
USCA1 Opinion

	




                                [Not for Publication]                            United States Court of Appeals                                For the First Circuit                                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                                         -2-                                          2            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.                                          -3-                                          3            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                      ________                                         -4-                                          4
