A jury found Hiram Abiff McCullough guilty of five counts of willfully selling firearms without recording the name, age, and residence of the buyer, 18 U.S.C. §§ 922(b)(5), 924(a)(1)(D), and one count of aiding and abetting another in willfully engaging in the business of dealing firearms without a license, 18 U.S.C. §§ 922(a)(1)(A), 924(a)(1)(D). McCullough sought to submit to the jury an instruction that a recordkeeping offense under 18 U.S.C. § 922(m) is a lesser-included offense of § 922(b)(5). The district court refused to submit the instruction, and McCullough appeals. Because the distriсt court should have instructed the jury that § 922(m) is a lesser-included offense of § 922(b)(5), we reverse McCullough’s five convictions under § 922(b)(5) and remand the case for further proceedings.
I.
McCullough, a licensed firearms dealer, operated a gun shop that ATF agents began investigating in 2001. Dean West was a regular customer at McCullough’s shop, and ATF agents had recently arrested *622 West for dealing in firearms without a license. West coopеrated with the agents and agreed to make several “controlled buys” at McCullough’s shop. Under the direction of the ATF agents, West on five occasions purchased used firearms on display at McCullough’s shop. McCullough did not complete ATF form 4473 for any of the five transactions. Because a licensed dealer must complete ATF form 4473 whenever selling a firearm, 27 C.F.R. § 478.124(a), ATF agents obtained a search warrant and interviewed McCullough after advising him of his Miranda rights.
During the interview McCullough explained that West would purchase used firearms from his store in two ways. The first and most common way was that a customer with a firearm to sell would approach McCullough, and he would call West, who would come to the store and buy the firearm directly from the customer. Alternatively, if West could not come to the shop to purchase the firearm, McCullough would hold thе used firearm for him. If the customer wanted to purchase a new firearm, McCullough would charge only the difference between the price of the new firearm and the value of the used firearm, in anticipation that West would pay the difference. McCullough explained in the interview that he did not believe that he needed to record the transactions of the used firearms:
RN [Special Agent Robert Nosbisch]: Ok. And there was also instance [sic] where the individual would come here, leave the gun with you. You would sell the gun to Dean West and you would collect the money. Is that correct?
HM [Hiram McCullough]: Yes. I was acting as, it was a, a made up deal. You know. The deal was made and uh the guy couldn’t wait around, so I collected the money.
RN: Ok. Why did you not put these—
HM: It was less than twenty-four hours. That’s the only thing where I’m really screwed up I guess, the twenty-four hour thing.
RN: When someone left a gun here?
HM: Yeah.
RN: Ok. But do you understand that any guns that come, any gun that comes in your store is required to be put on your books if you’re selling it. Or the transaction occurs where someone else acquires a gun. You understand that?
HM: I’m going to be honest with you.
RN: Unhuh.
HM. I did not understand. I thought the twenty-four hour thing was in there. I apologize.
RN: No, no that’s (inaudible).
HM: I really thought the twenty-four hour thing covered my butt.
Later at trial McCullough elaborated on the “twenty-four hour” rule, which he understood to mean that “if a gun did not stay in the budding by the end of the business day on the following day, ... [y]ou didn’t have to disclose those firearms in your books.”
At trial McCullough testified regarding his policy of not accepting “trade-ins,” ie., used firearms that customers wanted to exchange for new firearms. He explained that in the early 1990s he decided to stop accepting them because his wife “almost got shot” by a used firearm that a customer had altered by doing a “trigger job on it.” McCullough admitted that he wоuld sometimes hold used firearms for West, but he emphasized that he never made a profit on those transactions. He testified that he believed that he did not have to complete ATF form 4473 for those transactions because he did not consider the used guns to be his “property.” Additionally, he testified that he thought that he *623 did not have to record those transactions based on the “24-hour rule.”
McCullough also called as witnеsses several customers who originally owned the used firearms that were the subjects of the controlled buys. For example, Steve Pad-dick owned a Taurus .44 Magnum that West purchased during the fourth controlled buy. Paddick testified that he brought the Taurus to McCullough’s shop and that McCullough told him that he would try to help sell it. Paddick then put a price of $450 on the Taurus and left it at the shop. About two weeks later Paddick received a сall from West, who offered to pay $425 for the Taurus. Paddick agreed to that price, and West went to McCullough’s shop to purchase the Taurus.
At the end of the trial McCullough asked the court to submit to the jury an instruction explaining that a recordkeeping offense under § 922(m) is a lesser-included offense of § 922(b)(5). The district court heard arguments from counsel and compared the statutes side-by-side. Section 922(b)(5), the charged offеnse, provides that
(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver—
(5) any firearm or armor-piercing ammunition 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 if the person is аn individual, or the identity and principal and local places of business of such person if the person is a corporation or other business entity.
The scienter requirement for § 922(b)(5) is found in § 924(a)(1)(D):
(a)(1) Except as otherwise provided in this subsection, subsection (b), (c), or (f) of this section, or in section 929, whoever—
(D) willfully violates any other provision of this chapter, shall be fined under this title, imprisoned not more than five years, or both.
(Emрhasis added). The offense for which McCullough sought a jury instruction, § 922(m), provides that
It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector knowingly to make a false entry in, to fail to make appropriate entry in, or to fail to properly maintain, any record which he is required to keep pursuant to section 923 of this chapter or regulations prоmulgated thereunder.
A violation of § 922(m) is punished as a misdemeanor pursuant to § 924(a)(3)(B).
After comparing the elements of each offense, the district court concluded that § 922(m) is not a lesser-included offense of § 922(b)(5) because § 922(m) can be violated in ways that would not violate § 922(b)(5). Nevertheless, the court was “given pause because it [was] hard pressed to conceive how a defendant’s failure to note a firearm purchaser’s name, age or place of residence in his records could ever not constitute a failure to ‘make appropriate entry in’ [sic] a record under the law as it now stands.” The court went on to hold that, although § 922(m) is not a lesser-included offense of the § 922(b)(5), “if it was a lesser included offense, there was sufficient evidence to give that [instruction] to the jury.”
II.
McCullough argues that the district court erred in refusing to instruct the jury that § 922(m) is a lesser-included offense *624 of § 922(b)(5). He also contends that, in any event, § 922(b)(5) is punishable as a misdemeanor, not a felony, and at the very least we should remand the case for resen-tencing.
A. Lesser-included offense
To be entitled to an instruction regarding a lesser-included offense, a defendant must establish that (1) the offense on which he seeks an instruction is a lesser-included offense of the one charged, and (2)a rationаl jury could find him guilty of the lesser offense but not guilty of the greater offense.
Schmuck v. United States,
The district court held that McCullough failed to satisfy the first prong of the test because the elements of § 922(m) are not a subset of the elements of § 922(b)(5). Under Federal Rule of Criminal Procedure 31(c), a jury may find the defendant guilty of “an offense necessarily included in the offense charged.” To determine whether a particular offense is “necessarily includеd” in the charged offense, courts apply the “elements” test, which holds that a lesser offense is necessarily included in the charged offense if its elements are a subset of the elements of the charged offense.
Schmuck,
No court has analyzed whether § 922(m) is a lesser-included offense of § 922(b)(5), and we will approach the issue by comparing the statutes side-by-side. The elements of an offense charged under § 922(b)(5) are:
(1) that the defendant is a licensed dealer;
(2) that the defendant sold a firearm to a person;
(3) without noting in his required records the name, age, and place of residence of the person; and
(4) that the defendant did so willfully.
The elements of an offense charged under § 922(m) are:
(1) that the defendant is a licensed dealer;
(2) that the defendant made a false entry in, failed to make an appropriate entry in, or failed to properly maintain his required records; and
(3) that the defendant did so knowingly-
We see three differences between § 922(b)(5) and § 922(m) that we must analyze to determine whether § 922(m) is a lesser-included offense, and we will discuss first the most complex difference. One element of § 922(b)(5) is that the defendant failed to record the name, age, and place of residence of the buyer. The corresponding element of § 922(m) is that the dеfendant made a false entry in, failed to make an appropriate entry in, or failed to properly maintain the required records. Obviously, the text of these elements are literally different, but the “elements” test is not so narrow that it does not encompass the normal principles of statutory construction.
See Carter v. United States,
The government argues that § 922(m) cannot be a lesser-included offense of § 922(b)(5) because there are “multiple events which could trigger a viоlation of § 922(m)” that would not violate § 922(b)(5). While that may be true, the government ignores the fact that it is impossible for a defendant to violate § 922(b)(5) without also violating § 922(m).
See Schmuck,
To put it another way, insofar as the statutory elements are concerned, proof of the greater offense invariably will prove the lesser offense.
See id.
at 717,
We found only one federal case that addresses the issue of a lesser offense that can be violated in multiple ways, at least one of which would not violate the greater offense.
See United States v. Alfisi,
The remaining two differences between § 922(b)(5) and § 922(m) are more straightforward. Section 922(b)(5) requires a sale or delivery of a firearm, while § 922(m) does not. The government relies heavily on this difference in support of its argument that § 922(m) is not a lesser-included offense, but that difference is irrelevant because what matters is whether the
lesser
offense, not the greater one, has an additional element.
Schmuck,
The final difference between the two statutes is that the charged offense requires that the defendant act “willfully,” while the lesser offense, § 922(m), requires that the defendant act “knowingly.” But that difference does not preclude § 922(m) from being a lesser-included offense because the “knowingly” standard is a subset of the “willfully” standard. In the context of the statutes in question, to act “knowingly” the defendant need only “inten[d] to do the act that is proscribed by law,”
United States v. Obiechie,
As for the second prong, a district court must instruct the jury regarding a lesser-included offense only if a rational jury could have found the defendant guilty of the lesser offense but not guilty of greater offense.
Schmuck,
The district court concluded that if § 922(m) was a lesser-included offense of § 922(b)(5), then “there was sufficient evidence to give that [instruction] to the jury.” The government does not challenge that holding and fails to even mention the second prong of the test for instructing the jury on lesser-included offenses. But even if the government had challenged this part of the district court’s decision, we would review it only for an abuse of discretion.
Hill,
The two elements necessary for § 922(b)(5), but not required for § 922(m), are (1) the sale or delivery of a firearm; and (2) knowledge of the law, i.e., the difference between acting “willfully” and “knowingly.” It was not an abuse of discretion for the district court to conclude that these elements were sufficiently in dispute such that the jury rationally could find McCullough guilty of § 922(m) and not guilty of § 922(b)(5). At trial McCullough testified that he did not consider the trade-ins as his own property, and he pointed to the fact that he did not make a profit on those firearms. Thus, the jury could have concluded that those transactions did not constitute a “sale or delivery” of a firearm. Additionally, at trial and in his interview with the ATF agents, McCullough explained that he believed that he did not need to complete ATF form 4473 for the trade-ins because of the “24-hour rule.” Thus, the jury could have concluded that McCullough did not have “knowledge of the law” and did not act willfully. Accordingly, McCullough presented evidence to sufficiently dispute the two elements required by § 922(b)(5), but not for § 922(m), and he therefore satisfied the second prong of the test for instructing the jury regarding a lesser-included offense.
One might argue that the jury obviously felt that there was sufficient evidence to convict McCullough of the greater offense because that is exactly what the jury did. The jury, however, was never given the option to convict McCullough of anything less than § 922(b)(5). “[W]here the jury
*628
suspects that the defendant is plainly guilty of
some
offense, but one of the elements of the charged offense remains in doubt, in the absence of a lesser offense instruction, the jury will likely fail to give full effect to the reasonable-doubt standard, resolving its doubts in favor of conviction.”
Schmuck,
B. Sentencing Issue
Finally, McCullough contends that the district court erroneously sentenced him under the felony provision in 18 U.S.C. § 924(a)(1)(D) because, he argues, Congress intended that all record-keeping offenses committed by licensed firearms dealers be punished as misdemeanors pursuant to 18 U.S.C. § 924(a)(3). He relies on several district court cases but simply fails to accept that we have already rejected this argument.
See Rietzke,
III.
Because the district court erroneously concluded that § 922(m) is not a lesser-included offense of § 922(b)(5) and thus did not so instruct the jury, we REVERSE McCullough’s five convictions under § 922(b)(5) and Remand the case to the district court. Additionally, because McCullough does not challеnge his conviction for aiding and abetting another in willfully engaging in the business of dealing firearms without a license, 18 U.S.C. §§ 922(a)(1)(A), 924(a)(1)(D), we AffiRM that conviction.
Notes
. The government argued before the district court that the elements of these two offenses are different because they refer to different records required to be kept under 18 U.S.C. § 923. According to the government, the required record for § 922(b)(5) is ATF form 4473, which must be completed whenever a dеaler sells a firearm. The required record for § 922(m), the government argued, is an "acquisition or disposition book.” This argument, which the government has abandoned on appeal, lacks merit because a licensed dealer violates § 922(m) by failing to make an appropriate entry in "any record which he is required to keep pursuant to section 923 of this chapter or regulations promulgated thereunder.” (Emphasis added). Thus, thе government is incorrect that § 922(m) refers only to records in an “acquisition or disposition book,” and ATF form 4473 qualifies as "any record” because it is a record required to be kept pursuant to 27 C.F.R. § 478.124(a).
. The dissenting judge did not disagree with the majority on this point, concluding only that "I think it is an open question whether the elements test precludes a charge on a lesser offense that requires 'A or B’ when the greater offense requires merely 'A.' ”
Alfisi,