3d 357, 369 (5th Cir. 2009).
                                 IV. Conclusion
        For the reasons stated, we AFFIRM the judgment of the district court,
but reform it to reflect conviction under 18 U.S.C. § 922(g)(5)(A).




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