United States v. Balde

• Decision Date: 13 November 2019
• Docket Number: Docket No. 17-3337-cr,August Term, 2018
• Parties: UNITED STATES of America, Appellee, v. Souleymane BALDE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

943 F.3d 73

UNITED STATES of America, Appellee,

v.Souleymane BALDE, Defendant-Appellant.

Docket No. 17-3337-cr

August Term, 2018

United States Court of Appeals, Second Circuit.

Argued: November 6, 2018

Decided: November 13, 2019

Matthew B. Larsen, Federal Defenders of New York, New York, NY, for Defendant-Appellant Souleymane Balde.

Elinor Tarlow, Assistant United States Attorney (Anna M. Skotko, Kiersten Fletcher, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.

Before: Hall and Lynch, Circuit Judges, and Gardephe, District Judge.^*

Gerard E. Lynch, Circuit Judge:

Souleymane Balde pled guilty to unlawful possession of a firearm by "an alien ... [who] is illegally or unlawfully in the United States," in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). We initially upheld his conviction, rejecting Balde’s invitation to interpret "in" to mean "entered into" as the latter term is used in immigration law, and concluding that, being physically present in the United States without having been paroled into the country or otherwise given a legal status, Balde was properly considered to be "illegally or unlawfully in the United States" within the meaning of § 922(g)(5)(A).

Eight days after our opinion in this case, the Supreme Court decided Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 2194, 204 L.Ed.2d 594 (2019), holding that, to obtain a conviction pursuant to 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2), the government must prove that the defendant not only knowingly possessed a firearm, but also knew that he or she was "illegally or unlawfully in the United States" at the time he or she possessed the firearm. Balde now petitions for rehearing, arguing that his guilty plea was accepted in error, because he was not advised of the additional knowledge requirement announced in Rehaif , and the record does not contain facts sufficient to satisfy that element of the offense. He asserts that, whatever his legal status at the time he possessed the firearm, he did not know at that time that he was in the United States illegally, and that he therefore is not guilty of violating 18 U.S.C. § 922(g)(5)(A).

Because we conclude that Balde has demonstrated a reasonable probability that he would not have pled guilty to violating § 922(g)(5)(A) as interpreted by the Supreme Court in Rehaif , we GRANT Balde’s petition and withdraw our prior opinion. We reiterate that opinion’s holdings, but VACATE Balde’s conviction and REMAND for further proceedings consistent with this opinion.

BACKGROUND

Souleymane Balde is a citizen of Guinea. He first arrived in the United States as a child, without lawful immigration status. In May 2005, Balde sought to adjust his status to become a lawful permanent resident, apparently pursuant to the terms of a class action settlement agreement.¹ To qualify for adjustment of status, Balde had to be interviewed by the United States Citizenship and Immigration Services ("USCIS"). His interview was originally scheduled for December 1, 2005.

Several months after applying, however, Balde learned that his mother was seriously ill and that unless he traveled to Guinea to visit her soon, he risked missing his last chance to see her alive. He asked his attorney to postpone the interview in order for him to travel abroad. His lawyer told Balde that he would contact USCIS to postpone the interview. The lawyer wrote to USCIS, stating that Balde would be unable to attend his interview due to unforeseen circumstances. Balde also applied for advance parole, a status which allows a noncitizen to travel abroad temporarily and return to the United States without jeopardizing any existing legal status or pending application for immigration relief. USCIS granted advance parole, but did not act on the request to postpone the interview.

Balde did not appear for his scheduled interview, although USCIS had not granted an adjournment and despite the fact that he did not leave the United States until several weeks after the scheduled interview date. On January 27, 2006, while Balde was out of the country, USCIS denied his application for adjustment of status because he had missed his interview and because it determined that the request for postponement submitted by Balde’s attorney did not demonstrate sufficient reason to postpone it. The agency also revoked Balde’s advance parole.

Balde’s mother died on January 28, 2006. On March 17, 2006, Balde flew back to New York City and was stopped at John F. Kennedy International Airport, where Customs and Border Protection ("CBP") agents informed him for the first time that his advance parole had been revoked. CBP agents detained Balde and initiated removal proceedings, charging him as inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I), which applies to noncitizens seeking admission without a valid visa, passport, or other suitable travel document. In due course, an immigration judge issued an order of removal. Balde appealed, first to the Board of Immigration Appeals ("BIA"), which dismissed the appeal, and then to this Court, which granted a stay of removal pending decision.

While his appeal was pending before this Court and his removal was stayed, Balde sought supervised release from detention. The United States Immigration and Customs Enforcement Agency ("ICE") agreed to grant such release, and notified Balde that he would be released under the Intensive Supervision Appearance Program ("ISAP"). First implemented in 2003, ISAP offers an "alternative[ ] to detention for final-order aliens" who are unable to be removed, and provides for electronic monitoring and supervision for program participants. See Nguyen v. B.I. Inc. , 435 F. Supp. 2d 1109, 1112–13 (D. Or. 2006).

Following a remand from this Court on consent of the parties, the BIA again denied relief to Balde on December 19, 2008. Balde did not appeal that decision to this Court, and the order of removal became final. Balde’s Guinean passport expired around that time, however, and the government was therefore unable to effect his deportation. He remained at liberty, under supervision. Immigration officials modified the terms of that supervision in 2012. At no time, however, did Balde hold a visa or other legal authorization to enter the United States, and he remained subject to a final order of removal.

On December 14, 2015 — seven years after his removal order became final — Balde was involved in a fight in a Bronx delicatessen. During the altercation, Balde pulled out a gun and pointed it at others inside the deli. He then left the premises but later drove back to the deli with another individual and fired a single shot into the air out of the passenger side window.

When officers from the New York City Police Department responded to the scene, witnesses identified the car from which the shot had been fired as it pulled up to a nearby intersection. Police officers pursued and stopped the vehicle. Balde got out of the car from the front passenger seat, and was quickly apprehended. A police search discovered four cartridges in Balde’s jacket pocket, and a revolver under the front passenger seat where Balde had been sitting. Witnesses to the deli altercation later identified Balde as the person who had fired the gunshot.

A grand jury indicted Balde on one count of possession of a firearm in violation of 18 U.S.C. § 922(g)(5)(A). He moved to dismiss the indictment. After the district court denied the motion, he pled guilty pursuant to an agreement that preserved his right to appeal the district court’s denial of his motion. The district court sentenced Balde to 23 months’ imprisonment and two years of supervised release.

Balde appealed that decision, arguing that he was not within the category of persons, individuals "illegally or unlawfully in the United States," who are prohibited from possessing a firearm under 18 U.S.C. § 922(g)(5)(A). Agreeing with the district court’s decision concluding otherwise, we affirmed Balde’s conviction.

Before time expired for Balde to seek rehearing, however, the Supreme Court decided Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), holding that in prosecutions pursuant to 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2) the government must prove beyond a reasonable doubt that the defendant knew not only that he possessed a firearm, but also that he was unlawfully present in the United States. Because the latter mens rea element had not previously been recognized, the indictment of Balde did not expressly allege it, Balde was not advised of it by the district court at the time of his plea, and the district court did not identify a factual basis for concluding that Balde had such knowledge.

Balde now petitions the Court for rehearing, arguing that Rehaif requires the dismissal of the charge against him, or at least, in the alternative, vacatur of his guilty plea.

DISCUSSION

18 U.S.C. § 922(g)(5)(A) prohibits "an alien ... illegally or unlawfully in the United States" from possessing a firearm or ammunition. A separate provision, 18 U.S.C. § 924(a)(2), provides that "[w]hoever knowingly violates [ 18 U.S.C. § 922(g)(5)(A) ] shall be fined ..., imprisoned not more than 10 years, or both."

In his original brief on appeal, Balde argues that at the time of the alleged conduct, he did not fall within the category of persons prohibited by § 922(g)(5)(A) from possessing a firearm for two related reasons: first, that under his particular immigration circumstances he was not "in" the United States within the meaning of the statute when he possessed the firearm, and second, that even if he was, he was not here "illegally or unlawfully." In our original opinion, decided on June 13, 2019, we rejected both of Balde’s arguments and concluded that, given the particulars of his immigration status, he was within the category of individuals prohibited from possessing a firearm under 18 U.S.C. § 922(g)(5)(A).² For the reasons set forth in...