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United States v. Ali Rehaif

United States Court of Appeals, Eleventh Circuit

August 17, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
HAMID MOHAMED AHMED ALI REHAIF, Defendant-Appellant.

         Appeal from the United States District Court for the Middle District of Florida D. C. Docket No. 6:16-cr-00003-JA-DAB-1

          Before ED CARNES, Chief Judge, WILLIAM PRYOR, and DUBINA, Circuit Judges.

          DUBINA, Circuit Judge

         Hamid Mohamed Ahmed Ali Rehaif ("Rehaif"), a citizen of the United Arab Emirates, appeals his convictions for possessing a firearm and ammunition while being illegally or unlawfully in the United States, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). Rehaif argues that the district court erred by instructing the jury that the government did not have to prove that he knew he was in the United States unlawfully. Rehaif further argues that the district court abused its discretion by failing to instruct the jury that an alien is not unlawfully in the United States until the U.S. Citizenship and Immigration Services ("USCIS") or an immigration judge has declared him unlawfully present. After reviewing the record, reading the parties' briefs, and having the benefit of oral argument, we affirm the convictions.

         I. Background

         The United States issued Rehaif an F-1 nonimmigrant student visa to study mechanical engineering at the Florida Institute of Technology ("FIT") on the condition that he pursue a full course of study-except as otherwise authorized by a "Designated School Official"-or engage in training following graduation. When applying for his F-1 student visa, Rehaif signed a Certificate of Eligibility for Nonimmigrant Student Status, certifying that he agreed to comply with the terms and conditions of his admission and that he sought "to enter or remain in the United States temporarily, and solely for the purpose of pursuing a full course of study."

         After three semesters at FIT, Rehaif was academically dismissed on December 17, 2014. One month later, on January 21, 2015, FIT sent Rehaif an email stating that he had been academically dismissed and that his "immigration status will be terminated on February 5, 2015, unless you transfer out before that date, or you notify our office that you have already left the United States." Rehaif did not take any action. As such, according to the Department of Homeland Security's foreign student database, Rehaif's status was officially terminated on February 23, 2015.

         On December 2, 2015, Rehaif went to a shooting range. He purchased a box of ammunition and rented a firearm for one hour. Videos from the shooting range show Rehaif firing two different firearms. The firearms were manufactured in Austria and then imported into the United States through Georgia. The ammunition was manufactured in Idaho.

         Six days later, an employee at the Hilton Rialto Hotel in Melbourne, Florida, called the police to report that a guest at the hotel-Rehaif-had been acting suspiciously. Special Agent Tom Slone with the Federal Bureau of Investigation went to the hotel to speak with Rehaif. Rehaif admitted, in an unrecorded interview, that he had fired two firearms at the shooting range and that he was aware that his student visa was out of status because he was no longer enrolled in school. Rehaif consented to a search of his hotel room, where the agents found the remaining ammunition that he had purchased at the shooting range.

         A federal grand jury charged Rehaif with two counts of violating § 922(g)(5)(A). That statute provides that:

(g) It shall be unlawful for any person -
. . .
(5) who, being an alien -
(A) 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. . . .

18 U.S.C. § 922(g)(5)(A). Section 922(g) does not itself provide for any punishment. That gap is filled by § 18 U.S.C. § 924(a)(2), which states that:

Whoever knowingly violates subsection . . . (g) . . . of section 922 shall be fined as provided in this title, imprisoned ...

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