17-3337-cr United States v. Balde UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2018 Argued: November 6, 2018 Decided: June 13, 2019 Docket No. 17-3337-cr UNITED STATES OF AMERICA, Appellee, — v. — SOULEYMANE BALDE, Defendant-Appellant. B e f o r e: HALL and LYNCH, Circuit Judges, and GARDEPHE, District Judge.* Souleymane Balde, a citizen of Guinea, appeals his conviction for one count of unlawful possession of a firearm by an “alien . . . [who] is illegally or unlawfully in the United States,” in violation of 18 U.S.C. § 922(g)(5)(A). He * Judge Paul G. Gardephe, of the United States District Court for the Southern District of New York, sitting by designation. challenges his conviction on two grounds. First, he argues that at the time he possessed the firearm he was not “in” the United States because he had not “entered” the United States as that term is defined for the purposes of immigration law, and second, he argues that even if he was “in” the United States, he was not present “illegally or unlawfully.” Finding both arguments unavailing, we AFFIRM the judgment of the district court. MATTHEW B. LARSEN, Federal Defenders of New York, New York, NY, for Defendant-Appellant Souleymane Balde. ELINOR TARLOW, Assistant United States Attorney (Anna M. Skotko, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY. GERARD E. LYNCH, Circuit Judge: Souleymane Balde pled guilty to one count of unlawful possession of a firearm by an “alien . . . [who] is illegally or unlawfully in the United States,” in violation of 18 U.S.C. § 922(g)(5)(A). On appeal, Balde argues that the charge against him must be dismissed for two reasons. First, he argues that to be “in the United States” within the meaning of the criminal statute, a noncitizen must have “entered” the United States as that term is defined in immigration law, and that merely being physically present within our borders does not suffice. Second, he 2 argues that, even if he was “in” the United States when he possessed a firearm, he was not then here “illegally or unlawfully,” given the particular circumstances of his release from immigration detention and his immigration status. Because we find both arguments unavailing, we AFFIRM the judgment of the district court. BACKGROUND Souleymane Balde is a citizen of Guinea. He first arrived in the United States as a child, without lawful immigration status. In May 2005, Balde sought to adjust his status to become a lawful permanent resident, apparently pursuant to the terms of a class action settlement agreement.1 To qualify for adjustment of status, Balde had to be interviewed by the United States Citizenship and Immigration Services (”USCIS”). His interview was originally scheduled for December 1, 2005. Several months after applying, however, Balde learned that his mother was 1 Balde claimed that he applied under the LULAC (Newman) settlement agreement. That agreement “allow[ed] for those who meet certain requirements to apply ...
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