United States v. Amelo-Rodriguez , 324 F. App'x 390 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 1, 2009
No. 08-60780 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ALEJANDRO AMELO-RODRIGUEZ
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
No. 1:08-CR-22-ALL
Before REAVLEY, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Defendant Alejandro Amelo-Rodriguez challenges his conviction and
sentence under 18 U.S.C. § 922(g)(5) for possessing a firearm as an alien
unlawfully in the United States. We AFFIRM for the following reasons.
1. We need not resolve whether a misrepresentation by a federally-licensed
firearms dealer regarding the legality of a defendant’s gun ownership may
form the basis of an entrapment-by-estoppel defense, because the evidence
did not support this defense. “‘The [entrapment-by-estoppel] defense
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-60780
applies when a government official tells a defendant that certain conduct
is legal and the defendant commits what would otherwise be a crime in
reasonable reliance on the official’s representation.’” United States v.
Ortegon-Uvalde, 179 F.3d 956, 959 (5th Cir. 1999) (quoting United States
v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18 (11th Cir. 1994) (emphasis
added)). The record reflects that Defendant never sought or obtained
authorization to remain in the United States after his status as a
temporary parolee admitted for humanitarian reasons under 8 U.S.C.
§ 1182(d)(5)(A) expired on August 16, 1997 and was automatically
terminated. See 8 C.F.R. § 212.5(e)(1)(ii). His statement on the firearms
application form in October, 2005 that he was not an alien illegally in the
United States was therefore false. Having failed to apprise the firearms
dealer of this material fact, Defendant could not have reasonably relied on
any alleged misrepresentation by the dealer that his gun ownership was
legal. See, e.g., United States v. Trevino-Martinez, 86 F.3d 65, 69–70 (5th
Cir. 1996) (holding the failure of an alien to disclose his background of
prior arrests and deportations to the American consulate that issued him
a non-immigrant visa precluded a finding that he reasonably relied on the
supposed misrepresentation that his return to the United States was
legal). Whether Defendant knew of his illegal status is irrelevant. Cf.
United States v. Schmidt, 487 F.3d 253, 254–55 (5th Cir. 2007) (construing
a parallel provision to 18 U.S.C. § 922(g)(5)).
2. For the same reason the court was not in error to exclude the details of the
purchase of the gun and refuse to instruct the jury on the subject.
3. Defendant contends that the district court erred by increasing his base
offense level by four points based on its finding that he possessed the
firearm in connection with another felony, U.S.S.G. § 2K2.1(b)(6). We find
no procedural error with the district court’s sentence. United States v.
2
No. 08-60780
Klein, 543 F.3d 206, 213 (5th Cir. 2008), cert. denied, 129 S. Ct. 1384(2009). In light of the record as a whole, the district court plausibly found
that Defendant had removed doors and windows from the property valued
at over $500, see M ISS. C ODE A NN. § 97-17-41 (grand larceny), did not have
permission to take them, and had done so while keeping the firearm
accessible on the seat of his truck nearby. See, e.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (“There is no clear
error if the district court’s finding is plausible in light of the record as a
whole.” (internal quotation marks and citation omitted)).
AFFIRMED.
3