USCA11 Case: 23-10172 Document: 31-1 Date Filed: 08/02/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10172
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DALLAS TERRELL SMITH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20079-DPG-1
____________________
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2 Opinion of the Court 23-10172
Before NEWSOM, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Dallas Terrell Smith appeals his convictions and sentence of
one year and one day in prison for providing a false statement in
connection with the purchase of a firearm and dealing in firearms
without a license. We affirm.
I.
A federal grand jury charged Smith with three counts of
making false statements in connection with the purchase of fire-
arms from a licensed dealer, in violation of
18 U.S.C. § 922(a)(6)
(Counts 1–3), and one count of dealing in firearms without a li-
cense, in violation of
18 U.S.C. § 922(a)(1)(A) (Count 4). A jury
found Smith guilty of Counts 1 and 4, and not guilty of Counts 2
and 3. The district court sentenced Smith to one year and one day
in prison, followed by three years of supervised release. Smith now
appeals his convictions and sentence, arguing that the evidence pre-
sented at trial was insufficient to support the jury’s verdict as to
Counts 1 and 4.
II.
We review de novo whether the evidence was sufficient to
sustain a jury’s guilty verdict, viewing all evidence and making all
reasonable inferences and credibility determinations in favor of the
government. United States v. Isaacson,
752 F.3d 1291, 1303–04 (11th
Cir. 2014). We will not overturn a jury’s verdict so long as any
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23-10172 Opinion of the Court 3
reasonable construction of the evidence would have allowed the
jury to find the defendant guilty beyond a reasonable doubt.
Id.
III.
A.
To sustain a conviction under
18 U.S.C. § 922(a)(6), the gov-
ernment must prove beyond a reasonable doubt that in connection
with the acquisition of firearms, the defendant knowingly made a
false or fictitious oral or written statement intended to deceive or
likely to deceive a licensed firearms dealer, and that the false state-
ment was a fact material to the lawfulness of the sale or disposition
of the firearm.
18 U.S.C. § 922(a)(6); see United States v. Frazier,
605
F.3d 1271, 1278–79 (11th Cir. 2010).
Count 1 of Smith’s indictment charged that on June 2, 2019,
Smith knowingly made two false statements on a Bureau of Alco-
hol, Tobacco, Firearms, and Explosives (ATF) form that he was re-
quired to complete for the purchase of two pistols from a licensed
firearms dealer: that he was the actual buyer of the firearms, and
that he resided at a specific address on Fourth Avenue in Miami,
Florida. Smith argues that neither of these two statements could
support his conviction on Count 1 because (1) the government
failed to prove that he was not the actual buyer, and (2) the resi-
dence information he provided, though false, was not material to
the lawfulness of the sale. 1
1 Smith also argues that the question of whether his allegedly false statements
were “material” within the meaning of the statute should have been submitted
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4 Opinion of the Court 23-10172
We need not decide today what evidence was required to
prove that Smith was not the “actual transferee/buyer” of the fire-
arms as he stated on the ATF form, because Smith admits to know-
ingly listing an address where he had not lived for several years as
his “current” residence on the same form. One false statement is
enough, provided that the other elements of the offense are satis-
fied. See
18 U.S.C. § 922(a)(6).
And Smith’s argument that a false address is not “material to
the lawfulness of the sale” of a firearm is contrary to binding prec-
edent. In United States v. Gudger, our predecessor court explained
that a buyer’s intentional misstatement of his home address is ma-
terial to the lawfulness of the sale because the dealer is required by
statute to record the name, age, and place of residence of the
buyer—meaning that “the sale is illegal unless these matters are
correctly recorded.”
472 F.2d 566, 568 (5th Cir. 1972) (quotation
omitted); see
18 U.S.C. § 922(b)(5). We are bound by the holding in
Gudger “unless and until it is overruled or undermined to the point
of abrogation by the Supreme Court or by this court sitting en
banc.” United States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008);
see also Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc) (adopting decisions of the former Fifth Circuit issued
prior to October 1, 1981, as binding precedent).
to the jury. But as we have explained before, whether a statement of fact is
“material to the lawfulness of the sale” of a firearm is “purely a question of law”
for the court to decide. United States v. Klais,
68 F.3d 1282, 1283 (11th Cir. 1995)
(emphasis in original) (quoting
18 U.S.C. § 922(a)(6)).
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23-10172 Opinion of the Court 5
Smith attempts to distinguish Gudger by pointing out that
the defendant in that case listed a fictitious address, whereas the ad-
dress he provided was an actual residence—albeit one where he did
not live at the time and had not lived for several years. We see no
difference. Either way, Smith’s statement that the Fourth Avenue
address was his “current” address was false, and he knew it. Gudger
makes clear that providing a false address is “material to the lawful-
ness of the sale” under § 922(a)(6).
IV.
As to his conviction for dealing in firearms without a license,
Smith argues that the government failed to present sufficient evi-
dence that he was “engaged in the business of dealing in firearms”
as that term is used in § 922(a)(1)(A). Smith argues that evidence
that he sold only 24 firearms over a two-year period shows that he
was not making a living from selling guns. But the statute does not
require the government to prove that the defendant engaged in a
high-volume firearm business or that he made any minimum dollar
amount from his sales.
At the time Smith committed his offenses, Congress defined
the term “engaged in the business” as used in § 922(a)(6) to mean
“a person who devotes time, attention, and labor to dealing in fire-
arms as a regular course of trade or business with the principal ob-
jective of livelihood and profit through the repetitive purchase and
resale of firearms,” not including a hobbyist or collector who sells
from his personal collection.
18 U.S.C. § 921(a)(21)(C) (2019). The
term “with the principal objective of livelihood and profit” was
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6 Opinion of the Court 23-10172
defined to mean that “the intent underlying the sale or disposition
of firearms is predominantly one of obtaining livelihood and pecu-
niary gain, as opposed to other intents, such as improving or liqui-
dating a personal firearms collection.”
Id. § 921(a)(22). So a person
may engage in the business of dealing in firearms if he regularly
buys and sells firearms with the principal intent of making a profit,
even if that business is not his only (or even his main) source of
income.
The evidence showed that Smith purchased at least 26 fire-
arms between September 2018 and November 2020, including 11
Taurus G2C 9mm pistols. When he was interviewed in November
2020, he had only the two most recently purchased firearms—nei-
ther of which was a Taurus G2C 9mm—still in his possession. He
spent about $10,000 on firearms during that period, though his only
known source of income (other than firearm sales) was unemploy-
ment assistance. And most importantly, Smith admitted to ATF
agents that he sold firearms “to pay his bills,” and that he made
about $50 profit on each firearm. This evidence was sufficient for
a reasonable jury to find that Smith was engaged in buying and sell-
ing firearms “with the principal objective of livelihood and profit,”
though he was not a licensed firearms dealer.
18 U.S.C.
§ 921(a)(21)(C) (2019).
V.
We AFFIRM Smith’s convictions and sentence.
AFFIRMED.
