       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.
