United States v. Lacedra ( 1997 )

[Not for Publication]
United States Court of Appeals
For the First Circuit
No. 97-1286
UNITED STATES,
Appellee,
v.
GLENN P. LACEDRA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Circuit Judge.
Donald R. Furman, Jr. for appellant.
Robert E. Richardson, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for appellee.
December 1, 1997
Per Curiam. Defendant-appellant Glenn P. LaCedra
Per Curiam.
appeals his jury convictions for possession of an unlawfully
made destructive device under 26 U.S.C. 5861(c) and
possession of a destructive device not registered to him in
the National Firearms Registration and Transfer Record
pursuant to the requirements of 26 U.S.C. 5861(d). He
contends that the statutory obligations to apply for
permission to make, and to register, a pipe bomb constitute a
violation of his Fifth Amendment privilege against self-
incrimination. LaCedra also appeals from his sentence,
arguing that the district court clearly erred in finding that
he created a substantial risk of death or serious bodily
injury to another and attempted to commit first-degree
murder. We affirm.
Beginning with the sentencing issues, it is
apparent to us that the district court committed no clear
error. The court adopted the findings of defendant's
Presentence Report (PSR),1 which were based on evidence that
1. The PSR determined defendant's preadjustments offense
level through two separate routes. It first applied U.S.S.G.
2K1.4, covering arson and property damage by use of
explosives, to recommend a base offense level of 24 under
2K1.4(a)(1)(A) on a finding that defendant "knowingly"
created a substantial risk of death or serious bodily injury.
Based on the premise that defendant had intended to commit
murder, the PSR applied U.S.S.G. 2K1.4(c) to cross
reference 2K1.4(a)(1)(A) with U.S.S.G. 2A2.1(a)(1), the
attempted murder guideline, thereby increasing defendant's
base offense level to 28.
The PSR also alternatively calculated defendant's
offense level under U.S.S.G. 2K2.1, covering the unlawful
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showed, among other things, that after the victim spurned
defendant's persistent advances, LaCedra placed a pipe bomb
under her car near the gas tank. To create an ignition
device, he wrapped the bomb's fuse several times around the
vehicle's exhaust pipe, a "source of significant heat" when
the car was running. Further, the evidence showed that
defendant was familiar with bombmaking and that, in fact, the
positioning of the bomb under the victim's car was seemingly
designed to cause the gas tank to explode, raising the
potential for additional damage. This and other evidence,
including a detailed diagram that defendant drew showing the
placement of a pipe bomb under the victim's car, provided
ample basis for the court to determine, by a preponderance of
the evidence, that defendant had attempted to murder the
victim and that the object of the offense would have
constituted first-degree murder. Defendant's contentions
that he intended only to scare the victim and that the bomb
may well have never exploded even had it not been noticed and
removed do not undermine the court's conclusion. We end our
analysis here because our resolution of the attempted murder
possession of firearms, to arrive at a base level of 18,
which it then augmented six levels pursuant to 2K2.1(b)(3)
and (b)(5), and similarly cross-referenced under 2A2.1 to
arrive at the same offense level of 28.
The PSR concluded with a recommendation that the
base offense level of 28 be enhanced two levels because of
defendant's attempt to obstruct justice during his trial, an
enhancement not contested by defendant. See U.S.S.G.
3C1.1.
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issue also disposes of defendant's argument that he did not
knowingly create a substantial risk of death or serious
bodilyinjuryto anotherforpurposes ofU.S.S.G. 2K1.4(a)(1)(A).
Proceeding to defendant's constitutional issues, we
summarily note that 26 U.S.C. 5861(c) and 5861(d) do not
violate the Fifth Amendment. The Supreme Court has
explicitly held that 5861(d) satisfies the Fifth Amendment.
See United States v. Freed, 401 U.S. 601, 605-07 (1971). The
reasoning in Freed can be applied also to 5861(c). The
National Firearms Act places no obligation on a firearm
possessor, qua possessor, to seek to register a firearm. If,
as the evidence indicates, defendant made the pipe bomb at
issue, then he was required to submit an application to the
Bureau of Alcohol, Tobacco and Firearms before making the
bomb. Applying to make the device is a legal act, and had
defendant done so, his Fifth Amendment rights would not have
been implicated for the simple reason that his application
would have been denied.
Affirmed.
Affirmed
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