In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1802

United States of America,

Plaintiff-Appellee,

v.

John C. Rietzke,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 00-CR-88--Rudolph T. Randa, Judge.

Argued October 24, 2001--Decided February 4, 2002

 Before Harlington Wood, Jr., Coffey, and

Easterbrook, Circuit Judges.

 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.

I. Factual Background

 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 MAK90 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/1 but reserved the right

to challenge the trial judge’s

determination that the offense of

conviction was a felony rather than a

misdemeanor.

II. Issue

 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 judge’s interpretation of

the statutory scheme. United States v.

Hoogenboom, 209 F.3d 665, 669 (7th Cir.

2000).

III. Analysis

 Licensed firearms dealers are required

to maintain records of the persons to

whom they sell or deliver weapons.

Rietzke was convicted of violating sec.

922(b)(5), which provides in pertinent

part:

It shall be unlawful for any . . .

licensed dealer . . . to sell or deliver

. . . (5) any firearm . . . to any person

unless the licensee notes in his records,

required to be kept pursuant to section

923 of this chapter, the name, age, and

place of residence of such person . . .

.

 Section 922(b)(5) does not itself

contain a penalty provision. Instead, the

penalty provision can be found in sec.

924(a), which contains both a felony and

a misdemeanor provision. The felony

provision, sec. 924(a)(1), provides that:

(a)(1)Except as otherwise provided in

this subsection, subsection (b), (c), or

(f) of this section, or in section 929,

whoever--
(A) knowingly makes any false statement

or representation with respect to the

information required by this chapter to

be kept in the records of a person

licensed under this chapter . . . ;

(D) willfully violates any other

provision of this chapter,

shall be fined under this title,

imprisoned not more than five years, or

both . . . .

On the other hand, sec. 924(a)(3)

provides for misdemeanor penalties for

licensed dealers who "knowingly make[ ]

any false statement or representation

with respect to the information required

by the provisions of this chapter to be

in the records of a person licensed under

this chapter . . . ."

 Rietzke argues that by enacting sec.

924(a)(3) Congress elected to punish

firearms dealers who violate sec.

922(b)(5) more leniently than other

individuals, pointing out that sec.

924(a)(3) punishes violations of sec.

922(b)(5) as misdemeanors while sec.

924(a)(1)(A) punishes the same violations

as felonies. Rietzke assumes that,

because sec. 924(a)(3) and sec.

924(a)(1)(A) punish identical conduct,

Congress therefore intended to limit

prosecutorial discretion in selecting un

der which provision of the statute to

prosecute licensed firearms dealers.

Rietzke supports his argument by pointing

to United States v. Wegg, 919 F. Supp.

898, 901 (E.D. Va. 1996), which ruled

that sec. 924(a)(3) carved an exception

for licensed firearms dealers and thus

firearms dealers who violate sec.

922(b)(5) must be punished under the

misdemeanor provision rather than the

felony provision of the statute. Wegg

reasoned that because the statute

described "anoffense generally and

attribute[d] felony punishment to all

violators except for an excepted group .

. . those in the excepted group may only

be prosecuted for the misdemeanor." Wegg,

919 F. Supp. at 903.

 Of course Wegg carries no binding

authority, nor do we even find it

remotely persuasive. A reading of Wegg

reveals that the defendant was convicted

of aiding and abetting in the making of
false statements with respect to a

firearms transaction, and not a willful

failure to keep records. See Wegg, 919 F.

Supp. at 899. Rietzke urges us to

conclude that his behavior was similar to

that of the defendant in Wegg and argues

that he did keep the required records--

albeit a record he admittedly knew to be

false--because he made a record

reflecting that "Bobbie Day" was the

purchaser of the guns. But sec. 922(b)(5)

makes it unlawful for a licensed dealer

to "sell or deliver" a firearm to any

person "unless the licensee notes in his

records . . . the name, age, and place of

residence of such person . . . ." 18

U.S.C. sec. 922(b)(5) (emphasis added).

Although Rietzke made a false statement

in his records that he sold two firearms

to "Bobbie Day," he failed to make any

record whatsoever regarding Mitchell

Critton, the person to whom he delivered

the weapons, from whom he received

payments of $720 and $389, and whom he

well knew to be the actual purchaser of

the two guns referred to herein. Cf.

United States v. Choice, 201 F.3d 837,

841 (6th Cir. 2000) (discussing the

difference between cases in which the

defendant is charged with falsifying a

record and cases in which the defendant

fails to keep records). The prosecutor,

relying on the plain language of the

statute, did exercise prosecutorial

discretion and charged Rietzke with a

violation of the felony provision

contained in sec. 924(a)(1)(D), for

willfully failing to keep a record

regarding his sale of weapons and their

delivery to Critton.

 In any event, it matters little that

Rietzke now characterizes his conduct as

making a false record because the plea

agreement, which he knowingly and

voluntarily signed, and the indictment

under which he was charged plainly

charged him with the "willful failure to

keep records" regarding the person to

whom he sold or delivered firearms.

During the plea colloquy, the government

asserted in its offer a proof that

Rietzke failed to make any records for

the firearms he delivered to Mitchell

Critton other than the false records he

made reflecting that "Bobbie Day"

purchased the weapons, in spite of the

fact that he well knew he was required by

law to create a record for Critton. Thus,

the government established a factual
basis for the charge that Rietzke failed

to make a record for Mitchell Critton,

the person to whom he delivered and whom

he knew to be the actual purchaser of the

two firearms. Rietzke has not argued that

his guilty plea was not knowingly and

voluntarily made and thus cannot now

challenge the factual basis of his plea,

for a guilty plea admits, in legal

effect, the facts as charged. United

States v. Robinson, 14 F.3d 1200, 1205

(7th Cir. 1994).

 Moreover, Wegg is not convincing because

it focused on the similarity between sec.

924(a)(1)(A) and sec. 924(a)(3), both of

which punish a knowingly false statement

with respect to the required information

of sec. 922(b)(5). Wegg never did

discuss, much less consider, the

distinction between sec. 924(a)(1)(D),

which requires willful behavior, and sec.

924(a)(3), which requires a lesser degree

of culpability. Section 924(a)(3)

prohibits licensed firearms dealers from

knowingly making false statements or

representations in violation of sec. 922.

Section 924(a)(1)(D), on the other hand,

punishes willful violations of sec. 922.

"The only reasonable distinction between

section 924(a)(1)’s ’knowingly’ and

’willfully’ standards is that the latter

requires knowledge of the law." United

States v. Obiechie, 38 F.3d 309, 315 (7th

Cir. 1994); see also Bryan v. United

States, 524 U.S. 184, 193 (1998). Thus in

charging Rietzke under sec. 924(a)(1)(D)

the prosecution was required to prove

that Rietzke was aware of the law and

that he voluntarily and intentionally

violated a known legal duty, an element

it need not have proved had he been

charged under sec. 924(a)(3). Thus it is

clear that, under the plain language of

the statute, sec. 924(a)(1)(D)-- under

which Rietzke entered his plea of guilty-

-and sec. 924(a)(3) punish different

conduct, and the prosecutor had the

discretion to determine under which

provision she wished to charge Critton.

 Hence Rietzke’s claim that he should

have been charged under sec. 924(a)(3) is

contrary to the well-established

principles set forth in United States v.

Batchelder, 442 U.S. 114 (1979). The

Supreme Court has made clear that when

multiple criminal statutes apply to the

same conduct, the prosecutor has the

discretion to choose under which statute
to proceed. 442 U.S. 114; see also United

States v. Lov-It Creamery, Inc., 895 F.2d

410, 410 (7th Cir. 1990). Neither is a

defendant "’entitled to choose the

penalty scheme under which he will be

sentenced.’" United States v. Harbour,

809 F.2d 384, 392 (7th Cir. 1987)

(quoting Batchelder, 442 U.S. at 125). In

this case, the prosecutor in the exercise

of her prosecutorial discretion chose to

charge Rietzke under the felony provision

of the statute and not the misdemeanor

provision, and it was within her

discretion to do so.

 Rietzke makes two unconvincing attempts

to remove his case from the ambit of

Batchelder. First, 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. AlMuqsit, 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).

 Further, the legislative history fails

to support Rietzke’s argument. In the

words of a sponsor, the Firearms Owners

Protection Act, which added sec.
924(a)(3), was intended to ensure that a

dealer would not be "subjected to harsh

felony penalties for technical violations

of the rigid record-keeping standards" of

the Act. 131 Cong. Rec. 18, 187

(19850(statement of Sen. Hatch). The

plain language of the statute clearly

distinguishes between willful and knowing

violations of the law, and the literal

meaning of a statute should be overridden

only in those rare cases, and this is not

one of them, where that meaning is

demonstrably at odds with the intentions

of the drafters. United States v. Ron

Pair Enters., Inc., 489 U.S. 235, 242

(1989).

 Rietzke also argues that Batchelder does

not apply because a prosecutor may not

choose between two subsections of the

same statute. But such a rule makes no

sense, and an example will show why. The

statute governing the possession and

distribution of illegal drugs has

numerous subsections, many of which

overlap. 21 U.S.C. sec. 841. To suggest

that a prosecutor cannot exercise

discretion in the prosecution of a drug

dealer who distributes 2 kilograms of

heroin, and must proceed than sec.

841(b)(1)(B), which provides for a

maximum sentence of forty years, rather

than under 21 U.S.C. sec. 841(b)(1)(A),

which provides for a maximum term of

imprisonment of life, would be perverse.

We are not convinced with Rietzke’s

argument for he has failed to offer any

reason why Batchelder should so be

limited, and we remain convinced that

prosecutors must be free to determine

under which statute they proceed.

IV. Conclusion

 Rietzke’s argument that he should have

been punished under sec. 924(a)(3) rather

than under sec. 924(a)(1)(D) must fail.

Prosecutors in their exercise of

prosecutorial discretion are entitled to

determine under which statute to proceed.

In this case, the prosecutor chose to

prosecute Rietzke under the applicable

felony provision, rather than the

misdemeanor provision.

AFFIRMED.

FOOTNOTE

/1 As part of the terms of the plea agreement, the
government agreed to dismiss the other three

counts at the time of sentencing, though the

court could consider them at the time of sentencing.