United States v. Abduladhim Al Sabahi
2013 U.S. App. LEXIS 11808
4th Cir.2013Background
- Al Sabahi, a Yemeni national, overstayed a U.S. visa and remained in the United States after expiration without authorization.
- He registered with NSEERS in 2003 while removal proceedings were pending due to visa overstay, and later filed an I-485 adjustment of status application.
- A string of firearm-related incidents occurred at Scooters In and Out in Littleton, North Carolina, involving a .9-mm pistol that Al Sabahi purportedly possessed or controlled.
- Police and witnesses connected Al Sabahi to the pistol at multiple points: during a store incident (Feb. 15, 2007) and a traffic stop (Mar. 18, 2007), and he later purchased a .380-caliber handgun (May 9, 2007) with a receipt reflecting his name.
- A four-count superseding indictment (Counts One–Four) charged 922(g)(5)(A) and 924(a)(2) based on the February 15, 2007; March 18, 2007; May 9, 2007; and September 7, 2007 incidents; Al Sabahi was convicted on Counts One–Three and acquitted on Count Four.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sabahi was illegally present for § 922(g)(5)(A) purposes | Sabahi argues he was not illegally present due to NSEERS registration and I-485 filing | United States contends Sabahi remained illegally present until status was resolved | Sabahi was illegally present |
| Whether NSEERS/parole status negates § 922(g)(5)(A) liability | Sabahi was effectively paroled via NSEERS | No valid parole; Sabahi already present; parole not applicable | Parole did not apply; filing I-485 does not negate illegality |
| Whether district court violated Confrontation Clause | Exclusion of questioning about I-485/NSEERS violated confrontation rights | Cross-examination was allowed; the challenged questions were irrelevant | No Confrontation Clause violation |
| Whether evidence supports Counts 1–3 as to possession | Evidence shows Sabahi possessed or controlled the firearms | Evidence insufficient or improperly interpreted | Substantial evidence supports Counts 1–3 |
Key Cases Cited
- United States v. Atandi, 376 F.3d 1186 (10th Cir. 2004) (status-based illegality determinations under § 922(g)(5)(A))
- United States v. Latu, 479 F.3d 1153 (9th Cir. 2007) (status-based illegality determinations under § 922(g)(5)(A))
- United States v. Bazargan, 992 F.2d 844 (8th Cir. 1993) (status-based illegality determinations under § 922(g)(5)(A))
- United States v. Hernandez, 913 F.2d 1506 (10th Cir. 1990) ( dicta on adjustment of status timing in § 922(g)(5) context)
- United States v. Elrawy, 448 F.3d 309 (5th Cir. 2006) (status of aliens after overstay and adjustment applications)
- United States v. Bravo-Muzquiz, 412 F.3d 1052 (9th Cir. 2005) (considering removal proceedings but § 922(g)(5) conviction sustainment)
- United States v. Moye, 454 F.3d 390 (4th Cir. 2006) (juror credibility and evidentiary interpretation in sufficiency review)
- United States v. Cardwell, 433 F.3d 378 (4th Cir. 2005) (standard for reviewing evidence sufficiency)
- United States v. Burgos, 94 F.3d 849 (4th Cir. 1996) (constructive possession standards)