U.S. v. Samuel Choice

• Decision Date: 28 October 1999
• Docket Number: No. 99-1607,99-1607
• Citation: 201 F.3d 837
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Samuel Choice, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 837

201 F.3d 837 (6th Cir. 2000)

United States of America, Plaintiff-Appellee, v. Samuel Choice, Defendant-Appellant No. 99-1607

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: October 28, 1999

Decided and Filed: January 20, 2000

Appeal from the United States District Court for the Eastern District of Michigan at Detroit, No. 98-80498--Patrick J. Duggan, District Judge.

Jennifer M. Gorland, OFFICE OF THE U.S. ATTORNEY, Detroit, Michigan, for Appellee.

Andrew Densemo, Rhonda R. Brazile, FEDERAL PUBLIC

DEFENDERS OFFICE, Detroit, Michigan, for Appellant.

Before: WELLFORD, MOORE, and GILMAN, Circuit Judges.

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 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 release². Relying on United States v. 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" § 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.

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 of the same enactment.") Only the language of § 924(a)(1)(D) is both broad enough to encompass Choice's...