United States v. Emilio Padilla

Case: 15-40180 Document: 00513325195 Page: 1 Date Filed: 12/30/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-40180 December 30, 2015
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EMILIO PADILLA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CR-747-2
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Emilio Padilla appeals the jury’s verdict finding him guilty of two counts
of being an alien unlawfully present in the United States in possession of a
firearm, a violation of 18 U.S.C. § 922(g)(5)(A). Although Padilla has been
released from custody, his appeal is not moot because he challenges his
conviction, which is presumed to have collateral consequences. See Spencer v
Kemna, 523 U.S. 1, 8 (1998); see also United States v. Villamonte-Marquez, 462
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-40180
U.S. 579, 581 n.2 (1983) (noting that appeal not moot due to potential adverse
immigration consequences).
Padilla’s argument that the Government failed to prove venue is without
merit because the jury heard testimony that the firearms were found in Alamo,
Texas, which is in the Southern District of Texas. Cf., United States v.
Winship, 724 F.2d 1116, 1124 (5th Cir. 1984) (recognizing that venue is
established if the trial is in the same district as the crime’s commission).
Padilla offered no authority, in either the district court or this court,
disputing the immigration official’s testimony that he was in the United States
without authorization. His argument that the Government failed to show that
he was illegally or unlawfully in the United States is thus without merit. See
United States v. Orellana, 405 F.3d 360, 366 (5th Cir. 2005) (footnote and
citation omitted). Moreover, this court has recognized that an alien who has
acquired unlawful or illegal status does not relinquish that status merely
because he is allowed to remain in the United States while an application for
adjustment of status is pending. See United States v. Elrawy, 448 F.3d 309,
314 (5th Cir. 2006).
The Government established that Padilla claimed ownership of the
firearms and admitted physically handling them, and that he had access to the
safe in which the firearms were discovered. Based on such, a rational trier of
fact could easily have found beyond a reasonable doubt that Padilla possessed
the firearms. See United States v. Hagman, 740 F.3d 1044, 1048 (5th Cir.
2014). The Government also established that the firearms were manufactured
in Austria and that they travelled across state lines. Although the Government
was not required to establish that the firearms were operable, it provided
testimony supporting such a finding. See United States v. Ruiz, 986 F.2d 905,
910 (5th Cir. 1993).
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Case: 15-40180 Document: 00513325195 Page: 3 Date Filed: 12/30/2015
No. 15-40180
To the extent that Padilla sought to raise the issue whether the district
court erred in not granting a mistrial, the issue is insufficiently briefed and is
thus waived. See United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006).
AFFIRMED.
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