Gun Conviction for Illegal Alien Affirmed; Pending Application Defense Rejected

US v. Ochoa-Colchado, No. 07-4023, 4/11/08 (published) - Defendant was convicted of unlawful entry in 1993 but remained in the country. The government finally initiated removal proceedings in 2002, in response to which the defendant applied for cancellation of removal and adjustment of status, which was pending at all relevant times. He was therefore allowed to remain in the US while his application was pending. He also applied for and got an Employment Authorization Document (EAD). Then he got arrested for DWI and a gun was found in his car. More were found in his house, pursuant to a valid search warrant. He was charged with unlawful possession of firearms by an illegal alien, in violation of 18 USC Sec. 922(g)(5)(A). He filed a motion to dismiss on the ground that his pending application, which allowed him to remain in the country while it was pending, meant that he was not illegally or unlawfully in the country. The district court denied the motion and the defendant conditionally pled, reserving the right to appeal the denial of his motion.

The 10th affirmed, Reviewing this purely legal issue de novo, the 10th abandoned its "suggestion" in US v. Hernandez, 913 F.2d 1513 (10th Cir. 1990) that the defendant's position was correct, which it now concludes was dicta because the defendant in that case filed his application after he received firearms, unlike poor Mr. Ochoa-Colchado. This position is in line with the "greater weight of authority" on the issue. It also rejected the defendant's alternative argument that Sec. 922(g)(5)(A) was unconstitutional as applied to him because the language of the statute, combined with the ambiguity of his status, did not adequately put him on notice that he was committing a crime by possessing guns. The argument was not one that the defendant reserved the right to challenge on appeal, in spite of his argument below that the rule of lenity supported his position, and was therefore waived by his guilty plea. The waiver was enforceable because his waiver was knowing and voluntary, and enforcing it would not result in a miscarriage of justice.