
    UNITED STATES of America, Plaintiff-Appellee, v. Miguel MENDIOLA-MARTINEZ, Defendant-Appellant.
    No. 09-50242.
    United States Court of Appeals, Ninth Circuit.
    Submitted Feb. 16, 2010.
    
    Filed March 2, 2010.
    Anne Kristina Perry, Assistant U.S., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
    Thomas A. Lappin, Esquire, Law Office of Thomas A. Lappin, San Diego, CA, for Defendant-Appellant.
    
      Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Miguel Mendiola-Martinez appeals from his jury-trial conviction for being an illegal alien in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Mendiola-Martinez contends that the district court erred by instructing the jury that filing an application for adjustment of immigration status does not make a defendant “legally present” for purposes of determining whether he violated 18 U.S.C. § 922(g)(5)(A). This contention fails because Mendiola-Martinez’s pending 1-485 application for adjustment of status does not affect his removability, and Mendiola-Martinez points to no statute that renders his presence lawful based upon his application for adjustment of status. See United States v. Latu, 479 F.3d 1153, 1155, 1159 (9th Cir.2007); see also United States v. Smith, 561 F.3d 934, 938-39 (9th Cir.2009) (holding that the sufficiency of a jury instruction is subject to harmless error review).

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     