IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 99-21087

Summary Calendar

_______________

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 

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 declaresit 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).”
2

licensed importer, licensed

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 ofthe sale

or other disposition of such firearm or

ammunition under this chapter[.]

Because the indictment did not allege that the

statement wasintended 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 Form5300.35; 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, 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. 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, 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 wasreversible 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.”).
3

Act requires a dealer to check a potential gun

buyer’s criminalhistory, however, does not exonerate 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 append 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 hisreal

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 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 attempt 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 lethalweapons out ofthe

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, anyfalse 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 acquisition or attempted acquisition of any firearm” does not suggest an intent on the part

of Congress to create separate offenses.

Rather, it indicatesthat Congress deemed it

to be immaterial whether the firearm was

ultimately acquired. The legislative history

contains no discussion of the meaning of
4

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 providesthe penalty for

violations of the deceit provisions of the

Act. That section 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

guiltyverdict waslikewise 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 committed whether or not a firearm is acquired.”)