United States of America v. Samuel Choice

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0029P (6th Cir.)
File Name: 00a0029p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
S AMUEL C HOICE ,
Defendant-Appellant.
;>

1
No. 99-1607
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 98-80498—Patrick J. Duggan, District Judge.
Argued: October 28, 1999
Decided and Filed: January 20, 2000
Before: WELLFORD, MOORE, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ARGUED: Rhonda R. Brazile, FEDERAL PUBLIC
DEFENDERS OFFICE, Detroit, Michigan, for Appellant.
Jennifer M. Gorland, OFFICE OF THE U.S. ATTORNEY,
Detroit, Michigan, for Appellee. ON BRIEF: Rhonda R.
Brazile, Andrew Densemo, FEDERAL PUBLIC
DEFENDERS OFFICE, Detroit, Michigan, for Appellant.

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2 United States v. Choice No. 99-1607
Jennifer M. Gorland, OFFICE OF THE U.S. ATTORNEY,
Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Defendant-
appellant Samuel Choice, a federally licensed firearms dealer,
pleaded guilty to failing to make a record of a firearm sale in
violation of 18 U.S.C. § 922(b)(5). A condition of the plea
agreement was that the district court would decide whether
the offense to which Choice had pleaded guilty was a felony
or a misdemeanor. The district court found that Choice
pleaded guilty to a felony, and Choice now appeals this
ruling, arguing that his offense should be punished as a
misdemeanor under 18 U.S.C. § 924. We conclude that to
read the statute’s misdemeanor provisions as governing the
offense of willfully failing to keep records of a firearms
transaction would run contrary to the plain meaning of § 924.
We therefore hold that Choice’s offense is governed by the
catch-all provision § 924(a)(1)(D), which designates willful
violations of the firearms laws as felonies, and AFFIRM the
judgment of the district court.
I. BACKGROUND
On September 15, 1998, Choice was indicted on one count
of “knowingly and willfully” selling a firearm without making
a record of the sale, in violation of 18 U.S.C. § 922(b)(5). A
superseding indictment added one more count of violating 18
U.S.C. § 922(b)(5) and two counts of selling a firearm in
violation of state law, in contravention of 18 U.S.C.
§ 922(b)(2). Choice ultimately executed a Rule 11 plea
agreement, pleading guilty to one count of willful failure to
make a record of a firearm sale in violation of § 922(b)(5).
The agreement stated that Choice “knowingly and
intentionally” sold one firearm without making a written
record and that he “knew that he was required by law to make

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10 United States v. Choice No. 99-1607
to the “otherwise provided” language of § 924(a)(1). We
believe that language is intended to make clear that
§ 924(a)(1) applies to all cases except those in which § 924 or
§ 929 has specifically denominated a substantive offense and
its correlative punishment. Because we hold that the language
of § 924(a)(3)(A) does not specifically encompass Choice’s
offense, that subsection does not “provide otherwise” than
§ 924(a)(1).
Because the result dictated by the plain language of the
statute is sufficiently clear and not absurd, we find it
unnecessary to examine the legislative history of §§ 922 and
924. We note, however, that the legislative history is
inconclusive with respect to Congress’s intended punishment
for licensed dealers who willfully fail to keep records of
firearms transactions. For example, the House report states
that the Firearms Owners’ Protection Act of 1986, amending
the Gun Control Act of 1968 to include stricter mens rea
requirements for certain firearms violations, “would provide
a misdemeanor penalty for licensees who fail to make
required entries or who fail to properly maintain their
records.” H.R. R EP . NO . 99-495, at 16 (1986), reprinted in
1986 U.S.C.C.A.N. 1327, 1342; see also id. at 26, reprinted
in 1986 U.S.C.C.A.N. at 1352. However, such statements are
of limited usefulness, since they do not distinguish between
willful and knowing violations of the recordkeeping laws.
We therefore rely upon the plain meaning of the statute and
hold that the willful failure to keep records in violation of 18
U.S.C. § 922(b)(5) is a felony, punished under § 924(a)(1)(D).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
the district court.
No. 99-1607 United States v. Choice 3
1In Bryan v. United States, --U.S.--, 118 S. Ct. 1939 (1998), the
Supreme Court examined the mens rea requirements under § 924. It
concluded that “the term ‘knowingly’ merely requires proof of knowledge
of the facts that constitute the offense,” whereas “willfully” means that
the defendant “acted with knowledge that his conduct was unlawful.” Id.
at 1946.
2After the pre-sentence investigation report recommended a
sentencing range of 18 to 24 months, Choice filed a notice to reduce the
charge from a felony to a misdemeanor and an alternative motion for a
downward departure in his sentence. The 18- to 24-month range would
have required revocation of the plea agreement, which was based on a
calculation of the sentencing guideline range as being 6 to 12 months.
The presentence report arrived at the 18- to 24-month range because it
included an enhancement for the sale of more than 50 firearms, as charged
in the third count of the superseding indictment. The district court
granted the motion for a downward departure based on Choice’s severe
medical needs, resulting in a sentence of one day in prison, which was
deemed served.
such a record.”1 J.A. at 14 (Plea Agreement). A condition of
Choice’s plea was that the court would determine whether the
offense charged was a felony or a misdemeanor. Choice also
reserved the right to appeal that determination to this court.
The determination whether Choice pleaded guilty to a
felony or a misdemeanor turns on which penalty provision
governs the willful violation of 18 U.S.C. § 922(b)(5). The
penalties for most violations of § 922 are contained in § 924.
In particular, § 924(a)(3)(A) provides that any licensed dealer
who knowingly “makes any false statement or representation
with respect to the information required by the provisions of
this chapter to be kept in the records of a person licensed
under this chapter” is guilty of a misdemeanor. Section
924(a)(1)(D), by contrast, provides that whoever “willfully
violates” any provision of the chapter, other than those
specifically named in § 924, is guilty of a felony (emphasis
added).
The district court found that Choice had pleaded guilty to
a felony and sentenced him to one day in prison and two
years’ supervised release.2 Relying on United States v.

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4 United States v. Choice No. 99-1607
Jarvouhey, 117 F.3d 440 (9th Cir. 1997), cert. denied, 522
U.S. 1082 (1998), the only case in which a federal appellate
court has considered the question, the district court held that
§ 924(a)(1)(D) applied. The district court’s opinion rested on
the fact that the two penalty provisions refer to two different
states of mind. Because Choice pleaded guilty to a willful
violation of the recordkeeping laws, the court found that
§ 924(a)(1)(D) applied. Choice filed a timely notice of appeal
from that order.
II. ANALYSIS
We note initially that, although Choice does not face any
time in prison for his crime, there is still much at stake in the
determination of whether he has pleaded guilty to a felony or
a misdemeanor. If Choice is found to have committed a
felony, he will suffer several restrictions of his civil rights.
Under federal law, for example, he is not permitted to possess
a firearm; thus, he can no longer earn his livelihood as a
firearms dealer. See 18 U.S.C. § 922(g)(1); cf. United States
v. Butler, 788 F. Supp. 944, 947-48 (E.D. Mich. 1991)
(holding that, because Michigan law does not fully restore the
civil rights of convicted felons who have served their
sentences, § 922(g)(1) prohibits those individuals from
possessing firearms). Furthermore, under Michigan law,
convicted felons are prohibited from holding certain public
offices and from serving on juries, even after their sentences
have been completed. See Butler, 788 F. Supp. at 946-47. It
is, therefore, with an awareness of the seriousness of the
consequences for Choice that we decide this question.
Choice argues that, because the language of § 924(a)(3)
applies exclusively to licensed firearm dealers (and licensed
importers, manufacturers, and collectors), while § 924(a)(1)
applies to “whoever” makes a false statement in connection
with the sale of a firearm (such as a customer), § 924(a)(3) is
the only penalty provision that applies to recordkeeping
offenses by licensed firearms dealers. His reasoning is based
on the limiting language of § 924(a)(1), which states that that
provision applies “[e]xcept as otherwise provided in”
No. 99-1607 United States v. Choice 9
F. Supp. at 254. Although the government had attempted to
charge the defendants with “willfully” violating the firearms
regulations, thus invoking § 924(a)(1)(D), the court found that
licensed dealers can only be charged with violating § 922(m),
which provides that it is unlawful for a licensed dealer,
manufacturer, or collector “knowingly to make false entry in,
to fail to make appropriate entry in, or to fail to properly
maintain, any record which he is required to keep,” a
misdemeanor offense according to § 924(a)(3)(B). The
district court’s reasoning on this issue was sparse, but it
appeared to base its conclusion on its belief that § 924(a)(3)
was the only penalty provision that could apply to
recordkeeping offenses by licensed dealers. See Hunter, 843
F. Supp. at 254 (citing Percival, 727 F. Supp. at 1019).
Hunter is distinguishable in many ways from the instant case.
First, like Wegg, Hunter dealt with a falsification offense, not
a failure to keep records. As we have stated above, we
believe that the language of § 924(a)(3)(A), which refers
specifically to falsification offenses, is not broad enough to
encompass the failure to keep records and is therefore
inapplicable to such offenses. Second, it is unclear what
recordkeeping provision the defendants in Hunter had
allegedly violated: it appears that the government charged
those defendants with violating § 923(g)(1)(A), which
prescribes the information required to be recorded by licensed
dealers, and with violating § 924(a)(1)(A), which outlaws
knowing false statements by any person in connection with
the recordkeeping, licensing, exemption, or disability relief
requirements of the firearms laws. See Hunter, 943 F. Supp.
at 239-40, 253-54. Thus, Hunter does not shed any light on
how § 922(b)(5) violations should be treated.
We are therefore persuaded that the plain language of § 924
is sufficiently clear to dictate the conclusion that Congress
intended to punish the willful failure of licensed firearms
dealers to keep records of their sales as a felony and not as a
misdemeanor. We believe that Choice’s reading of the
statute, suggesting that only § 924(a)(3) can apply to federally
licensed dealers, is not supported by that plain language. We
further note that we are not persuaded by Choice’s reference

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8 United States v. Choice No. 99-1607
However, § 924 does not prescribe any punishment for recordkeeping
violations that are not at least knowing; therefore, § 922(b)(5) should
probably be understood as applying primarily to willful offenses. Cf.
United States v. Langley, 62 F.3d 602, 605 (4th Cir. 1995) (en banc)
(noting that the 1986 amendments to § 924 were intended to abolish strict
liability for violations of § 922); David T. Hardy, The Firearms Owners’
Protection Act: A Historical and Legal Perspective, 17 CUMB . L. REV.
585, 645-53 (1987) (same).
of the statute would lend support to the notion that Congress
intended § 924(a)(1)(D) to govern the offense of willful
failure to keep records: if licensed dealers who willfully
neglect their recordkeeping duties could only be punished in
the same way as those who knowingly do so, it would be
more difficult to understand why Congress found it necessary
to enact § 922(b)(5) as a wholly separate provision from
§ 922(m).
Choice also cites United States v. Wegg, 919 F. Supp. 898
(E.D. Va. 1996), and United States v. Hunter, 843 F. Supp.
235 (E.D. Mich. 1994), as supporting his position. However,
neither of those precedents is persuasive in the present
context. In Wegg, the district court for the Eastern District of
Virginia delved into the legislative history of § 924, as well as
examined the plain meaning of the statute and the Percival
case, to determine that § 924 was intended to treat federally
licensed dealers more leniently than others. See Wegg, 919 F.
Supp. at 901-05. However, as the government points out,
despite the district court’s occasionally broad language, it is
clear that the defendant in that case was convicted of aiding
and abetting in making false statements with respect to a
firearms transaction, not of failing to keep records. See id. at
899. Thus, the district court found that the conduct at issue
was exclusively governed by § 924(a)(3)(A), which, by its
terms, applies to false statements, but not to complete
omissions in keeping a record.
In Hunter, the district court found that the government
could only charge the defendants, federally licensed dealers,
with misdemeanors for falsifying their records. Hunter, 843
No. 99-1607 United States v. Choice 5
3In affirming the district court in Percival, the Court of Appeals for
the Fourth Circuit did not discuss the particular question at issue here.
§ 924(a), (b), (c), or (f), or in § 929. Because § 924(a)(3)
otherwise provides for punishment of federally licensed
firearms dealers, he reasons, § 924(a)(1) is inapplicable to
those individuals. Choice also relies on the reasoning of the
district court for the Eastern District of Virginia in United
States v. Percival, 727 F. Supp. 1015 (E.D. Va. 1990), aff’d,
932 F.2d 964 (4th Cir.) (unpublished), cert. denied, 502 U.S.
919 (1991).3 In that case, the defendant was convicted of
violating § 922(b)(5) by willfully failing to keep records of
several firearm sales. The court found that because the
defendant was a federally licensed dealer, the plain language
of § 924 indicated that only § 924(a)(3) was applicable to
him. See id. at 1017. The court then examined the legislative
history of the statute and, finding that it was ambiguous,
noted that the policy of lenity also led the court to interpret
the statute in the defendant’s favor; thus, both the plain
language of the statute and the ambiguous legislative history
pointed to a result that favored the defendant. See id. at 1018-
19.
The government, by contrast, notes that the Court of
Appeals for the Ninth Circuit specifically rejected the
reasoning of Percival. See Jarvouhey, 117 F.3d at 442. In
Jarvouhey, the court held that it would defy the plain
language of § 924, which provides different penalties for
different degrees of intent, to conclude that only § 924(a)(3)
can apply to licensed dealers who fail to make records of their
sales. In addition, the government points out that
§ 924(a)(3)(A) provides punishment only for licensed dealers
who make “false statement[s] or representation[s]” with
respect to a firearm sale, whereas the defendant in the instant
case was convicted not of making false statements but of
failing to keep any records at all. For this reason, the
government argues, only the catch-all provision for willful
violations of the firearms laws, § 924(a)(1)(D), can apply.

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6 United States v. Choice No. 99-1607
Statutory interpretation questions are reviewed by this court
de novo. See United States v. Rettelle, 165 F.3d 489, 491 (6th
Cir. 1999). The language of the statute is the starting point
for interpretation, and it should also be the ending point if the
plain meaning of that language is clear. See United States v.
Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989). However,
this court also looks to “the language and design of the statute
as a whole” in interpreting the plain meaning of statutory
language. United States v. Meyers, 952 F.2d 914, 918 (6th
Cir.), cert. denied, 503 U.S. 994 (1992). Finally, we may
look to the legislative history of a statute if the statutory
language is unclear. See In re: Comshare, Inc. Sec. Litig.,
183 F.3d 542, 549 (6th Cir. 1999). If the statute remains
ambiguous after consideration of its plain meaning, structure,
and legislative history, we apply the rule of lenity in favor of
criminal defendants. See United States v. Hill, 55 F.3d 1197,
1206 (6th Cir. 1995).
The plain language of this statute indicates that
§ 924(a)(1)(D) governs Choice’s offense, and therefore the
district court correctly found that Choice had pleaded guilty
to a felony. By its terms, § 924(a)(3)(A) clearly applies only
to licensed dealers who make false statements in connection
with firearms sales, and not to those who fail to keep any
records at all. See Jarvouhey, 117 F.3d at 442. Furthermore,
§ 924(a)(3)(A) refers only to knowing offenses and therefore
implicitly excludes Choice’s willful violation from its scope.
See id. Thus, because § 922(b)(5) contains no penalty
provision of its own, Choice’s willful violation of failing to
keep records is punished by the catch-all felony provision of
§ 924(a)(1)(D). Although a provision that prescribes the
penalty for knowing violations might, in the absence of a
more specific provision, be considered broad enough to
encompass willful violations, here in contrast there is a
provision – § 924(a)(1)(D) – that explicitly refers to the mens
rea of willfulness. See, e.g., Edmond v. United States, 520
U.S. 651, 657 (1997); D. Ginsberg & Sons, Inc. v. Popkin,
285 U.S. 204, 208 (1932) (“General language of a statutory
provision, although broad enough to include it, will not be
held to apply to a matter specifically dealt with in another part
No. 99-1607 United States v. Choice 7
4Section 922(m) criminalizes knowingly falsifying records or failing
to keep records. Violation of that section is punished as a misdemeanor,
by the terms of § 924(a)(3)(B).
5Perhaps § 922(b)(5) could also be read to criminalize failing to keep
records with a state of mind less than knowingness (for example, mere
negligence) – if it is possible unknowingly to fail to keep records.
of the same enactment.”) Only the language of
§ 924(a)(1)(D) is both broad enough to encompass Choice’s
offense of failing to keep records and specific enough to apply
to his willful offense.4
As Choice points out, this reading results in punishing
licensed dealers who knowingly falsify records less harshly
than dealers who willfully fail to keep any records at all.
However, “[i]t is for Congress to decide whether a firearms
dealer who willfully and completely fails to keep transaction
records should be punished more severely than a dealer who
knowingly makes false statements in his transaction records.”
Jarvouhey, 117 F.3d at 442. This result is not bizarre or
clearly and demonstrably at odds with the drafters’ intentions,
as the legislative history, discussed below, shows. See Ron
Pair, 489 U.S. at 242 (stating that the literal meaning of a
statute should be overridden only in those rare cases where
that meaning is demonstrably at odds with the intentions of
the statute’s drafters).
Our reading of the statute is bolstered by an examination of
another aspect of the statutory scheme, the statute’s treatment
of knowing failures to keep records under § 922(m). Section
922(m) criminalizes knowing recordkeeping violations by
licensed dealers, and § 924(a)(3)(B) makes it clear that
violation of § 922(m) is a misdemeanor. Thus, there appears
to be some overlap between § 922(m) and § 922(b)(5): the
knowing failure to keep records would violate both
provisions. This overlap suggests that § 922(b)(5), which
contains no mens rea requirement of its own, is intended to
govern when the failure to keep records involves a mens rea
other than knowingness, that is, willfulness.5 Such a reading

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