United States v. Portillo-Saravia ( 2022 )

Case: 21-20104 Document: 00516186169 Page: 1 Date Filed: 01/31/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 31, 2022
No. 21-20104
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Blademir Portillo-Saravia,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-650-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Jose Blademire Portillo-Saravia, a native and citizen of El Salvador,
was convicted after a jury trial of one count of being an alien illegally and
unlawfully present in the United States in possession of a firearm and
ammunition, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2).
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-20104
First, Portillo-Saravia challenges the district court’s denial of his
motion to dismiss the indictment on the basis that § 922(g)(5)(A) is
unconstitutionally vague and the court should have applied the rule of lenity.
We review a district court’s denial of a motion to dismiss an indictment de
novo. United States v. Arrieta, 862 F.3d 512, 514 (5th Cir. 2017). Questions
of statutory interpretation are likewise reviewed de novo. Id.Section 922(g)(5)(A) makes it 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.” § 922(g)(5)(A). The
terms “illegally” and “unlawfully” are not defined by the statute. See United
States v. Orellana, 405 F.3d 360, 365 (5th Cir. 2005). Nevertheless, we have
interpreted the phrase “illegally or unlawfully in the United States” to refer
to an alien “whose presence within the United States is forbidden or not
authorized by law.” Id. at 366. Our “precedent reveals that immigration
‘status’ is the key factor in determining the applicability of
[§] 922(g)(5)(A).” Arrieta, 862 F.3d at 515.
Portillo-Saravia’s presence within the United States was unlawful at
the time of his entry. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Although he was
deemed an unaccompanied alien child upon his arrival, this categorization
did not afford him any lawful status. See 6 U.S.C. § 279(g)(2). Notably, at
the time of the instant offense, Portillo-Saravia was an adult. His pending
asylum application also did not constitute a defense to § 922(g)(5)(A). In
cases where the defendant does not hold lawful status and has a pending
immigration application, we have held the statute sufficiently clear to uphold
prosecution under § 922(g)(5)(A). See, e.g., United States v. Lim, 897 F.3d
673, 683-84 (5th Cir. 2018); United States v. Elrawy, 448 F.3d 309, 314 & n.5
(5th Cir. 2006); United States v. Lucio, 428 F.3d 519, 524-26 (5th Cir. 2005).
Accordingly, Portillo-Saravia’s attempt to show ambiguity in his immigration
status and in § 922(g)(5)(A) to trigger the rule of lenity is unavailing, and the
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No. 21-20104
district court did not err in denying his motion to dismiss the indictment. See
Arrieta, 862 F.3d at 514.
Next, Portillo-Saravia argues that the district court violated his Sixth
Amendment and due process rights by not submitting to the jury whether he
was illegally or unlawfully present in the United States. The omission of an
element from a jury charge is subject to harmless-error analysis. See United
States v. Brooks, 681 F.3d 678, 704 (5th Cir. 2012). “The Constitution gives
a criminal defendant the right to have a jury determine, beyond a reasonable
doubt, his guilt of every element of the crime with which he is charged.”
United States v. Gaudin, 515 U.S. 506, 522-23 (1995). However, a district
court is not required to submit all issues to a jury, and, instead, “the pertinent
inquiry . . . is whether that issue depended upon the probative value of the
evidence.” United States v. Vidaure, 861 F.2d 1337, 1340 (5th Cir. 1988).
Whether Portillo-Saravia’s presence in the United States was
authorized by law was dependent on the applicable immigration statutes, our
precedent, and the legal issues he presented in his motion to dismiss the
indictment. We have found similar inquiries to be questions of law. See Lim,
897 F.3d at 684 & n.19. Here, the district court ruled as a matter of law that
Portillo-Saravia was “illegally or unlawfully in the United States” for
purposes of § 922(g)(5)(A). The court then correctly charged the jury to
decide whether Portillo-Saravia knew that he was illegally or unlawfully in
the United States. See Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).
The jury instructions were legally accurate and “clearly instruct[ed] the
jurors.” United States v. Fairley, 880 F.3d 198, 208 (5th Cir. 2018).
Moreover, his conclusory contention that defense counsel was precluded
from presenting evidence on this element is unpersuasive, and nothing in the
record suggests that he was unable to present a complete defense such that
his Sixth Amendment and due process rights were violated. See Kittelson v.
Dretke, 426 F.3d 306, 319 (5th Cir. 2019).
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Finally, Portillo-Saravia raises a preserved sufficiency challenge to his
conviction, which we review de novo. See United States v. Carbins, 882 F.3d
557, 562-63 (5th Cir. 2018). Despite his arguments to the contrary, the
evidence at trial, which included his statements at the time of his arrest, was
sufficient to prove Portillo-Saravia knew that he was illegally or unlawfully in
the United States at the time of the offense. See United States v. Vargas-
Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc).
AFFIRMED.
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