01-1802 U.S. v. Rietzke

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“Rietzke argues that he should have been punished under the misdemeanor provision, rather than the felony provision, because Congress intended that firearms dealers be punished more leniently than non-dealers who also violate the statute and thus limited prosecutorial discretion by requiring that they charge licensed firearms dealers under sec. 924(a)(3) and not under sec. 922(a)(1). But nothing in the statute or its legislative history suggests such an intent. As noted earlier, sec. 924(a)(1)(D) requires a greater level of culpability than sec. 924(a)(3), willfulness. Nothing in sec. 924(a)(3) suggests that it is the sole provision under which a licensed firearms dealer can be charged. As such, the plain language of the statute suggests only that Congress intended to ‘allow for the option of misdemeanor prosecution for licensed dealers who make false statements on ATF forms, while leaving intact the felony prosecution structure for those … whose flagrant and repeated actions in accepting false ATF forms from straw purchases … warrants felony punishment.’ United States v. Al- Muqsit, 191 F.3d 928, 935 (8th Cir. 1999), judgment vacated en banc as to an unrelated defendant, 210 F.3d 820 (2000) (emphasis added). Three of our sister circuits that have reached the issue agree. Al-Muqsit, 191 F.3d at 935; Choice, 201 F.3d at 840-841; United States v. Jarvouhey, 117 F.3d 440, 442 (9th Cir. 1997).”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Randa, J., Coffey, J.