IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-1932

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EUGENE JESSIE CHAPMAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(October 29, 1993)

Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

This case presents issues under the firearms statutes

including a question of the sufficiency of the proof that a

defendant knew he remained under indictment after his conviction in

a Texas court. We find that the government failed to prove Chapman

knew he was under indictment when he denied it while purchasing a

gun. We reverse his conviction on the two counts that required

this proof. We affirm Chapman's conviction on two counts of

receiving a gun while under indictment. With these two counts, the

government did not have to prove Chapman's knowledge of his legal

status.2 I

The government charged Jesse Eugene Chapman with two counts of

making false statements in connection with the acquisition of

firearms, in violation of 18 U.S.C. § § 922(a)(6), 924(a)(1), and

two counts of receiving firear ms while under indictment, in

violation of 18 U.S.C. §§ 922(n), 924(a)(1)(D).

On February 13, 1991, Chapman was convicted of burglary, a

state crime punishable by imprisonment for over one year. He

received ten years probation. He appealed. While his appeal was

pending, Chapman purchased a Cobray M-11 9 millimeter pistol from

a federally licensed firearm shop. He signed ATF form 4473,

answering "no" when asked whether he was "under indictment" for any

crime punishable by imprisonment for over one year. Police later

arrested Chapman for assault with the Cobray pistol.

While the appeal was pending, and a few days later, Chapman

purchased a .22 caliber pistol and a .38 caliber Derringer from the

same gun shop. Chapman again completed ATF form 4473, making the

same response. Police later arrested Chapman for speeding. Police

searched his car finding the loaded Derringer, the .22 caliber

pistol, and crack cocaine in small plastic bags.

The district court deni ed a motion to dismiss the firearms

charges for failure to state an offense. A jury convicted on all

counts. Chapman appealed. We affirm two counts, and reverse two

counts.3 II

The government charged Chapman with knowingly making a false

statement when he answered "no" to the "under indictment" question,

and with acquiring a firearm while "under indictment." He argues

that the evidence did not show that he was "under indictment" or

that he knew about his status when he purchased the firearms.

Under 18 U.S.C. § 922(a)(6), the government must prov e that

Chapman knowingly made a false statement to a federal ly licensed

firearms dealer with respect to a fact material to the lawfulness

of the sale. Under 18 U.S.C. § 922(n), the government must prove

that Chapman was "under indictment" and that he willfully purchased

the firearms.

The federal firear ms statute defers to state law on the

definition of "conviction." That definition, the government says,

implicitly defines " u nder indictment": "[W]hat constitutes a

conviction of such a crime shall be determined in accordance with

the law of the jurisdiction in which the proceedings were held."

18 U.S.C. § 921(20)). Under Texas law, though convicted and

sentenced, Chapman remained "under indictment" during the appeal of

his conviction. J ohnson v. State

, 784 S.W.2d 413, 414 (Tex. Crim.

App. 1990).

It was stipulated that Chapman had been indicted, stood trial,

and been found guilty and sentenced for the state burglary offense;

that Chapman had appealed his burglary conviction. There was

evidence that he purchased the firearms during the pendency of his

appeal.4

Whether the government proved sufficient facts to demonstrate

that Chapman knowingly made a false statement in response to the

" under indictment" question is more problematic. The government

had to prove that Chapman knew he was "under indictment" to prove

that he knowingly made a false statement.

The government points to the fact that his appeal bond stated,

" Appeal Bond (After Indictment--Felony--Personal Bond),"

maintainin g that this epigraph advised Chapman that he remained

"under indictment" while on bond during the pendency of his appeal.

This document, however, proves nothing, as "After Indictment," if

anything, suggests that Chapman no lo nger remained "under

indictment," but had achieved the status of "convicted felon."

Moreover, the government points to the fact that an ATF agent

questioned Chapman about his purchases while Chapman served time in

jail. After the agent inquired about his response to the "under

indictment" question, Chapman reportedly told the agent, "Well, I

messed up on that one." This statement sheds little light on

whether Chapman knew that he was "under indictment" when he

purchased the firearms.

When the government charges that a defendant knowingly lied

a bout his legal status, it must offer proof that he k new his

status. In a practical sense, ignorance of the law is here a

defense because the charged falsity rests on defendant's untrue

statement of his legal status. Chapman knew what had happened to

him but there was no proof that he knew what the legal label was,

and that's the question the government asked and now says he lied5

about. Of course, "convicted felon" is also a legal

characterization of fact, as are many "factual" matters. Proof of

conviction alone may be sufficient for a jury to infer that

defendant knew of his status as a convicted felon. The rationality

of inferences ultimately rest on common sense--a shorthand that

experience has taught us the probabilities. This ordinarily is a

quintessential jury question. There is a point, however, at which

the status is so beyond common understanding, arcane, and fact to

inference so attenuated, we must find that any inference alone is

not enough.

To be sure, Chapman also stated on ATF form 4473 that he was

not a "convicted felon," and a j ury could have inferred that he

intended to lie in response to that quest ion. The statement was

actually true, however, because under Texas law, Chapman was not a

"convicted felon" during the pendency of his appeal, the government

could not have charged Chapman wi th making a false statement

denying he was a convicted felon. This prosecutor's dilemma is no

more than a creature of the government's form. That the prosecutor

is uncertain of the "correct" response to an essentially legal

question he urges was knowingly and falsely given is a large

warning. It was not heeded.

III

The district court properly denied Chapman's pretrial motion

to dismiss the Section 922(a)(6) and Section 922(n) counts for

failure of the indictment to charge an offense. The indictment

stated an offense under both counts because, as a matter of law,6

Chapman remained "under indictment" following the guilty verdict

and during the pendency of his appeal.

IV

The district court properly charged the jury that Chapman was

"under indictment" when he purchased the firearms. He claims that

this instruction violated his due process right to have the

government prove each element of the Section 922(a)(6) and 922(n)

counts. Chapman and the government, however, stipulated that a

jury had found him guilty of burglary, and that he purchased the

firearms during the pendency of his appeal. With the stipulation

of fact, the legal question of Chapman's status was the only

remaining relevant issue. There was no issue here that would

"depend on the probative value of t he evidence. . . ." U nited

States v. Vidaure

, 861 F.2d 1337, 1340 (1988), cert. denied

, 489

U.S. 1088 (1989).

V

The sentencing guidelines state that the offense level for the

firearms convictions should b e 12 because he was convicted under

Section 922(n). U.S.S.G. § 2K2.1(a)(2) (Nov. 1990). The

guidelines also provide that if a defendant used or possessed a

firearm in connection with the commission or attempted commission

of any other offense, the offense level should be calculated by

applying U.S.S.G. § 2X1.1 (Nov. 1990) if to do so would result in

a higher offense level. U.S.S.G. § 2K2.1(c)(2) (Nov. 1990).

Section 2X1.1 requires application of the guideline for the offense

commit ted with or facilitated by the firearm, including any7

adjustments required by the guidelines for that offense. We reject

Chapman's argument that the district court should h ave applied

U.S.S.G. § 1B1.3(a)(1) (Nov. 1990), concerning "relevant conduct,"

and that his firearms offenses ca nnot meet the definition of

"relevant conduct."

The district court properly determined that the offense level

for the firearm used during the shooting offense was 20, U.S.S.G.

§ 2A2.2 (Nov. 1990), and that the offense level applicable for the

firearms used during a drug offense was 22. U.S.S.G.

§ 2D1.1(a)(3)(C)(15) (Nov. 1990). The court selected the higher

offense level of 22 from the drug offense, reduced it by 2 points

for acceptance of responsibility, and sentenced Chapman using the

offense level of 20.

In addition, Chapman argues that even if the district court

was correct in principle in applying the alternative guideline for

the drug offense, the trial court incorrectly concluded that the

offense was that of possessi on with intent to distribute rather

than simple possession. We disagree, Chapman carried individual

bags of crack and a pistol, evidence that he was prepared for

transactions and trouble in the marketplace.

M o reover, Chapman argues that the district court "double

counted" by including Chapman's state convict ion both in

calculating the offense level and in computing the points for his

criminal history. Chapman, however, waived any error based on this

issue as he failed to raise it either in his written objections to

the pre-sentence report or orally at the sentencing hearing.8

At any rate, though U.S.S.G. § 4A1.2 (Nov. 1990) provides that

a "prior sentence" includes o nly conduct that is not part of the

instant offense, in this case, the instant offense was not the drug

offense, but the unlawful acquisition of the firearms. In other

words, Chapman was not convicted in federal court of the drug

offense, but of the firearms offense. The drug offense entered the

calculation only derivatively.

Our decision to reverse Chapman's conviction on counts 1 and

3 upsets the district court's sentencing plan. We vacate the

sentence imposed and remand to the district court for resentencing

upon counts 2 and 4.

AFFIRMED IN PART and REVERSED and REMANDED IN PART.