Appeal from the United States District Court for the Central District of California Florence-Marie Cooper, District Judge, Presiding D.C. No. CR 09-00456-FMC
November 4, 2010-Pasadena, California
Before: Mary M. Schroeder and Richard C. Tallman, Circuit Judges, and John A. Jarvey, District Judge.*fn1
Javier Anaya-Acosta ("Anaya-Acosta") appeals his December 3, 2009 conviction for being an illegal alien in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(5)(A). Anaya-Acosta argues that, because he was subject to a departure control order issued pursuant to 8 C.F.R. § 215.2, he was not illegally in the United States, as required for a conviction under § 922(g)(5)(A), when he possessed the firearm and ammunition. He contends that the district court erred in denying his motion for judgment of acquittal and that it improperly instructed the jury as to whether he was legally within the United States.
Because we find that the issuance of a departure control order does not modify an alien's immigration status and is not equivalent to being paroled into the United States, we affirm Anaya-Acosta's conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Anaya-Acosta is a native and citizen of Mexico, and he admitted to entering the United States without inspection on or about December 17, 1997. On July 27, 2007, an immigration judge issued an order granting Anaya-Acosta the opportunity to voluntarily depart before August 2, 2007, with an alternative order of removal. However, on October 17, 2007, Immigration and Customs Enforcement ("ICE") served Anaya-Acosta with a departure control order that required him to remain in the country until its revocation. The order was issued at the request of the Los Angeles Police Department because Anaya-Acosta was a material witness in a state murder case. Anaya-Acosta was not held in custody while he awaited that trial.
While under the departure control order, Anaya-Acosta was arrested in California on May 8, 2009 for being an illegal alien in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(5)(A). Anaya-Acosta admitted to possessing the loaded firearm and to being a native and citizen of Mexico. At trial, he challenged only the illegality of his presence in the United States. He argued that the departure control order, which temporarily prohibited him from leaving the United States, rendered him legally within the country when ...