Alien-In-Possession of Firearm, Ammo Convictions Affirmed

U.S. v. Gambino-Zavala, -- F.3d --, 2008 WL 3892073 (10th Cir. 8/25/08) - police sweep of apartment where multiple gunshots were reported by multiple 911 calls early in the morning was justified by exigent circumstances and motion to suppress was rightfully denied. After police knocked on apartment door for several minutes, Mr. Gambino-Zavala opened it and said no one else was there. Officers reasonably concluded that an injured victim could be inside and that there was an immediate need to search to protect the safety of others. They went in and discovered a shotgun and ammunition. Gambino-Zavala was convicted of unlawful possession of a firearm and ammunition by an illegal alien. The district court's requests that the gov't present more testimony to support the enhancements he wanted to impose did not bespeak actual bias or the appearance of bias. There was sufficient evidence to support enhancement for an offense involving 3-7 guns found in apartment closets and under a bed because Gambino-Zavala had access to all areas, co-signed the lease, and was listed on the lease as a resident. The sentence was also appropriately enhanced for possession of a gun used in connection with distribution of heroin found in the apartment.