

                    [Not for Publication]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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