                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 02 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                       No. 09-50242

               Plaintiff - Appellee,             D.C. No. 3:08-CR-01169-WQH

   v.
                                                 MEMORANDUM *
 MIGUEL MENDIOLA-MARTINEZ,

               Defendant - Appellant.



                     Appeal from the United States District Court
                       for the Southern District of California
                     William Q. Hayes, District Judge, Presiding

                            Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Miguel Mendiola-Martinez appeals from his jury-trial conviction for being

an illegal alien in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(5)(A)

and 924(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

NC/Research
       Mendiola-Martinez contends that the district court erred by instructing the

jury that filing an application for adjustment of immigration status does not make a

defendant “legally present” for purposes of determining whether he violated

18 U.S.C. § 922(g)(5)(A). This contention fails because Mendiola-Martinez’s

pending I-485 application for adjustment of status does not affect his removability,

and Mendiola-Martinez points to no statute that renders his presence lawful based

upon his application for adjustment of status. See United States v. Latu, 479 F.3d

1153, 1155, 1159 (9th Cir. 2007); see also United States v. Smith, 561 F.3d 934,

938-39 (9th Cir. 2009) (holding that the sufficiency of a jury instruction is subject

to harmless error review).

       AFFIRMED.




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