United States v. Guerrero

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
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November 22, 2000
Before SMITH, BENAVIDES, and
DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Delbert Guerrero appeals his conviction of
knowingly making a false statement in
connection with the attempted acquisition of a
firearm. Finding no reversible error, we
affirm.
I.
Guerrero was under felony indictment when
he walked into a store, completed an ATF
Form 5300.35 (ATF form)1 with false
information, and handed it to Amelia Bado,
who did business as a federally licensed
firearms dealer. He was soon to be under
indictment again, this time for violating 18
U.S.C. § 922(a)(6), which declares it unlawful
for any person in connection with the
acquisition or attempted acquisition of
any firearm or ammunition from a
1 This is otherwise known as a “Brady form” or
a “statement of intent to obtain a handgun(s).”

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lic e n s e d i m p o r t e r , l i c e n s e d
manufacturer, licensed dealer, or
licensed collector, knowingly to make
any false or fictitious oral or written
statement or to furnish or exhibit any
false, fictitious, or misrepresented
identification, intended or likely to
deceive such importer, manufacturer,
dealer, or collector with respect to any
fact material to the lawfulness of the sale
or other disposition of such firearm or
ammunition under this chapter[.]
Because the indictment did not allege that the
statement was intended to deceive the firearms
dealer, the government was bound to prove
that the statement was likely to deceive the
dealer.2 To the satisfaction of the jury, the
government did so.
II.
A.
Guerrero stipulated all but two of the facts
necessary for conviction, agreeing that Bado
was a federally licenced firearms dealer; that
Guerrero completed and signed ATF Form
5300.35, in which he indicated that he was not
under indictment or information for a felony;
that he signed a receipt and tendered $10 to
the store as part of completing and submitting
the ATF Form 5300.35; and that he knowingly
answered falsely about not being under a
felony indictment. These stipulations allowed
the court and jury to focus on the two issues
Guerrero raises on appeal.
First, he challenges the sufficiency of the
evidence as to whether his admittedly false
statement was likely to deceive, given Bado’s
pattern of abiding by the Brady Act. Second,
he argues that the evidence was insufficient to
prove that he “attempted” to buy a firearm
from the dealer and that, at best, it
demonstrated that he took only preliminary
steps toward a purchase. Essentially, Guerre-
ro insists that § 922(a)(6) is an “attempt”
crime, requiring the government to prove that
he intended to buy a gun and that he took a
“substantial step,” beyond mere preparation,
toward buying it. See United States v.
Mandujano, 499 F.2d 370, 376 (5th Cir.
1974).
B.
When considering these challenges, which
originated in Guerrero’s motion for judgment
of acquittal, we apply a de novo standard of
review. See United States v. de Leon, 170
F.3d 494, 496 (5th Cir.), cert. denied, 120
S. Ct. 156 (1999). We review the sufficiency
of the evidence by examining all the evidence
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
is such that a rational trier of fact could have
found the requisite elements of the offense
beyond a reasonable doubt. Id.
III.
Guerrero argues that the statement on the
form was not likely to deceive the dealer, be-
cause the dealer was certain to abide by the
Brady Act and complete the required
background check. The fact that the Brady
2 See United States v. Adams, 778 F.2d 1117,
1124-25 (5th Cir. 1985) (holding that because the
§ 922(a)(6) indictment charged that the defendant
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
address); see also United States v. Robles-Vertiz,
155 F.3d 725, 728 (5th Cir. 1998) (reasoning that
“the government may not obtain an indictment
alleging certain material elements or facts of the
crime, then seek a conviction on the basis of a
different set of elements or facts.”).

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Act requires a dealer to check a potential gun
buyer’s criminal history, however, does not ex-
onerate one who intentionally misstates his
criminal background. The Brady Act is better
understood as a backstop to catch errors or
false statements, rather than a safety net for
those who make false statements on a federal
firearms form but want to do so in a manner
that does not violate § 922(a)(6).
Guerrero also contends that we should ap-
pend a duration requirement to the deception
and hold that the deception must last beyond
completion of the Brady check. The record
shows that Guerrero immediately deceived
Bado, who processed the form and accepted
the $10 deposit for a firearm and would not
have done so if Guerrero had indicated his real
criminal status.
Guerrero’s argument then becomes that he
is not liable for vain deceit. The fact that a lie
may not have been ultimately successful, how-
ever, does not negate the criminal act. There
is sufficient evidence to support the verdict,
which is not an affront to the language of the
statute: Evidence of immediate, even if
temporary, deception supports a conviction
under a statute that looks for whether a
statement is “likely to deceive.”
IV.
Although this court has not opined on
whether § 922(a)(6) can be treated as an at-
tempt crime once a material, false statement
has been made, the treatment of this question
in United States v. Brozyna, 571 F.2d 742 (2d
Cir. 1978), is persuasive. There, the court
overturned the dismissal of a § 922(a)(6)
count for failure of the government to prove
“attempted acquisition” after it had charged
“acquisition.” See id. at 745. The court first
noted that § 922(a)(6) does not create two
separate crimesSSone in connection with the
acquisition and the other in connection with
the attempted acquisition of a firearm. Id.
The court continued:
The [district] court appears to have been
led into error by the language of the statute
itself: the phrase “in connection with the
acquisition or attempted acquisition of any
firearm” invites analysis in terms of the law
of attempt. This invitation is delusory. The
statute creates a single offense, the
gravamen of which is the use of deceit in
order to obtain a firearm. As the Supreme
Court explained in Huddleston v. United
States, 415 U.S. 814, 824-25 . . . (1974),
Section 922(a)(6) . . . was enacted as a
means of providing adequate and
truthful information about firearms
transactions. Information drawn from
records kept by dealers was a prime
guarantee of the Act’s effectiveness in
keeping “these lethal weapons out of the
hands of criminals, drug addicts,
mentally disordered persons, juveniles,
and other persons whose possession of
them is too high a price in danger to us
all to allow.” 114 Cong. Rec. 13219
(1968) (remarks of Sen. Tydings).
Thus, any false statement with respect to
the eligibility of a person to obtain a
firearm from a licensed dealer was made
subject to a criminal penalty.
The phrase “in connection with the acqui-
sition or attempted acquisition of any fire-
arm” does not suggest an intent on the part
of Congress to create separate offenses.
Rather, it indicates that Congress deemed it
to be immaterial whether the firearm was
ultimately acquired. The legislative history
contains no discussion of the meaning of

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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.”)

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