United States v. Elrawy

United States Court of Appeals
Fifth Circuit
F I L E D
April 26, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-20123
Summary Calendar
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
IBRAHIM HASSAN ELRAWY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:03-CR-29-ALL
______________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ibrahim Elrawy appeals his conviction of
violating 18 U.S.C. § 922(g)(5)(B) by being an
alien admitted under a nonimmigrant visa who
possessed a firearm (count one) and of vi-
olating id. § 922(g)(5)(A) by being an alien
illegally present in the United States who
possessed a firearm (count two). We affirm as
to count two, reverse as to count one, vacate
the sentence, and remand.1
1 Elrawy also appeals the denial of his motion
for new trial. The district court did not set forth
reasons for denial. The government contends the
motion was properly denied because it was un-
timely.
(continued...)

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2
I.
A.
Elrawy is a native and citizen of Egypt who
was admitted to the United States on a non-
immigrant visa on May 17, 1994. The visa
authorized him to remain in the United States
not more than six months, so he was required
to depart on or before November 16, 1994.
He did not depart, and therefore his stay in the
United States was “unauthorized” as of No-
vember 17, 1994.
In December 1994 Elrawy married an Am-
erican citizen, Laura Reynolds Fucich, who
filed on Elrawy’s behalf an I-130 petition,
which requests that a spouse or family member
be granted legal status to remain in the United
States. Elrawy then filed an I-485 application
whereby he requested adjustment of his status
to that of a lawful permanent resident.
In a January 1996 interview with immigra-
tion officials, Fucich confessed that her union
with Elrawy was a marriage of convenience
that had never been consummated. Fucich
withdrew her I-130 petition, and Elrawy was
served with a notice to show cause and was
placed in deportation proceedings in 1996.
In July 1996, Elrawy was notified that he
won an immigration “lottery” for fiscal year
1997, which might have allowed him to obtain
a diversity visa and gain legal status if he filed
a timely visa petition and satisfied other crite-
ria. Elrawy, however, filed a petition that was
too early, and then another one that was too
late, so he did not gain legal status through the
lottery.
After divorcing Fucich, Elrawy married an-
other American citizen, Angela Rosenbaum;
together they have a daughter. In August
1998, Rosenbaum filed on Elrawy’s behalf an
I-130 petition that the Immigration and Nat-
uralization Service (“INS”) approved on June
25, 1999. At trial an INS agent testified that
the grant of the I-130 petition still stood but
that it had not been granted properly, appar-
ently because Elrawy had had a fraudulent
marriage. The INS agent agreed, however,
that the grant of the I-130 petition placed Elra-
wy “on the path to getting a visa.”
In March 2000 Elrawy openly purchased a
gun from a sporting goods store. He filed the
required paperwork, furnishing, among other
things, information concerning his country of
citizenship and address. He correctly showed
the required information, except that he did
not provide his immigration “A-number” and
did not specify that he was illegally in the Unit-
ed States; these omissions supposedly were
because he thought the approval of the visa
petition and the pendency of his adjustment of
status application meant he was lawfully in the
United States.
Elrawy was approved to receive a gun
based on his criminal background check, be-
cause he had no convictions. He also applied
for a state gun permit and again provided all
the required information. There is no dispute
that he purchased a gun that had traveled in
interstate commerce as required by the statute
of conviction.
1(...continued)
Where a motion for new trial is based on any
reason other than newly discovered evidence, it
must be filed within seven days after the verdict or
finding of guilt. FED. R. CRIM. P. 33(b)(2). El-
rawy’s motion did not purport to rely on newly
discovered evidence. Because the motion, filed on
January 23, 2004, was not filed within seven days
of the July 16, 2003, verdict, it was properly
denied as untimely.

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3
B.
At trial Elrawy moved, at the close of the
government’s case, for judgment of acquittal
pursuant to Federal Rule of Criminal Proce-
dure 29. He argued, as to count one, that his
nonimmigrant visa had expired in 1994, and
thus, under a proper interpretation of the rele-
vant statutory language, he could not be con-
victed under § 922(g)(5)(B) based on his pur-
chase of a weapon in March 2000. The dis-
trict court disagreed. At to count two, Elrawy
argued that he was in the United States legally
because of his wife’s approved visa petition.2
The jury returned a guilty verdict on both
counts. The district court sentenced Elrawy to
a concurrent 21-month terms of imprisonment
on each count and to a three-year term of su-
pervised release. He was fined $40,000 and
was given a special assessment of $200.
II.
Both of Elrawy’s convictions were under
subparts of § 922(g)(5), which makes it un-
lawful for any person “who, being an alienSS
(A) is illegally or unlawfully in the United
States; or (B) except as provided in subsection
(y)(2), has been admitted to the United States
under a nonimmigrant visa (as that term is
defined in section 101(a)(26) of the Immigra-
tion and Nationality Act (8 U.S.C. 1101-
(a)(26)))” to posses a firearm that has traveled
in interstate commerce. § 922(g)(5). Elrawy
argues that at the time of the gun purchase, he
was not “admitted to the Unites States under
a nonimmigrant visa” because his visa had
expired, and that he was not “illegally or un-
lawfully” in the United States, because he had
filed an application for adjustment of status.
These are both legal issues of statutory inter-
pretation and so are reviewed de novo.
United States v. Santos-Riviera, 183 F.3d 367,
369 (5th Cir. 1999).
III.
The terms “illegally and unlawfully,” as
used in § 922(g)(5)(A), are not specifically de-
fined in the criminal statutes or immigration
statutes or regulations. These terms must
therefore be given their ordinary and natural
meanings. United States v. Orellana, 405
F.3d 360, 365-66 (5th Cir. 2005).
In Orellana we observed that “‘[d]iction-
aries are a principal source for ascertaining the
ordinary meaning of statutory language.’” Id.
We explained that, read in the context of
§ 922(g)(5)(A), the dictionary definitions indi-
cate that an alien “illegally or unlawfully in the
United States” is an alien whose presence
within the United States is “forbidden or not
authorized by law,” id., and we noted that this
definition is consistent with our description of
an illegal alien as one who is “‘in the United
States without authorization,’” id. at 366 n.36
(citing United States v. Igbatayo, 764 F.2d
1039, 1040 (5th Cir. 1985)). This is also con-
sistent with the statutory definition, in immi-
gration statutes, of the term “unlawful pres-
ence” as presence in the United States after
2 As to count two, Elrawy also argued that the
superseding indictment charged him with possess-
ing a weapon on or about March 11, 2003, rather
than 2000. He objected to an amendment of the
indictment and sought permission to argue to the
jury that the evidence did not show possession as of
the date charged in the indictment.
The district court refused to allow Elrawy to
make that argument, and it indicated that it would
instruct the jury that the date as to count two
should read March 11, 2000. Elrawy renewed his
motion for a judgment of acquittal after he formally
rested. The district court instructed the jury that
there had been a “typographical error” and inserted
the date “March 11, 2000,” into the indictment for
count two.

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4
expiration of the period of the stay authorized
by the Attorney General or presence in the
United States without being admitted or pa-
roled. See 8 U.S.C. § 1182(a)(9)(B)(ii).
In Orellana we also looked to the structure
and purposes of the statute and noted that they
support the view that Congress sought to rule
broadly to keep guns out of the hands of those
who have demonstrated that “‘they may not be
trusted to possess a firearm without becoming
a threat to society.’” Orellana, 405 F.3d at
366 n.36. Illegal aliens are likely to be in that
category because they are “‘likely to maintain
no permanent address in this country, elude
detection through an assumed identity,
and—already living outside the law—resort to
illegal activities to maintain a livelihood.’” Id.
We noted that Orellana, who had entered
the country illegally, nevertheless later re-
ceived Temporary Protected Status (“TPS”)
and thus was “unlike illegal aliens who attempt
to avoid detection.” Id. Rather, he revealed
his “whereabouts to the government” and was
authorized to secure employment, id., so he
was not “part of an underground population of
persons, who, unable to secure lawful employ-
ment, have a greater likelihood to engage in
criminal conduct,” id. Because aliens who
receive TPS are allowed to remain in the
United States and work and are allowed to ap-
ply for adjustment of status as if they pos-
sessed lawful non-immigrant status, we found
that Orellana was not unlawfully present in the
United States.
Elrawy relies on United States v. Brissett,
720 F. Supp. 90 (S.D. Tex. 1989), which held
that an alien who was charged under § 922(g)-
(5)(A), but who had a pending application for
adjustment to permanent residence status,
could not be found to be unlawfully within the
United States. The court in Brissett recog-
nized that an alien who filed an application for
adjustment was not “without authorization” to
stay in the United States. Id. at 91. Rather, he
was permitted to remain in the country while
his application was pending and was permitted
to seek employment authorization, and, con-
sistent with the operating instructions promul-
gated by the INS, deportation proceedings
could not be initiated. Id.
In United States v. Flores, 404 F.3d 320,
327 n. 11 (5th Cir. 2005), we declined to ad-
dress whether Brissett was correctly decided,
but we rejected Brissett in United States v. Lu-
cio, 428 F.3d 519 (5th Cir. 2005), in which we
held that a formerly illegal alien who applies
for adjustment of status is not in lawful status
merely because he is allowed to remain in the
United States while his application is pending.
We concluded that “the submission of an ap-
plication does not connote that the alien’s im-
migration status has changed, as the very real
possibility exists that the INS will deny the
alien’s application altogether.” Id. at 525.
Lucio, who had entered the country ille-
gally, remained unlawfully and illegally in the
United States for purposes of § 922(g)(5)(A).
Id. at 526. Elrawy acquired illegal or unlawful
status when he remained in the United States
after the expiration of the authorized stay on
November 16, 1994.3
Thus, under Lucio, because Elrawy ac-
quired unlawful status on account of his over-
stay, his unlawful status did not change merely
3 8 U.S.C. § 1182(a)(9)(B)(ii); Orellana, 405
F.3d at 365-66 (explaining that an alien is “ille-
gally or unlawfully in the United States” is an alien
whose presence within the United States is “forbid-
den or not authorized by law”).

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5
by his filing the application for adjustment of
status, and he is not insulated from prosecu-
tion under § 922(g)(5)(A). The fact that his
wife’s I-130 petition in his favor was approved
is also of no avail, because the approval of the
petition is only one step in the application for
adjustment of status.4
The answer implicitly given in Lucio is that
an alien who has acquired unlawful or illegal
status (either by overstaying a visa or illegally
crossing the border without admission or par-
ole) cannot relinquish that illegal status until
his application for adjustment of status is ap-
proved.5 We are bound by Lucio, which gives
primacy to the applicant’s legal status before
he files an application for adjustment of status,
as opposed to his current status (permitted to
stay in the United States during the pendency
of such application),6 so the conviction under
§ 922(g)(5)(A) is affirmed.
IV.
Count one is a different matter. It charged
a violation of § 922(g)(5)(B), which criminal-
izes possession of a firearm by an alien who
“has been admitted to the United States under
a nonimmigrant visa.” As the government
correctly notes, it is beyond cavil that Elrawy
was admitted to the United States on a nonim-
migrant visa for a period of six months in
1994, that his nonimmigrant visa expired in
November 1994, and that he possessed a fire-
arm in 2000. The real issue is thus one of stat-
utory interpretation: Does § 922(g)(5)(B) ap-
ply where the defendant’s nonimmigrant visa
has expired before his possession of the fire-
arm and he is thus in the United States ille-
4 To obtain an immigrant visa based on mar-
riage to a United States citizen, the American
spouse must first file a Form I-130 Petition for
Alien Relative to establish his or her relationship to
the spouse who seeks to immigrate to the United
States. See 8 U.S.C. §§ 1151, 1154. If immigra-
tion officials approve the I-130 application, the
alien spouse must then file a Form I-485 Applica-
tion To Register for Permanent Residence or Ad-
just Status. See 8 U.S.C. § 1255.
5 See also United States v. Bazargan, 992 F.2d
844, 848- 49 (8th Cir. 1993) (holding that an alien
was subject to § 922(g)(5)’s firearm disability even
though he had filed an asylum petition, because
“the employment authorization did not have the
effect of converting Bazargan back into a legal
alien”).
6 Not all courts follow this approach. As rea-
soned by the court in United States v. Hernandez,
913 F.2d 1506, 1513-14 (10th Cir. 1990),
(continued...)
6(...continued)
Because aliens in the process of applying for le-
galization of their immigration status may not
be deported, 8 U.S.C. §§ 1160(d) & 1255a(e),
they are not unlawfully in the United States and
thereby subject to prosecution under §
922(a)(6). Consequently, to be prosecuted
under § 922(g)(5), an alien seeking amnesty
under 8 U.S.C. § 1160 or § 1255 must either
receive a firearm before filing an amnesty ap-
plication or after such application is denied.
See also United States v. Bravo-Muzquiz, 412
F.3d 1052, 1055 (9th Cir. 2005):
In United States v. Garcia, 875 F.2d 257 (9th
Cir. 1989), we held that an alien who had not
been legally admitted to enter the United States
and who had not applied for legal status at the
time he possessed a firearm was “illegally or
unlawfully in the United States” for purposes of
section 922(g)(5). Id. at 257-58. Implicitly
this recognizes that had Garcia applied for legal
status prior to his possession of the firearm he
would not have been at that time an alien ille-
gally or unlawfully in the United States.

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gally?
The government argues that even if the visa
had expired and Elrawy was here illegally after
the expiration, he could be convicted under
both §§ 922(g)(5)(A) and 922(g)(5)(B) be-
cause there is no violation of the prohibition
against multiple punishments for the same of-
fense, in light of the fact that each prong of the
statute requires something that the other does
not. This argument, however, was flatly re-
jected in United States v. Munoz-Romo, 989
F.2d 757 (5th Cir. 1993), which the govern-
ment fails to cite. In that case, which we de-
cided after a contrary opinion had been sum-
marily reversed by the Supreme Court,7 we
held that “the language and structure of Sec-
tion 922(g) disclose Congress’s clear intent
not to impose cumulative punishments when
the same incident violates two subdivisions of
subsection (g).”
In Munoz-Romo we relied on the factually
similar United States v. Winchester, 916 F.2d
601 (11th Cir. 1990), in which the court noted
that application of the Blockburger test would
yield a different result, but the court found the
statute’s structure and legislative history
“plainly expressed contrary view on the part of
Congress” that supported the defendant’s in-
terpretation. Id. at 606- 07 (quoting Garrett
v. United States, 471 U.S. 773, 779 (1985)).
We noted that this type of case is unlike
Blockburger, which addressed a situation in
which Congress had criminalized different ac-
tions, in different statutes, at different times;
we observed that Congress had created § 922
and its structure in one enactment, signaling
that “it did not intend multiple punishments for
the possession of a single weapon.” Munoz-
Romo, 989 F.2d at 759.
We agreed with the Eleventh Circuit that to
conclude otherwise would mean that “a con-
victed felon who is also a fugitive from justice,
a drug addict, a ‘mental defective,’ and an
illegal alien, could be sentenced to five con-
secutive terms of imprisonment for the same
incident, namely, possession of a firearm.” Id..
Rather, the statute’s structure, and the fact
that Congress provided criminal penalties for
the violation of subsection (g) of § 922 but did
not list separate penalties for the separate
subdivisions of subsection (g), indicated that
Congress sought “only to bar the possession of
firearms by certain types of persons that it
considered dangerous,” and not to punish
persons “solely for having a certain status
under the law.” Winchester, 916 F.2d at 605-
07.
Double jeopardy for the convictions under
§§ 922(g)(5)(A) and 922(g)(5)(B) is not an
issue here, however, because it is not raised on
appeal. Nonetheless, the analysis in Munoz-
Romo and Winchester with respect to Con-
gress’s intent not to impose cumulative pun-
ishments is instructive.
The appropriate starting point when inter-
preting any statute is its plain meaning. United
States v. Ron Pair Enters., Inc., 489 U.S. 235,
242 (1989). “In ascertaining the plain meaning
of the statute, the court must look to the
particular statutory language at issue, as well
as the language and design of the statute as a
whole.” K Mart Corp. v. Cartier, Inc., 486
U.S. 281, 291 (1988). “It is axiomatic that
statutes . . . are to be interpreted, to the maxi-
mum extent possible, so as to be consistent
and harmonious.” Airline Pilots Ass’n Int’l v.
Taca Int’l Airlines, S.A., 748 F.2d 965, 969
(5th Cir. 1984). 7 See Munoz-Romo v. United States, 506 U.S.
802 (1992).

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Because Elrawy “has been admitted . . . un-
der a nonimmigrant visa” in 1994, he could
conceivably fall within the ambit of § 922-
(g)(5)(B) notwithstanding the fact that such
visa had expired before he possessed a firearm.
But, as his attorney argued at trial, under this
interpretation of the statute even a non-immi-
grant who became a lawful permanent alien
and has not left the United States since his
initial admittance under a non-immigrant visa
could be prosecuted, because he is an alien
who has been admitted under a non-immigrant
visa. That result would be absurd.
Therefore, it is implicit that an event that
changes the alien’s legal non-immigrant status
—either from that of lawful non-immigrant to
lawful immigrant (permanent resident) or from
lawful non-immigrant to unlawful immi-
grant—renders this provision unavailable as to
him. This is especially so given that an un-
lawful immigrant is already covered by § 922-
(g)(5)(A).
That is to say, the structure of the statute
supports the position Elrawy took in the dis-
trict court in moving for judgment of acquittal
on count one. Aliens “illegally or unlawfully”
in the United States are prohibited from pos-
sessing firearms under § 922(g)(5)(A), but ali-
ens admitted on nonimmigrant visas (and
hence not illegally or unlawfully in the United
States) are prohibited frompossessing firearms
under § 922(g)(5)(B), with certain exceptions.
See § 1915(y)(2).8
Because “‘[s]pecific words within a statute
. . . may not be read in isolation of the remain-
der of that section or the entire statutory
scheme,’” Davis v. Fechtel, 150 F.3d 486, 488
(5th Cir. 1998) (citation omitted), only aliens
who were admitted to the United States on a
non-immigrant visa and maintain lawful “non-
immigrant” status can be prosecuted under
§ 922(g)(5)(B). Aliens no longer in lawful
non-immigrant status (1) are not to be prose-
cuted if they purchased the gun after they ac-
quired lawful immigrant status and (2) can be
prosecuted under § 922(g)(5)(A) if they pur-
chased the gun after they acquired unlawful
status.
In the absence of evident congressional in-
tent to render conduct such as Elrawy’s sub-
ject to prosecution under both § 922(g)(5)(A)
and § 922(g)(5)(B), our interpretation is also
supported by the rule of lenity, which “rests on
the fear that expansive judicial interpretations
will create penalties not originally intended by
the legislature.” Winchester, 916 F.2d at 605-
07 (citing 3 N. SINGER, SUTHERLAND STATU-
TORY CONSTRUCTION § 59.03 (4th ed. 1986)).
It is “an outgrowth of our reluctance to in-
crease or multiply punishments absent a clear
and definite legislative directive.” Simpson v.
United States, 435 U.S. 6, 15-16 (1978). By
the application of lenity, courts “‘will not
interpret a federal criminal statute so as to
increase the penalty that it places on an indi-
vidual when such an interpretation can be
based on no more than a guess as to what
Congress intended.’” Id. at 15 (quoting Lad-
ner v. United States, 358 U.S. 169, 178
(1958)).9
8 Section 922(g)(5)(B) contains an exception
for various limited classes of aliens, including those
admitted to the United States for lawful hunting or
sporting purposes, and “foreign law enforcement
officer[s] of a friendly foreign government entering
the United States on official law enforcement
business.” See § 922(g)(5)(B), (y)(2).
9 For purposes of this statute, a lawful non-
immigrant who applies for adjustment of status re-
mains an alien “admitted . . . under a nonimmigrant
(continued...)

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The judgment of conviction on count two is
AFFIRMED, and the conviction on count one
is REVERSED. The judgment of sentence is
VACATED, and this matter is REMANDED
for resentencing and any other appropriate
proceedings.
9(...continued)
visa” because only the approval of the adjustment
of status would change his status from that of
“admitted . . . under a nonimmigrant visa” to that
of a lawful permanent resident. Such alien may be
an immigrant for the purposes of other statutes
(because he has abandoned the intention to return
to the home country), but this statute looks to his
“admittance visa.”

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