                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                      UNITED STATES COURT OF APPEALS                  March 3, 2004
                               FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 03-60041


                        UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                   versus

          JAMES CARLOS CLARK, also known as Morris Bailey,

                                                    Defendant-Appellant.


            Appeal from the United States District Court
              for the Northern District of Mississippi
                           (1:01-CR-72-P)



Before SMITH, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

      The principal issue in this appeal concerns the sufficiency of

the   evidence   on   whether   James   Carlos   Clark   was     a   requisite

“fugitive from justice” for federal firearms convictions, including

18 U.S.C. § 922(g)(2) (prohibiting firearm possession by fugitive

from justice).        Had Clark renewed his motion for judgment of

acquittal at the close of all evidence, this issue would have

presented a matter of first impression for our circuit:                 whether

fugitive from justice status, as defined at 18 U.S.C. § 921(a)(15),


      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
requires   proving,    on   a   subjective   basis,   intent   to   flee

prosecution. Along this line, Clark contends: under any standard,

the evidence was insufficient to prove such status; and, therefore,

the district court erred in denying judgment of acquittal.

     Under the very restricted manifest miscarriage of justice

standard, made applicable by Clark’s failure to renew his motion

for judgment of acquittal at the close of all the evidence, his

sufficiency challenge fails. In addition, there is no merit to his

contesting his sentence-enhancement because of obliterated serial

numbers on firearms.    AFFIRMED.

                                    I.

     Clark traveled frequently between the Starkville, Mississippi,

area and Chicago, Illinois.     In early 1999, after being arrested in

Chicago for felony possession of a controlled substance, Clark

falsely identified himself as Morris Bailey and provided a false

address in Columbus, Mississippi.

     Approximately three months later, Clark was arraigned in the

Circuit Court of Cook County, Illinois.       The case was continued,

with Clark released on bond.      In September 1999, Clark failed to

appear in court.   An arrest warrant was issued.

     In late November 1999, Clark was back in custody in Illinois,

having been arrested again.     The next month, however, the bond was

reinstated.




                                    2
     On 13 January 2000, Clark failed, once again, to appear in

court; the Cook County court again issued an arrest warrant for

Morris Bailey.   Apparently, this warrant remains outstanding.

     Clark traveled to Mississippi and recruited others to act for

him between 11 July and 15 August 2000 as straw purchasers of

firearms from federally-licensed firearms dealers, for resale in

Chicago.   In each instance, the purchaser answered question 9A of

the federally-mandated ATF form as follows:      he or she was the

actual buyer (i.e., not buying for another party) and was not a

fugitive from justice.    Later, many of those firearms purchased in

Mississippi, including some with filed-down serial numbers, were

recovered following sales in Chicago.

     In June 2001, Clark was indicted in Mississippi on nine counts

of federal firearms violations.       At trial in September 2002,

following the Government’s case-in-chief, Clark moved for judgment

of acquittal on all counts; the motion was granted for one count.

     In denying such judgment concerning the fugitive from justice

issue that is also raised here, the court engaged in a detailed and

comprehensive analysis.    It held the Government was only required

to

           prove the following elements in order to
           demonstrate that Clark was a fugitive from
           justice and, thus, a person not legally
           entitled to purchase or possess firearms.
           Number one, Clark knew charges were pending
           against him; number two, Clark refused to
           answer those charges; and, three, Clark left
           the jurisdiction where charges were pending.


                                  3
           It is not necessary that the government prove
           that Clark left [Illinois] with intent to
           avoid the charges pending against him.     The
           Court therefore rejects [Clark’s] argument
           that the government need prove that Clark knew
           his court date or that a warrant had issued.

Accordingly, the district court found “that a reasonable jury could

conclude that Clark was a fugitive from justice”.                         Clark then

presented his case.           At the conclusion of all the evidence,

however, he failed to renew his motion for judgment of acquittal.

      The jury was unable to return verdicts on four counts, which

were later dismissed. It returned guilty verdicts on the remaining

counts.     Clark      was    sentenced,          inter   alia,    to    57   months’

imprisonment.

                                         II.

      Clark appeals his conviction and sentence. For the former, he

challenges the sufficiency of the evidence; for the latter, the

obliterated-serial-numbers adjustment to his base offense level.

                                         A.

      Clark was convicted of:       one count for violation of 18 U.S.C.

§   922(g)(2),    which      prohibits        a   fugitive   from       justice   from

transporting     “or   possess[ing]       in      or   affecting    commerce”     any

firearms; two counts for violation of 18 U.S.C. § 922(a)(6), which

prohibits causing, aiding, abetting, and inducing a straw purchaser

to make material false written statements in connection with the

acquisition of firearms; and one count for violation of 18 U.S.C.



                                          4
§ 371, conspiracy to make false statements in the acquisition of

firearms from a federally licensed dealer.

     The Government maintains that fugitive from justice status is

not a prerequisite to convicting Clark for the counts under § 371

and § 922(a)(6), citing United States v. Ortiz-Loya, 777 F.2d 973

(5th Cir. 1985) (upholding convictions for aiding and abetting and

conspiracy to make false statements by straw purchasers regarding

identity of actual purchasers).             Based on our very restricted

standard   of    review     for   Clark’s   sufficiency    of    the   evidence

challenge,      discussed    infra,   we    need   not   reach   this    issue.

Restated, for each of the four counts, we will assume (as held by

the district court) that Clark’s purchase would be illegal only if

he is a fugitive from justice.        Claiming insufficient evidence for

such status, Clark maintains it requires proving, on a subjective

basis, his intent to flee prosecution.

     When a defendant properly moves for judgment of acquittal, a

sufficiency challenge fails if, construing the evidence in the

light most favorable to the verdict, “any rational trier of fact

could have found that [it] established guilt beyond a reasonable

doubt”.    United States v. Shelton, 325 F.3d 553, 557 (5th Cir.

2003) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).

As discussed, although Clark moved for judgment of acquittal

following the Government’s case, he did not renew his motion at the

close of all the evidence.          Clark presented several witnesses in


                                       5
his defense, and, after the close of the evidence, objected to the

jury    instructions    on   finding        fugitive    from   justice   status

(concerning   that     status,    the   charge    was    consistent   with   the

district court’s above-quoted denial of the acquittal motion at the

close of the Government’s case); but, Clark never renewed his

motion for judgment of acquittal.

       In responding on appeal to this claim, however, the Government

failed to identify this omission by Clark.              Of course, we, not the

parties, determine our standard of review.              E.g., United States v.

Herrera, 313 F.3d 882, 885 n.* (5th Cir. 2002)(en banc).                  Under

this procedural posture, that standard is well settled:

            [W]hen the defendant moves for judgment of
            acquittal at the close of the government’s
            case in chief, and defense evidence is
            thereafter presented but the defendant fails
            to renew the motion at the conclusion of all
            of the evidence, he waives objection to the
            denial of his earlier motion.... Accordingly,
            our review is limited to determining whether
            there   was    a   manifest   miscarriage   of
            justice.... That occurs only where the record
            is devoid of evidence pointing to guilt or
            contains evidence on a key element of the
            offense [that is] so tenuous that a conviction
            would be shocking.

United States v. McIntosh, 280 F.3d 479, 483 (5th Cir. 2002)

(emphasis    added;    internal    quotation     marks    omitted;    citations

omitted; alterations in original).             As explained infra, there is

evidence in the record — indeed, quite abundant — pointing to

Clark’s guilt under any standard for fugitive from justice status;

his conviction is not a manifest miscarriage of justice.

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     A “fugitive from justice” is defined as “any person who has

fled from any State to avoid prosecution for a crime or to avoid

giving   testimony    in    any    criminal   proceeding”.     18   U.S.C.   §

921(a)(15). Noting that our court has not determined the requisite

standard of proof for such status, Clark maintains we should follow

the Ninth and Eleventh Circuits and require the Government to prove

he intended to flee a jurisdiction for the purpose of avoiding

prosecution.     Clark asserts:        the evidence was insufficient to

prove, on a subjective basis, his intent; and, therefore, the

Government is unable to prove a necessary element of fugitive from

justice status.      Alternatively, he contends that, even under the

lesser standard used by the district court for such status, the

evidence was insufficient.

     In the context of a § 922(g)(2) violation (fugitive from

justice possessing firearm), United States v. Durcan, 539 F.2d 29,

30-31 (9th Cir. 1976), held that “an indispensable requisite of the

prosecution’s proof” is showing the defendant left the jurisdiction

“with the intent to avoid arrest or prosecution”.            Durcan held the

evidence     insufficient     to    “establish   the...   specific    intent

required”.     Id. at 32.     United States v. Collins, 61 F.3d 1379,

1385 (9th Cir. 1995), reiterated this standard, closing a loophole

in the Durcan analysis so that it includes fugitives who return to

the prosecuting jurisdiction but continue to conceal themselves

from authorities there.


                                       7
      Similarly, the Eleventh Circuit has held that, in the context

of § 922(g)(2), the Government must prove the defendant “purposely”

stayed     outside   the    jurisdiction       “with     the   intent    to    avoid

prosecution”; “‘[m]ere absence from the jurisdiction in which a

crime    occurred    does   not   render      the   suspect     a   fugitive     from

justice’”.     United States v. Gonzalez, 122 F.3d 1383, 1387 (11th

Cir. 1997) (quoting United States v. Fonseca-Machado, 53 F.3d 1242,

1243-44 (11th Cir. 1995)).

      In   urging    adoption     of   this    standard,       Clark    claims    the

Government must prove, on a subjective basis, that he left Illinois

with the specific intent to avoid prosecution there. He claims the

Government cannot do so, maintaining:                  although the Government

proved he knew of the outstanding charges, it failed to prove he

was aware of any specific court date; it did not offer any evidence

— such as proof Clark received written documentation or a notice of

hearing relating to a specific court date in Illinois — that bears

on   his    intent   for    leaving    Illinois        and   missing    his    court

appearance; no evidence was presented that his failure to appear

was anything more than a mistake; and if, as the Government

contends, he was traveling between Mississippi and Illinois for the

purpose of selling firearms, he could not possibly be a fugitive in

any meaningful sense because of his repeated, voluntary returns to

Illinois, the prosecuting jurisdiction.                Clark contends that the

Government must prove that he willfully avoided the charges.


                                        8
     Quite different requirements for fugitive from justice status

are followed by the Fourth and Seventh Circuits.      In the context of

both § 922(g)(2) (prohibiting fugitive from justice possession of

firearm) and § 922(a)(6) (proscribing causing straw purchaser to

make material false statements for firearm purchase), United States

v. Spillane, 913 F.2d 1079, 1081 (4th Cir. 1990), rejected the

claim “that to meet the requisite burden of proof the prosecution

must show that the [defendant] left [the jurisdiction] with the

intent to avoid facing the charges pending against him”.        Instead,

Spillane held the status proved if the defendant purposely left the

prosecution jurisdiction, knowing that charges are pending, and

refused to answer those charges by appearing before the prosecuting

tribunal.    In this regard, “[i]t is not necessary that the accused

make a furtive exit from the prosecuting jurisdiction”.           Id. at

1082.

     Likewise, United States v. Ballentine, 4 F.3d 504, 506 (7th

Cir. 1993), held that “knowledge of one’s status as a ‘fugitive’

simply is not an element of 18 U.S.C. § 922(g)(2)”.             Fugitive

status does require scienter, but it is not knowledge that a

defendant carries the “name or status of ‘fugitive’”; instead, it

is knowledge that charges are pending against him.              Id.     An

individual   who,   with   such   knowledge,   deliberately   leaves   the

prosecuting jurisdiction and refuses to answer those charges by

appearing before the court is a fugitive from justice.         Id.


                                     9
     As discussed, because Clark failed to properly move for

judgment of acquittal, we need not decide which approach to follow;

the issue is waived.   Instead, we review only to ensure there is no

manifest miscarriage of justice.

     Along that line, it is not disputed that Clark intentionally

left Illinois, knowing charges were pending against him there under

a false name.     There is evidence that:   Clark failed to appear

before the court in Illinois where charges were pending; he had

failed to appear in Illinois court once before; and he deliberately

misled Illinois authorities by providing both a false name (Bailey)

and false address (Mississippi). In sum, the record is not “devoid

of evidence” pointing to Clark’s guilt — far from it.

                                 B.

     Clark claims there was insufficient evidence to support his

sentence enhancement, pursuant to U.S.S.G. § 2K2.1(b)(4) (two level

enhancement if firearm has “obliterated serial number”), for filed

down serial numbers on some of the recovered firearms.   Noting that

he was not convicted of offenses with respect to these firearms,

Clark contends:   others obliterated the numbers; and he should not

be sentenced on the basis of their conduct.

     The district court’s application and interpretation of the

Sentencing Guidelines are reviewed de novo; its findings of fact,

only for clear error.    E.g., United States v. Jimenez, 323 F.3d

320, 322 (5th Cir. 2003).   In sentencing, the burden of proof is by


                                 10
a preponderance of the evidence; and the district court may rely on

uncharged offenses, dismissed counts, or even offenses on which the

defendant is acquitted.   E.g., United States v. Watts, 519 U.S.

148, 157 (1997); United States v. Cockerham, 919 F.2d 286, 289 (5th

Cir. 1990), overruled on other grounds, United States v. Calverley,

37 F.3d 160, 163 n.20 (5th Cir. 1994) (en banc).

     There was no error. Clark’s not being convicted on an offense

relating to these firearms did not preclude the district court’s

considering them for sentencing purposes.   For example, one person

testified: although he and another did file off the serial numbers

on several firearms, they did so at Clark’s request, immediately

prior to delivering them to him for sale in Chicago.

                               III.

     For the foregoing reasons, the judgment is

                                                       AFFIRMED.




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