## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 99-21087

Summary Calendar

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### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### D ELBERT 

### L

EE 

### G UERRERO



### ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

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 un der felony indictment when

he walked into a store, complete d an ATF Form 5300.35 (ATF fo r m) 1 with false

in fo rmation, and handed it to Amelia Bado,

who did business as a federally l icensed

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 p erso n in connection with the

acquisition or attempted acquis it ion 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).”2

l i censed importer, licensed

manufac turer, licensed deal er, or

licensed co l lector, knowingly to make

any false or fictitious oral or written

statement or to furnish or exhi bit any

false, fictitious, or misrepresented

identification, intended o r likely to

deceive such importer, manufacturer,

dealer, or collecto r 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 th e statem ent was l ikely to deceive the

d ealer. 2 To the satisfaction of the jury, t he

government did so.

II.

A.

Guerrero stipulated all but two of the facts

necessary for conviction , agreeing that Bado

was a federally licenced firearms deale r; that

Guerrero completed and signed AT F Form

5300.35, in which he indicated that he was not

under indictment or information for a felony;

that he sig ned 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 j ury to focus on the two i ssues Guerrero raises on appeal.

First, he chal lenges 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 “atte mpt ed” to buy a firearm

from the dealer and that, at best, i t

demonstrate d t hat he took only preliminary

steps toward a purchase. Essentially, Guerrero 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. S ee United States v.

Manduj ano, 4 99 F.2d 370, 376 (5th Cir.

1974).

B.

When consideri ng these challenges, which

originated in Guerrero’s motion for judgment

of a cquit t al, we apply

a d e novo standard of

review. S ee United States v. de Leon

, 170

F.3d 494, 496 (5th Cir .), c ert. denied

, 120

S. Ct. 156 (1999). We review the sufficiency

of the evidence by examining all t he evidence

in the light most favorable to the verdict. See

United States v. Thomas, 1 20 F.3d 564, 5 6 9

(5th Cir. 1997). We will affirm if t he evidence

is such that a rational trier of fact could have

found t he requisite elements of the offense

beyond a reasonable doubt. Id.

III.

Gue rrero argues that the statem ent on the

form was not likely to deceive the dealer, because 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 mi srepresentations 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 obt a in an indictment

alleging certain materia l elements or facts of the

crime, then seek a convicti on on the basis of a

different set of elements or facts.”).3

Act requires a dealer to check a potential gun buyer’s criminal history, however, does not exonerate one who intentionally miss t ates his

criminal background. The Brady Act is better

understood as a backsto p to catch errors or

false statements, rath er 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 append a duration requirement to the deception

and hold that the deception must la st beyond

completion of the Brady chec k. The record

shows that Guerrero immediately d e ceived

Bado, who processed the form and accepted

t he $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, however, does not negate the criminal act. There

is sufficient evidence to support the v erdi ct,

which is not an affront to the language of the

statute: Evidence of immediate, even if

temporary, dec eption supports a conviction

under a statute tha t 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 o nce 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 dism

issal of a § 922(a)(6)

count for failure of the government to prove “attempted acqu isit ion” after it had charged

“acquisition.” S ee id

. at 745. The court first

noted that § 922( a)(6) does not create two separate crimes 

### SS one in connection with the

acquisition and the other in connection with

the attempted acquisition of a firearm. I d.

The court continued:

The [district] court app ears 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 attem pt. This invitation is delusory. The

statute creates a single offense, the

gravamen of whic h is t he 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 deale rs was a prime

guarantee of

t he Act’s effectiveness in

keeping “these lethal weapons out of the

hands o f criminals, drug addicts,

mentally disordered persons, juven iles,

and other persons whose possession of

them is too high a price in danger to us

all to allow.” 114 Cong. Rec. 13219

(19 6 8) (remarks of Sen. Tydings).

Thus, any false statement with respect to

t he eligibilit

y 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 firearm” does not suggest an intent on the part

of Congre ss t o create separate offenses.

Rather, it indicates that Congress deemed it

to be i mmaterial whether the firearm was

ultimately acquired. The legislative history

contains no discussion of the meaning of4

the term “acquisition,” id. at 826

. . ., but

it is apparent that Congr ess deci ded to

add “a t t empted acquisition” in order to

close a potential loophole that m ight

otherwise have been available to

def e ndants such as Brozyna. Congress

u sed both “acquisition” and “attemp ted

acquisition” in order to tre at t hem alike,

not differently. This construction of the

statute is bolstered by an examination of

[§] 924(a), which provides the penalty for

violations o f 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 no t ; t he penalty is the same in either

situation

. . . . [T]he trial court’s

instruction that the government n eedn’t

prove “that she actually acquired or came

into pos session of the firearm” was

consistent with the statute, and the jury’s

guilty verdict was likewise consistent with

the charge and with the proof o ffered 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 committed whether or not a firearm is acquired.”)