U.S. v. Lucio, 04-20331.

• Decision Date: 12 October 2005
• Docket Number: No. 04-20331.,04-20331.
• Citation: 428 F.3d 519
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Gilberto Rubio LUCIO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 519

428 F.3d 519

UNITED STATES of America, Plaintiff-Appellant, v. Gilberto Rubio LUCIO, Defendant-Appellee.

No. 04-20331.

United States Court of Appeals, Fifth Circuit.

October 12, 2005.

Stephen Mark McIntyre (argued), James Lee Turner, Asst. U.S. Atty., Jeffery Alan Babcock, Houston, TX, for U.S.

Juan Roberto Fuentes (argued), Houston, TX, for Lucio.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, STEWART and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The difficult question presented in this matter lies at the nexus between criminal and immigration law. The United States appeals from the district court's grant of a judgment of acquittal following a jury's verdict which had found Gilberto Rubio Lucio ("Lucio") guilty of possession of a firearm while illegally or unlawfully present within the United States pursuant to 18 U.S.C. § 922(g)(5)(A). Lucio, an alien, had previously entered the country without authorization. He filed an application to adjust his immigration status to that of a lawful permanent resident. During the pendency of his application, he was authorized to work in the United States and deportation proceedings could not be initiated. On this basis, the district court found that Lucio could not be charged with being illegally or unlawfully present within the United States given that he was "authorized" to remain in the county until the Immigration and Naturalization Service's (INS) adjudication of his application. We are constrained to hold that in light of recent precedent, if an alien's immigration status remains unlawful during the pendency of an application to adjust that status, the mere fact that he has received permission to work in the country, and may not be deported, does not alter the initial unlawfulness of his immigration status. Consequently, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

In 2001, federal law enforcement officials began investigating security companies that had been employing illegal aliens as armed security guards for local Houston, Texas area businesses. On June 8, 2003, this investigation led the Bureau of Alcohol, Tobacco, and Firearms (ATF), along with other area law enforcement agencies to the "La Cucaracha" nightclub in Houston, where they encountered Lucio who was working as a security guard. Though Lucio did not have a firearm on his person when law enforcement personnel arrived at the nightclub, they learned that Lucio had discarded his weapon shortly before law enforcement's arrival. A subsequent consensual search of his vehicle recovered a loaded .38 caliber revolver.

Lucio was charged pursuant to § 922(g)(5)(A). The indictment provided that Lucio had illegally possessed the firearm on February 1, 2002.¹ He pled not guilty; a jury trial was held, and on December 3, 2003, a verdict of guilty was rendered. On January 9, 2004, Lucio moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, or in the alternative, a new trial pursuant Federal Rule of Criminal Procedure 33. The basis for Lucio's motion was that because he had filed an application for adjustment of his immigration status which was still pending at the time that he was charged with violating § 922(g)(5)(A), he could not have been deemed to be illegally within the United States because he was lawfully permitted to remain in the country during the pendency of the application.² Significantly, among the privileges afforded to an individual who has applied for adjustment of status is that he is allowed to remain in the country while his application is pending. See Legal Immigration and Family Equity Act, Pub.L. No. 106-554, 114 Stat. 2763, Sec. 1104 (2000) (LIFE Act); see also 8 U.S.C. § 1255a(e). Consequently, he argued, the necessary predicate to be charged under § 922(g)(5)(A) was absent as he was not "illegally or unlawfully" present in the United States.

The district court found Lucio's argument to be availing and granted his motion for judgment of acquittal on March 10, 2004.³ The United States timely appealed arguing that irrespective of the pendency of Lucio's application for adjustment of status, he could still be charged under § 922(g)(5)(A).

STANDARD OF REVIEW

"A motion for judgment of acquittal challenges the sufficiency of the evidence to convict." United States v. Medina, 161 F.3d 867, 872 (5th Cir.1998). When a district court grants a motion for judgment of acquittal pursuant to FED.R.CRIM.P. 29, the determination is not entitled to exceeding deference by this court. United States v. Loe, 262 F.3d 427, 432 (5th Cir.2001). Rather, this court must review the decision de novo, employing the identical standard as did the district court. Id. Under a de novo standard of review, this panel must assess whether a reasonable jury could have properly concluded, weighing the evidence in a light most deferential to the verdict rendered by the jury, that all of the elements of the crime charged had been proven beyond a reasonable doubt. Id. We are not required to analyze the evidence with an eye toward negating every possible inference of innocence, rather, if the fact finder was presented with sufficient evidence to support the verdict reached, that verdict must be upheld. Id.

DISCUSSION

The crux of the government's argument is that despite the fact that Lucio had filed an application to adjust his immigration status to that of a lawful permanent resident — which tolled the INS's ability to deport him, and provided employment authorization until his application was adjudicated — the pendency of the application did not proscribe Lucio from being charged pursuant to § 922(g)(5)(A). Lucio counters by arguing that the district court's grant of the judgment of acquittal was consistent with the basic intent of the LIFE Act's regulatory scheme. Our initial challenge therefore is to determine whether an alien who has filed an application for adjustment of status — which has not yet been acted upon by the INS — is nevertheless lawfully within the United States for the purposes of § 922(g)(5)(A).

A.

It is uncontroverted that Lucio illegally entered into the United States in 1981. In 1986, Congress enacted the Immigration Reform and Control Act (IRCA) in an effort to formally legalize aliens who had illegally entered into the United States prior to January 1, 1982. See 8 U.S.C. 1255a et seq. Under IRCA's terms, the alien had to meet a series of requirements before he could be termed a "lawful permanent resident." See supra, note 2. First, the alien had to file an application for lawful temporary residence, which had to be granted by the INS. See 8 U.S.C. § 1255a(a). Thereafter, only then could the alien have his status adjusted to lawful permanent residence. Id. at § 1255a(b).

Pursuant to IRCA's amnesty provisions, Lucio filed an application to adjust his immigration status within the one year window articulated by the statute — May 5, 1987 and May 4, 1988. See 8 U.S.C. § 1255a(a)(1). Testimony was presented at trial which suggested that his application was rejected by the INS on the basis that the agency had concerns about the fact that Lucio had frequently left the United States in the period of time preceding the filing of his application. Despite the fact that his application was not acted upon, Lucio continued to live and work within United States for a number of years even though, technically, he was unlawfully present in the country given that: (1) he had unlawfully entered the United States, (2) his alien status had not been adjusted, and (3) his IRCA amnesty application had never been ruled upon.

Thereafter, sometime between 1999 and 2000 he apparently filed an application pursuant to the INS's Legalization Questionnaire Program. It is helpful to note that several class action lawsuits were initiated stemming from problems, which occurred in the late 1980's, related to the INS's implementation of IRCA's amnesty provisions. See Catholic Social Services, Inc. v. Meese, vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993); League of United Latin American Citizens v. INS, vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993); and INS v. Zambrano, 509 U.S. 918, 113 S.Ct. 3028, 125 L.Ed.2d 717 (1993). As a result, aliens who filed nonfrivolous amnesty applications in accordance with IRCA, often had their applications improperly denied.

In an effort to remedy these problems, the INS allowed aliens living in the United States in an unlawful status to file legalization questionnaires to determine whether they had been "front-desked" by the INS. The phrase "front-desked" is a term of art describing instances where the INS had denied an alien's IRCA legalization application on the grounds that the applicant had traveled outside the United States in contravention of INS guidelines. See, e.g., Carlos Holguin, Peter A. Schey and Charles Song, Handling "Late" Amnesty Cases: Practice and Procedure Under the INS's Legalization Questionnaire Program, 77 No. 34 Interpreters Releases 1269, 1271 (Sept. 1, 2000). Recognizing that countless aliens seeking amnesty under IRCA had their applications denied on very questionable grounds, the legalization questionnaire was intended to assist the INS to make a determination as to whether it had erroneously "front-desked" an alien during IRCA's amnesty period — May 5, 1987 through May 4, 1988. If the legalization questionnaire was approved by the INS, this would allow the alien to file a legalization application and, thereafter, the INS would issue the alien temporary employment authorization and a stay of deportation until the application was adjudicated. Id. at 1275, 509 U.S. 918; see also 8 C.F.R. § 245a.4(b)(14).

On September 12, 2000, Lucio was informed by the INS that his legalization questionnaire had been reviewed by the INS. The INS stated that...