Appeal from the United States District Court for the Eastern District of Wisconsin. No. 00-CR-88--Rudolph T. Randa, Judge.
Before Harlington Wood, Jr., Coffey, and Easterbrook, Circuit Judges.
The opinion of the court was delivered by: Coffey, Circuit Judge
John Rietzke, a federally licensed firearms dealer, operated Grassel's Guns in Greenfield, Wisconsin, and was arrested after selling guns to a convicted felon thru a straw purchaser, an undercover agent of the Bureau of Alcohol, Tobacco, and Firearms (ATF). Rietzke pleaded guilty to one count of "willfully fail[ing] to keep records of the name, age and place of residence of" the person to whom he had sold or delivered a firearm, contrary to 18 U.S.C. sec. 922(b)(5) & 18 U.S.C. sec. 924(a)(1)(D). In his plea agreement Rietzke preserved the right to appeal the trial judge's decision to convict and sentence him under the statute's felony provision instead of its misdemeanor pro vision, which he contends was created for the purpose of treating licensed firearms dealers more leniently, and he now so appeals. We affirm.
John Rietzke, a federally licensed firearms dealer, operated Grassel's Guns in Greenfield, Wisconsin. The Bureau of Alcohol, Tobacco and Firearms (ATF) began investigating Rietzke after receiving information from a cooperating witness, Mitchell Critton, that Rietzke had been violating federal firearms laws. Critton told ATF agents that Rietzke had sold firearms to him several years before, despite knowing that Critton was a convicted felon. Critton told the agents that he and Rietzke accomplished the earlier sale through the use of a "straw purchaser," someone who acts as an agent or intermediary for another who is ineligible to purchase the firearms directly.
On December 3, 1999, ATF sent Critton to Rietzke's store in order that he might negotiate a firearms purchase using a straw purchaser. Rietzke recognized Critton from their prior dealings, and Critton reminded Rietzke of his felony record. Critton then inquired of Rietzke as to whether he could purchase a Beretta pistol, if he could arrange to use his girlfriend as a straw purchaser. Rietzke agreed to the arrangement and commented that he could not sell guns directly to Critton.
On December 14, 1999, Critton returned to Grassel's Guns along with Robin Broeske, an undercover ATF agent posing as his girlfriend. Critton and Rietzke discussed the purchase price of the gun that Critton desired, and Rietzke produced the appropriate ATF paperwork for Broeske to complete. Rietzke specifically instructed Broeske to answer all the questions on the Handgun Hotline form with a "yes," meaning that she was eligible to purchase weapons. Broeske completed the paperwork using the name "Bobbie Day," her undercover name, and Critton handed Rietzke $720 for the purchase, leaving a small balance to be paid when he took possession of the gun after the federally mandated waiting period.
On December 16, 1999, after the two-day, federally-mandated waiting period, Critton returned to the gun outlet in order to pick up the pistol. At that time Rietzke provided Critton with additional paperwork for "Bobbie" to complete. Critton left the store momentarily to request that Agent Broeske, who had been waiting in the car outside the store, return to the store with him in order that she might complete the forms and Critton receive the firearm. Upon Broeske's entry into the store, Rietzke instructed her to complete the paperwork and directed her to answer the question in the affirmative that inquired whether she was the actual buyer of the gun. While Broeske completed the paperwork, Rietzke and Critton discussed the ammunition he desired as well as the potential purchase of additional firearms. Rietzke ultimately agreed to sell Critton an additional weapon, a MAK-90 rifle. During Rietzke's and Critton's negotiation, Broeske completed the paperwork and left the store without taking possession of the two firearms.Instead, Critton paid Rietzke the $389 balance for the weapons (which had increased due to Critton's purchase of the additional weapon) and took possession of and exited the store with both the Beretta pistol as well as the MAK-90 rifle.
During February and March 2000, Rietzke agreed to sell two additional guns to Critton again using "Bobbie Day" as a straw purchaser. Documents obtained during a government search warrant revealed that Rietzke retained forms completed and signed by "Bobbie Day" to purchase the two guns described herein and that Rietzke had made the proper calls confirming that "Bobbie Day" was not a convicted felon.
A grand jury sitting in the Eastern District of Wisconsin on May 2, 2000, returned a four-count indictment against Rietzke. Counts one and three charged Rietzke with knowingly selling firearms to a convicted felon, 18 U.S.C. sec. 922(d), and counts two and four charged him with "willfully fail[ing] to keep records of the name, age and place of residence of" the person to whom he sold firearms, 18 U.S.C. sec. 922(b)(5) & 18 U.S.C. sec. 924(a)(1)(D). On May 30, 2000, Rietzke moved to dismiss the indictment, arguing that it failed to adequately set forth facts that constituted a felony violation. In his motion, Rietzke argued that, because he was a licensed firearms dealer, sec. 922(b)(5) was punishable only as a misdemeanor and that sec. 922(d) did not prohibit the sale to convicted felons using straw purchasers. In her report the magistrate judge recommended to the trial judge that the defendant's motion be denied and the trial judge adopted her recommendation. The judge emphasized that the charge to which Rietzke pleaded was for willful violations of gun control laws, which required a proof element different from those found in 18 U.S.C. sec. 924(a)(3) and 18 U.S.C. sec. 924(a)(1)(A). On August 30, 2000, Rietzke entered a conditional plea agreement in which he pleaded guilty to count two of the indictment *fn1 but reserved the right to challenge the trial judge's determination that the offense of conviction was a felony rather than a misdemeanor.
On appeal, Rietzke claims that the trial judge committed error in punishing him under the felony provision of sec. 924(a)(1)(D) for willful failure to maintain records contrary to sec. 922(b)(5), rather than under the misdemeanor provision of sec. 924(a)(3) for being a licensed dealer who knowingly makes a false statement or representation with respect to the information required to be kept in his records. We review de novo the trial ...