Defendant-Appellant Juan Ochoa-Colchado (Defendant) entered a conditional guilty plea to one count of possession of firearms while being an alien illegally or unlawfully in the United States, in violation of 18 U.S.C. § 922(g)(5)(A). 1 Prior to pleading guilty, Defendant moved to dismiss the indictment, arguing that he was not in the United States illegally within the meaning of the statute. The district court denied this motion. On appeal, Defendant renews his argument that he was not in this country illegally at the time of the firearm possession, and he also contends that 18 U.S.C. § 922(g)(5)(A) is unconstitutionally vague as applied to him. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I.
Defendant is a native and citizen of Mexico. He unlawfully entered the United States as early as 1989, and was convicted of illegal entry in violation of 8 U.S.C. § 1325 in 1993. Defendant was not deported and remained in this country. In October 2002, the government initiated removal proceedings against him. In response, on October 25, 2002, Defendant filed a Form EOIR-42B, “Application for Cancellation of Removal and Adjustment of Status,” pursuant to section 240A(b)(l) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(l). At all times relevant to this case, this application was still pending before an immigration judge. 2 The parties agree that the government will not deport an alien after he has filed such an application unless and until an immigration judge denies the application. Defendant also applied for an Employment Authorization Document (EAD) under 8 C.F.R. § 274a.l2(c)(10), which would allow him to work while residing in the United States. Based on his pending application for adjustment of status, Defendant received an EAD on November 21, 2002, and has renewed it on a yearly basis.
On June 3, 2006, the police stopped Defendant for a traffic violation, and subsequently arrested him after he performed poorly on field sobriety tests. While searching Defendant’s vehicle, officers discovered a loaded handgun and ammuni *1294 tion. After receiving Miranda warnings, Defendant stated that he had three other guns at his home. The following day, officers searched Defendant’s home pursuant to a valid search warrant and discovered ten additional firearms.
On June 14, 2006, a grand jury indicted Defendant on one count of possessing eleven firearms while being an alien illegally or unlawfully in the United States, in violation of 18 U.S.C. § 922(g)(5)(A). Defendant moved to dismiss the indictment, arguing that he could not be prosecuted under § 922(g)(5)(A) because “aliens in the process of applying for legalization cannot be deported [and] are not unlawfully in the United States.” Mot. to Dismiss, Supp. Vol. I, at 1. The district court denied the motion, concluding that a pending application for adjustment of status, even when coupled with the receipt of an EAD, did not render Defendant’s presence in the United States legal or permit his possession of firearms.
After the district court denied his motion to dismiss the indictment, Defendant entered a conditional guilty plea, in which he reserved his right to appeal the denial of his motion. Defendant was subsequently sentenced to twelve months and a day of incarceration, to be followed by twenty-four months of supervised release. On appeal, Defendant again argues that he was not in the United States illegally at the time he possessed the firearms, and also argues that § 922(g)(5)(A) is unconstitutionally vague as applied to the facts of his case.
II.
Under 18 U.S.C. § 922(g)(5)(A), an alien who “is illegally or unlawfully in the United States” is prohibited from possessing any firearms or ammunition. The phrase “illegally or unlawfully in the United States,” which is the focus of this appeal, is not defined by statute. The district court concluded that Defendant’s pending application for adjustment of status, which permitted him to remain in the country temporarily, did not render his presence in this country lawful, even when coupled with the receipt of an EAD. Because the issue presented turns on the proper interpretation of § 922(g)(5)(A), our review is
de novo. United States v. Atandi,
In
United States v. Hernandez,
which was also an alien-in-possession case, we suggested that “[b]ecause aliens in the process of applying for legalization of their immigration status may not be deported, they are not unlawfully in the United States” for purposes of § 922(g)(5)(A).
United States v. Hernandez,
Our decision in
United States v. Atandi
suggests that Defendant was not legally in the United States by virtue of the stay of his removal proceedings. In
Atandi
The facts of Atandi parallel those in the instant case. While Atandi entered the country legally and only later lost his legal status, Defendant was here illegally from the outset. The government instituted removal proceedings against both Atandi and Defendant, and permitted both to remain in the country until the proceedings were finalized. Were we to conclude that Defendant was legally in the country while Atandi was not, our only justification for distinguishing Defendant from Atandi would be Defendant’s unilateral action in filing an application for adjustment of status. This result is not compelling.
Defendant attempts to distinguish
Atandi
by arguing that this case is more analogous to cases that involve aliens granted Temporary Protected Status (TPS) under 8 U.S.C. § 1254a. Defendant relies primarily upon
United States v. Orellana,
If we were to accept Defendant’s argument that his status is similar to that of an alien granted TPS, we would have to reject other holdings set forth in
Orellana.
The
Orellana
court expressly considered whether its reasoning extended to cases like the one before us, and concluded that it did not. The court noted that in a prior case, it had held that an alien who had received temporary benefits on account of his pending TPS application was not lawfully present in the United States for purposes of § 922(g)(5)(A).
Orellana,
Orellana
provides no support for Defendant as it rejects Defendant’s position, and concludes that an alien’s unlawful presence in the United States becomes lawful only after the alien’s application for adjustment of status is actually approved.
See United States v. Elrawy,
Further, in a later case with facts almost identical to those of the instant case, the Fifth Circuit refined its position, making clear that Defendant would not be entitled to relief under that circuit’s precedent. In
United States v. Lucio,
The Ninth Circuit has also held that the filing of an application for adjustment of status does not legalize an alien’s presence in the United States.
Latu,
Defendant also argues that the policy considerations underlying
Orellana
are applicable here. The
Orellana
court noted that section 922’s purpose was to keep firearms “out of the hands of those typically considered dangerous or irresponsible.”
Our adoption of Defendant’s position would lead to untenable results for a number of parties — including aliens who are in the same position as Defendant. According to Defendant’s view, an alien who has applied for adjustment of status would be in the United States “legally,” and thus able to possess firearms, only until his application was denied. At that point, the alien would automatically become a felon by virtue of his possession of the firearms, despite the probability of the alien’s having little or no prior notice of when the gov
*1298
ernment intends to deny his application. To permit aliens to legally possess firearms pending the resolution of their applications for adjustment of status would compromise the safety and security of U.S. citizens and residents because those aliens would be able to obtain firearms during the pendency of their applications — and they would still have those weapons upon being forced “underground” when their applications are denied. Cf.
Atandi,
An alien who has filed for adjustment of status and received an EAD may in some sense be “authorized” to be in the United States, inasmuch as he is granted a temporary reprieve from removal proceedings and permitted to work here pending the outcome of his case. But there is a distinction to be drawn between tolerating an alien’s presence for a limited purpose and legalizing an alien’s presence. The Fifth Circuit recognized that distinction, and its description of the status of an alien whose application is pending as a sort of “stasis” is as good a description as can be found in any case.
See Lucio,
III.
Defendant also argues that § 922(g)(5)(A) is unconstitutionally vague as applied to the facts of his case because “the language of the statute ... in combination with the ambiguous status of an alien who has applied for adjustment in
*1299
status, [did] not adequately give notice to [Defendant] that he was committing a crime.” Aplt. Br. at 12. In order for Defendant to argue this theory on appeal, he must not have waived it by pleading guilty.
United States v. Anderson,
This analysis calls for the court of appeals, in reviewing appeals brought after a defendant has entered into an appeal waiver, to determine: (1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appeal rights; and (3) whether enforcing the waiver would result in a miscarriage of justice
Id.
(quoting
United States v. Hahn,
When considering whether an appeal falls within the scope of a waiver of appellate rights, the general rule is that any appellate rights not expressly reserved in the plea agreement are waived. See id. at 957-58. The question here, then, is whether the reservation of appellate rights in Defendant’s plea agreement extends to the argument that § 922(g)(5)(A) is unconstitutionally vague as applied to this case. It plainly does not. In his plea agreement, Defendant reserved only the right to appeal the district court’s denial of his motion to dismiss. A reservation of the right to appeal a specific pretrial ruling by the district court extends only to theories raised in the challenged ruling. Id. at 958. The only argument Defendant made to the district court in his motion to dismiss was that he was not illegally or unlawfully in this country.
In his reply brief, Defendant contends that he did raise the vagueness issue in his motion because he argued that the rule of lenity should inform the district court’s construction of § 922(g)(5)(A). Because the rule of lenity and the void-for-vagueness doctrine are “related manifestations of the fair warning requirement,”
United States v. Lanier,
As regards the second and third prongs of Hahn, the defendant has the burden of showing that he did not knowingly and voluntarily waive his appellate rights, or that enforcing the waiver would result in a miscarriage of justice. Id. at 958-59. Defendant has not carried his burden in either regard. He has offered no argument whatsoever on these points, and there is nothing in the record from which this court could conclude that Defendant’s waiver was not informed and voluntary, or that a miscarriage of justice would result were the waiver enforced. We conclude that Defendant, in pleading guilty, waived his right to raise his as-applied vagueness argument on appeal.
*1300 IV.
The judgment of the district court denying Defendant’s motion to dismiss the indictment is AFFIRMED.
Notes
. As is pertinent here, 18 U.S.C. § 922(g)(5)(A) provides that "[i]t shall be unlawful for any person ... who, being an alien ... is illegally or unlawfully in the United States ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition...."
. The parties disagree as to whether Defendant filed a second application in May 2006. The district court stated that he did, and Defendant's brief asserts that he did — but Defendant conceded before the district court that he had not done so. See Def.’s Reply in Supp. of Mot. to Dismiss, Supp. Vol. I, Doc. 20, at 2 n. 2; id. Ex. 1, at 4 ¶ 8. Whether he filed a second application is irrelevant for our purposes. The issue presented turns on whether a pending application for adjustment of status renders an alien's presence in the United States lawful for purposes of 18 U.S.C. § 922(g)(5), and it is undisputed that Immigration & Customs Enforcement had still not taken action on the first application at the time Defendant possessed the firearms in question.
. Defendant apparently takes issue with this result, pointing to a footnote in an Eleventh Circuit case that states that “[i]ndividuals legally present in the United States and in the process of becoming a legal resident are eligible for EAD cards, while those illegally in the U.S. are not.”
United States v. Ciarrochi,
. We also note 27 C.F.R. § 478.11, promulgated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Section 478.11 defines an "alien illegally or unlawfully in the United States” as an alien who is "not in valid immigrant, nonimmigrant, or parole status,” including any alien "who unlawfully entered the United States without inspection and authorization by an immigration officer and who has not been paroled into the United States ...” Like other courts, we are reluctant to give great deference to this construction, in part because immigration is not the ATF's area of expertise and in part because the degree of deference owed to constructions of criminal statutes is uncertain.
See Orellana,