IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 99-21087
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DELBERT LEE GUERRERO,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
November 22, 2000
Before SMITH, BENAVIDES, and Form 5300.35 (ATF form)1 with false
DENNIS, Circuit Judges. information, and handed it to Amelia Bado,
who did business as a federally licensed
JERRY E. SMITH, Circuit Judge: firearms dealer. He was soon to be under
indictment again, this time for violating 18
Delbert Guerrero appeals his conviction of U.S.C. § 922(a)(6), which declares it unlawful
knowingly making a false statement in
connection with the attempted acquisition of a for any perso n in connection with the
firearm. Finding no reversible error, we acquisition or attempted acquisition of
affirm. any firearm or ammunition from a
I.
Guerrero was under felony indictment when 1
This is otherwise known as a “Brady form” or
he walked into a store, completed an ATF a “statement of intent to obtain a handgun(s).”
lic e n s e d i m p o r t e r , l i c e n s e d answered falsely about not being under a
manufacturer, licensed dealer, or felony indictment. These stipulations allowed
licensed collector, knowingly to make the court and jury to focus on the two issues
any false or fictitious oral or written Guerrero raises on appeal.
statement or to furnish or exhibit any
false, fictitious, or misrepresented First, he challenges the sufficiency of the
identification, intended or likely to evidence as to whether his admittedly false
deceive such importer, manufacturer, statement was likely to deceive, given Bado’s
dealer, or collector with respect to any pattern of abiding by the Brady Act. Second,
fact material to the lawfulness of the sale he argues that the evidence was insufficient to
or other disposition of such firearm or prove that he “attempted” to buy a firearm
ammunition under this chapter[.] from the dealer and that, at best, it
demonstrated that he took only preliminary
Because the indictment did not allege that the steps toward a purchase. Essentially, Guerre-
statement was intended to deceive the firearms ro insists that § 922(a)(6) is an “attempt”
dealer, the government was bound to prove crime, requiring the government to prove that
that the statement was likely to deceive the he intended to buy a gun and that he took a
dealer.2 To the satisfaction of the jury, the “substantial step,” beyond mere preparation,
government did so. toward buying it. See United States v.
Mandujano, 499 F.2d 370, 376 (5th Cir.
II. 1974).
A.
Guerrero stipulated all but two of the facts B.
necessary for conviction, agreeing that Bado When considering these challenges, which
was a federally licenced firearms dealer; that originated in Guerrero’s motion for judgment
Guerrero completed and signed ATF Form of acquittal, we apply a de novo standard of
5300.35, in which he indicated that he was not review. See United States v. de Leon, 170
under indictment or information for a felony; F.3d 494, 496 (5th Cir.), cert. denied, 120
that he signed a receipt and tendered $10 to S. Ct. 156 (1999). We review the sufficiency
the store as part of completing and submitting of the evidence by examining all the evidence
the ATF Form 5300.35; and that he knowingly in the light most favorable to the verdict. See
United States v. Thomas, 120 F.3d 564, 569
(5th Cir. 1997). We will affirm if the evidence
2
See United States v. Adams, 778 F.2d 1117, is such that a rational trier of fact could have
1124-25 (5th Cir. 1985) (holding that because the found the requisite elements of the offense
§ 922(a)(6) indictment charged that the defendant beyond a reasonable doubt. Id.
misrepresented his name, it was reversible error for
the court to allow evidence of, and charge the jury
on, the defendant’s misrepresentations as to his
III.
address); see also United States v. Robles-Vertiz, Guerrero argues that the statement on the
155 F.3d 725, 728 (5th Cir. 1998) (reasoning that form was not likely to deceive the dealer, be-
“the government may not obtain an indictment cause the dealer was certain to abide by the
alleging certain material elements or facts of the Brady Act and complete the required
crime, then seek a conviction on the basis of a background check. The fact that the Brady
different set of elements or facts.”).
2
Act requires a dealer to check a potential gun separate crimesSSone in connection with the
buyer’s criminal history, however, does not ex- acquisition and the other in connection with
onerate one who intentionally misstates his the attempted acquisition of a firearm. Id.
criminal background. The Brady Act is better The court continued:
understood as a backstop to catch errors or
false statements, rather than a safety net for The [district] court appears to have been
those who make false statements on a federal led into error by the language of the statute
firearms form but want to do so in a manner itself: the phrase “in connection with the
that does not violate § 922(a)(6). acquisition or attempted acquisition of any
firearm” invites analysis in terms of the law
Guerrero also contends that we should ap- of attempt. This invitation is delusory. The
pend a duration requirement to the deception statute creates a single offense, the
and hold that the deception must last beyond gravamen of which is the use of deceit in
completion of the Brady check. The record order to obtain a firearm. As the Supreme
shows that Guerrero immediately deceived Court explained in Huddleston v. United
Bado, who processed the form and accepted States, 415 U.S. 814, 824-25 . . . (1974),
the $10 deposit for a firearm and would not
have done so if Guerrero had indicated his real Section 922(a)(6) . . . was enacted as a
criminal status. means of providing adequate and
truthful information about firearms
Guerrero’s argument then becomes that he transactions. Information drawn from
is not liable for vain deceit. The fact that a lie records kept by dealers was a prime
may not have been ultimately successful, how- guarantee of the Act’s effectiveness in
ever, does not negate the criminal act. There keeping “these lethal weapons out of the
is sufficient evidence to support the verdict, hands of criminals, drug addicts,
which is not an affront to the language of the mentally disordered persons, juveniles,
statute: Evidence of immediate, even if and other persons whose possession of
temporary, deception supports a conviction them is too high a price in danger to us
under a statute that looks for whether a all to allow.” 114 Cong. Rec. 13219
statement is “likely to deceive.” (1968) (remarks of Sen. Tydings).
Thus, any false statement with respect to
IV. the eligibility of a person to obtain a
Although this court has not opined on firearm from a licensed dealer was made
whether § 922(a)(6) can be treated as an at- subject to a criminal penalty.
tempt crime once a material, false statement
has been made, the treatment of this question The phrase “in connection with the acqui-
in United States v. Brozyna, 571 F.2d 742 (2d sition or attempted acquisition of any fire-
Cir. 1978), is persuasive. There, the court arm” does not suggest an intent on the part
overturned the dismissal of a § 922(a)(6) of Congress to create separate offenses.
count for failure of the government to prove Rather, it indicates that Congress deemed it
“attempted acquisition” after it had charged to be immaterial whether the firearm was
“acquisition.” See id. at 745. The court first ultimately acquired. The legislative history
noted that § 922(a)(6) does not create two contains no discussion of the meaning of
3
the term “acquisition,” id. at 826 . . ., but
it is apparent that Congress decided to
add “attempted acquisition” in order to
close a potential loophole that might
otherwise have been available to
defendants such as Brozyna. Congress
used both “acquisition” and “attempted
acquisition” in order to treat them alike,
not differently. This construction of the
statute is bolstered by an examination of
[§] 924(a), which provides the penalty for
violations of the deceit provisions of the
Act. That sect ion does not distinguish
between, or even mention, cases where
the weapon is acquired and those in which
it is not; the penalty is the same in either
situation . . . . [T]he trial court’s
instruction that the government needn’t
prove “that she actually acquired or came
into possession of the firearm” was
consistent with the statute, and the jury’s
guilty verdict was likewise consistent with
the charge and with the proof offered at trial.
Id.
This analysis is persuasive.3 The district
court properly denied the motion for acquittal
and entered a judgment of conviction.
AFFIRMED.
3
See also United States v. Gardner, 605 F.2d
1076, 1077 (8th Cir. 1979) (“The offense is com-
mitted whether or not a firearm is acquired.”)
4