from the United States District Court for the Middle District
of Florida D. C. Docket No. 6:16-cr-00003-JA-DAB-1
ED CARNES, Chief Judge, WILLIAM PRYOR, and DUBINA, Circuit
DUBINA, Circuit Judge
sua sponte vacate our prior published opinion,
United States v. Rehaif, 868 F.3d 907 (11th Cir.
2017), and substitute this revised opinion in lieu thereof.
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.
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
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.
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.
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.
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,