United States v. Choice

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 20, 2000
• Docket: 99-1607
• Status: Published

Opinion

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 STATES OF AMERICA,  Plaintiff-Appellee,   No. 99-1607 v.  > SAMUEL CHOICE,  Defendant-Appellant.  1 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.

1 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 10 United States v. Choice No. 99-1607 No. 99-1607 United States v. Choice 3

to the “otherwise provided” language of § 924(a)(1). We such a record.”1 J.A. at 14 (Plea Agreement). A condition of believe that language is intended to make clear that Choice’s plea was that the court would determine whether the § 924(a)(1) applies to all cases except those in which § 924 or offense charged was a felony or a misdemeanor. Choice also § 929 has specifically denominated a substantive offense and reserved the right to appeal that determination to this court. its correlative punishment. Because we hold that the language of § 924(a)(3)(A) does not specifically encompass Choice’s The determination whether Choice pleaded guilty to a offense, that subsection does not “provide otherwise” than felony or a misdemeanor turns on which penalty provision § 924(a)(1). governs the willful violation of 18 U.S.C. § 922(b)(5). The penalties for most violations of § 922 are contained in § 924. Because the result dictated by the plain language of the In particular, § 924(a)(3)(A) provides that any licensed dealer statute is sufficiently clear and not absurd, we find it who knowingly “makes any false statement or representation unnecessary to examine the legislative history of §§ 922 and with respect to the information required by the provisions of 924. We note, however, that the legislative history is this chapter to be kept in the records of a person licensed inconclusive with respect to Congress’s intended punishment under this chapter” is guilty of a misdemeanor. Section for licensed dealers who willfully fail to keep records of 924(a)(1)(D), by contrast, provides that whoever “willfully firearms transactions. For example, the House report states violates” any provision of the chapter, other than those that the Firearms Owners’ Protection Act of 1986, amending specifically named in § 924, is guilty of a felony (emphasis the Gun Control Act of 1968 to include stricter mens rea added). requirements for certain firearms violations, “would provide a misdemeanor penalty for licensees who fail to make The district court found that Choice had pleaded guilty to required entries or who fail to properly maintain their a felony and sentenced him to one day in prison and two records.” H.R. REP. NO. 99-495, at 16 (1986), reprinted in years’ supervised release.2 Relying on United States v. 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 1 In Bryan v. United States, --U.S.--, 118 S. Ct. 1939 (1998), the willful and knowing violations of the recordkeeping laws. Supreme Court examined the mens rea requirements under § 924. It We therefore rely upon the plain meaning of the statute and concluded that “the term ‘knowingly’ merely requires proof of knowledge hold that the willful failure to keep records in violation of 18 of the facts that constitute the offense,” whereas “willfully” means that U.S.C. § 922(b)(5) is a felony, punished under § 924(a)(1)(D). the defendant “acted with knowledge that his conduct was unlawful.” Id. at 1946. III. CONCLUSION 2 After the pre-sentence investigation report recommended a For the foregoing reasons, we AFFIRM the judgment of 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 the district court. 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. 4 United States v. Choice No. 99-1607 No. 99-1607 United States v. Choice 9

Jarvouhey, 117 F.3d 440 (9th Cir. 1997), cert. denied, 522 F. Supp. at 254. Although the government had attempted to U.S. 1082 (1998), the only case in which a federal appellate charge the defendants with “willfully” violating the firearms court has considered the question, the district court held that regulations, thus invoking § 924(a)(1)(D), the court found that § 924(a)(1)(D) applied. The district court’s opinion rested on licensed dealers can only be charged with violating § 922(m), the fact that the two penalty provisions refer to two different which provides that it is unlawful for a licensed dealer, states of mind. Because Choice pleaded guilty to a willful manufacturer, or collector “knowingly to make false entry in, violation of the recordkeeping laws, the court found that to fail to make appropriate entry in, or to fail to properly § 924(a)(1)(D) applied. Choice filed a timely notice of appeal maintain, any record which he is required to keep,” a from that order. misdemeanor offense according to § 924(a)(3)(B). The district court’s reasoning on this issue was sparse, but it II. ANALYSIS appeared to base its conclusion on its belief that § 924(a)(3) was the only penalty provision that could apply to We note initially that, although Choice does not face any recordkeeping offenses by licensed dealers. See Hunter, 843 time in prison for his crime, there is still much at stake in the F. Supp. at 254 (citing Percival, 727 F. Supp. at 1019). determination of whether he has pleaded guilty to a felony or Hunter is distinguishable in many ways from the instant case. a misdemeanor. If Choice is found to have committed a First, like Wegg, Hunter dealt with a falsification offense, not felony, he will suffer several restrictions of his civil rights. a failure to keep records. As we have stated above, we Under federal law, for example, he is not permitted to possess believe that the language of § 924(a)(3)(A), which refers a firearm; thus, he can no longer earn his livelihood as a specifically to falsification offenses, is not broad enough to firearms dealer. See 18 U.S.C. § 922(g)(1); cf. United States encompass the failure to keep records and is therefore v. Butler, 788 F. Supp. 944, 947-48 (E.D. Mich. 1991) inapplicable to such offenses. Second, it is unclear what (holding that, because Michigan law does not fully restore the recordkeeping provision the defendants in Hunter had civil rights of convicted felons who have served their allegedly violated: it appears that the government charged sentences, § 922(g)(1) prohibits those individuals from those defendants with violating § 923(g)(1)(A), which possessing firearms). Furthermore, under Michigan law, prescribes the information required to be recorded by licensed convicted felons are prohibited from holding certain public dealers, and with violating § 924(a)(1)(A), which outlaws offices and from serving on juries, even after their sentences knowing false statements by any person in connection with have been completed. See Butler, 788 F. Supp. at 946-47. It the recordkeeping, licensing, exemption, or disability relief is, therefore, with an awareness of the seriousness of the requirements of the firearms laws. See Hunter, 943 F. Supp. consequences for Choice that we decide this question. at 239-40, 253-54. Thus, Hunter does not shed any light on how § 922(b)(5) violations should be treated. Choice argues that, because the language of § 924(a)(3) applies exclusively to licensed firearm dealers (and licensed We are therefore persuaded that the plain language of § 924 importers, manufacturers, and collectors), while § 924(a)(1) is sufficiently clear to dictate the conclusion that Congress applies to “whoever” makes a false statement in connection intended to punish the willful failure of licensed firearms with the sale of a firearm (such as a customer), § 924(a)(3) is dealers to keep records of their sales as a felony and not as a the only penalty provision that applies to recordkeeping misdemeanor. We believe that Choice’s reading of the offenses by licensed firearms dealers. His reasoning is based statute, suggesting that only § 924(a)(3) can apply to federally on the limiting language of § 924(a)(1), which states that that licensed dealers, is not supported by that plain language. We provision applies “[e]xcept as otherwise provided in” further note that we are not persuaded by Choice’s reference 8 United States v. Choice No. 99-1607 No. 99-1607 United States v. Choice 5

of the statute would lend support to the notion that Congress § 924(a), (b), (c), or (f), or in § 929. Because § 924(a)(3) intended § 924(a)(1)(D) to govern the offense of willful otherwise provides for punishment of federally licensed failure to keep records: if licensed dealers who willfully firearms dealers, he reasons, § 924(a)(1) is inapplicable to neglect their recordkeeping duties could only be punished in those individuals. Choice also relies on the reasoning of the the same way as those who knowingly do so, it would be district court for the Eastern District of Virginia in United more difficult to understand why Congress found it necessary States v. Percival, 727 F. Supp. 1015 (E.D. Va. 1990), aff’d, to enact § 922(b)(5) as a wholly separate provision from 932 F.2d 9643 (4th Cir.) (unpublished), cert. denied, 502 U.S. § 922(m). 919 (1991). In that case, the defendant was convicted of violating § 922(b)(5) by willfully failing to keep records of Choice also cites United States v. Wegg, 919 F. Supp. 898 several firearm sales. The court found that because the (E.D. Va. 1996), and United States v. Hunter, 843 F. Supp. defendant was a federally licensed dealer, the plain language 235 (E.D. Mich. 1994), as supporting his position. However, of § 924 indicated that only § 924(a)(3) was applicable to neither of those precedents is persuasive in the present him. See id. at 1017. The court then examined the legislative context. In Wegg, the district court for the Eastern District of history of the statute and, finding that it was ambiguous, Virginia delved into the legislative history of § 924, as well as noted that the policy of lenity also led the court to interpret examined the plain meaning of the statute and the Percival the statute in the defendant’s favor; thus, both the plain case, to determine that § 924 was intended to treat federally language of the statute and the ambiguous legislative history licensed dealers more leniently than others. See Wegg, 919 F. pointed to a result that favored the defendant. See id. at 1018- Supp. at 901-05. However, as the government points out, 19. despite the district court’s occasionally broad language, it is clear that the defendant in that case was convicted of aiding The government, by contrast, notes that the Court of and abetting in making false statements with respect to a Appeals for the Ninth Circuit specifically rejected the firearms transaction, not of failing to keep records. See id. at reasoning of Percival. See Jarvouhey, 117 F.3d at 442. In 899. Thus, the district court found that the conduct at issue Jarvouhey, the court held that it would defy the plain was exclusively governed by § 924(a)(3)(A), which, by its language of § 924, which provides different penalties for terms, applies to false statements, but not to complete different degrees of intent, to conclude that only § 924(a)(3) omissions in keeping a record. can apply to licensed dealers who fail to make records of their sales. In addition, the government points out that In Hunter, the district court found that the government § 924(a)(3)(A) provides punishment only for licensed dealers could only charge the defendants, federally licensed dealers, who make “false statement[s] or representation[s]” with with misdemeanors for falsifying their records. Hunter, 843 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 However, § 924 does not prescribe any punishment for recordkeeping violations of the firearms laws, § 924(a)(1)(D), can apply. 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’ 3 Protection Act: A Historical and Legal Perspective, 17 CUMB. L. REV. In affirming the district court in Percival, the Court of Appeals for 585, 645-53 (1987) (same). the Fourth Circuit did not discuss the particular question at issue here. 6 United States v. Choice No. 99-1607 No. 99-1607 United States v. Choice 7

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