In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4223

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARCELO SANDOVAL,

Defendant-Appellant.



Appeal from the United States District Court
for the Central District of Illinois.
No. 99-CR-40019--Joe B. McDade, Chief Judge.


Argued January 24, 2001--Decided February 20, 2001



  Before FLAUM, Chief Judge, and EVANS and WILLIAMS,
Circuit Judges.

  EVANS, Circuit Judge. A fresh question raised in
this case is whether the classification of a
firearm as a "semiautomatic assault weapon" under
18 U.S.C. sec. 924(c)(1)(B)(i), is a sentencing
factor or an element of the offense (of using and
carrying a firearm in connection with a crime of
violence or drug trafficking). If it’s an
element, it must be submitted to a jury and
proven beyond a reasonable doubt. We hold that it
is a sentencing factor.

  Marcelo Sandoval, a Chicagoan alleged to be a
drug supplier for an Iowa gang called the Quad
Cities Bishops, was indicted and convicted after
a jury trial on three counts: kidnapping in
violation of 18 U.S.C. sec. 1201(a)(1); using and
carrying a firearm--during a kidnapping--in
violation of sec. 924(c); and conspiracy to
possess marijuana, cocaine, and methamphetamine
with intent to distribute in violation of 21
U.S.C. sec. 846. He was sentenced to 20-year
concurrent terms on the kidnapping and drug
charges and 10 years consecutive on the sec.
924(c) count.

  A lengthy excursion into the facts of this case
is not required, but here is a short synopsis:

Sandoval thought a fellow named Rivas double-
crossed him on a drug deal by misdirecting a
shipment of pot from Mexico to Iowa rather than
Chicago. Sandoval, a relative (either a cousin or
a nephew; the record refers to both), Hector
Sandoval, and a few others kidnapped Rivas in
Iowa, drove him at gunpoint to Chicago, and held
him several days as collateral until their
marijuana was returned. Several guns were
employed by the kidnappers, including an AP-9, 9
millimeter Luger commonly known as a "Tech 9," a
semiautomatic weapon which was held by Hector.
The kidnapping was foiled by police, tipped off
by Rivas’ wife, who broke into the house where
the party was going on.

  The success of this appeal rests on a broad
reading of Apprendi v. New Jersey, ___ U.S. ___,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), which
held that any fact, other than a prior
conviction, that increases the penalty for a
crime beyond the prescribed statutory maximum,
must be submitted to a jury and proved beyond a
reasonable doubt. See id. at 2362-63. But
Apprendi did not overrule McMillan v.
Pennsylvania, 477 U.S. 79 (1986), which upheld a
keystone state statute requiring the imposition
of a mandatory minimum sentence based on a
finding by the judge, not a jury, that the
defendant possessed a firearm during the
commission of his offense of conviction. Rather,
Apprendi limited McMillan’s holding "to cases
that do not involve the imposition of a sentence
more severe than the statutory maximum for the
offense established by the jury’s verdict . . .
." Apprendi, 120 S. Ct. at 2361 n.13. Relying on
McMillan, Apprendi is inapplicable here because
convictions under sec. 924(c)(1)(A) carry a
statutory maximum sentence of life imprisonment,
regardless of what subsection the defendant is
sentenced under. So the classification of the
firearm--here as a semiautomatic assault weapon--
did not increase the maximum possible penalty;
rather, it raised the mandatory minimum penalty
from 5 to 10 years.

  Sandoval relies on Castillo v. United States,
___ U.S. ___, 120 S. Ct. 2090 (2000), for the
proposition that the statutory reference to
firearm types in 18 U.S.C. sec. 924(c)(1)(B)
creates separate substantive offenses, not
sentencing factors. Castillo,/1 however, is
distinguishable. There, the Court examined an
earlier version of sec. 924(c)(1), which provided
in relevant part:

(c)(1) Whoever, during and in relation to any
crime of violence . . . ,

uses or carries a firearm, shall, in addition to
the punishment provided for such crime of
violence . . . , be sentenced to imprisonment for
five years, and if the firearm is a short-
barreled rifle [or a] short-barreled shotgun to
imprisonment for ten years, and if the firearm is
a machine gun . . . to imprisonment for thirty
years.

18 U.S.C. sec. 924(c)(1) (1988 ed., supp. V).
Castillo holds that this earlier version of sec.
924(c)(1) created separate criminal offenses
based on the type of firearm used. But in
reaching this conclusion the Court emphasized
that the statute’s structure placed the elements
of the crime in a single sentence followed by
subsections referring directly to sentencing
issues. Castillo, 120 S. Ct. at 2093 ("Congress
placed the element ’uses or carries a firearm’
and the word ’machine gun’ in a single sentence,
not broken up with dashes or separated into
subsections."). Accordingly, this structure
signaled that "the basic job of the entire first
sentence is the definition of crimes . . . ."
Castillo, 120 S. Ct. at 2093.

  The sentence structure of the present
incarnation of sec. 924(c)(1)--the version at
issue here--is different. And that was recognized
in Castillo: "[I]n 1998 Congress reenacted sec.
924(c)(1), separating different parts of the
first sentence (and others) into different
subsections." 120 S. Ct. at 2093. Now, the first
clause of sec. 924(c)(1), standing alone, defines
the offense of using or carrying a firearm during
a crime of violence, while subsections (A) and
(B) single out subsets of those persons [those
who carry or use firearms during crimes of
violence or drug trafficking] for more severe
punishment. In addition, the subsections under
(A) and (B) are separated from the offense clause
of the statute by the word "shall"--a clear
indication that what follows are sentencing
provisions. See Jones v. United States, 526 U.S.
227, 234 (1999); Castillo, 120 S. Ct. at 2093.
Other circuits have concluded that these
structural distinctions weigh in favor of
treating new sec. 924(c)(1) as defining a single
crime with a choice of sentencing penalties based
on the presence or absence of various facts,
rather than as a statute that defines multiple
separate criminal offenses. See United States v.
Pounds, 230 F.3d 1317 (11th Cir. 2000) (holding
that sec. 924(c)(1)(A)(iii) is a penalty
provision with stiffer sentencing implications
when a firearm is discharged); United States v.
Carlson, 217 F.3d 986 (8th Cir. 2000), petition
for cert. filed, Nov. 16, 2000 (holding that sec.
924(c)(1)(A)(i) is a penalty provision with
sentencing implications when a firearm is
brandished). Agreeing with this authority, we
hold that the classification of the weapon used
in a sec. 924(c) prosecution is a sentencing
factor.

  The two other issues in this appeal require
little comment. During the trial, one of the
jurors gave a letter to the judge indicating
that, after seeing a witness the previous day,
she realized she knew him, apparently having
served as his tutor in the Moline (Illinois)
school district. This prompted the judge to call
the matter to the attention of the attorneys, and
Sandoval’s lawyer, during an in-chambers
conference, said he didn’t want the juror to
remain on the panel and that he "would have
exercised a peremptory" on her if he had known
about her familiarity with the witness when the
jury was selected. Removing the questioned juror
and replacing her with an alternate, on this
record, is far from an abuse of discretion, the
standard by which the judge’s actions are
reviewed. See United States v. Zizzo, 120 F.3d
1338, 1349 (7th Cir. 1997).

  Similarly, Sandoval’s challenge to the
sufficiency of the evidence supporting the
kidnapping conviction is a nonstarter. His
challenge is essentially an attack on the
credibility of various witnesses to Rivas’
abduction and confinement. But that testimony
supported a finding that Rivas was moved across
state lines at gunpoint and repeatedly told he
would be killed unless he coughed up the
marijuana. Having reviewed this evidence, we have
no hesitation about concluding that, if believed,
as it obviously was, it was sufficient to support
the jury’s verdict.
AFFIRMED.


/1 Although decided in 2000, Castillo was an old
case (governed by old law) involving the Branch
Davidian religious sect and its violent 1993
confrontation with federal agents in Waco, Texas.
