United States v. Lacedra ( 1997 )

USCA1 Opinion

                                [Not for Publication]

                            United States Court of Appeals

                                For the First Circuit

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        No. 97-1286



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                  GLENN P. LACEDRA,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Reginald C. Lindsay, U.S. District Judge]
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                                        Before



                                 Selya, Circuit Judge,
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                            Coffin, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
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            Donald R. Furman, Jr. for appellant.
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            Robert E. Richardson, Assistant United  States Attorney, with whom
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        Donald K. Stern, United States Attorney, was on brief for appellee.
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                                   December 1, 1997

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                      Per Curiam.   Defendant-appellant Glenn  P. LaCedra
Per Curiam.
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            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




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            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




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            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.
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            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
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            reasoning in Freed  can be applied  also to    5861(c).   The
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            National  Firearms  Act  places no  obligation  on  a firearm



            possessor, qua possessor, to seek to register a firearm.  If,
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            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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