                                                    [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                             No. 96-5533

                 D. C. Docket No. 94-413-CR-FAM        FILED
                                                 U.S. COURT OF APPEALS
                                                   ELEVENTH CIRCUIT
                                                        09/04/98
UNITED STATES OF AMERICA,                           THOMAS K. KAHN
                                                         CLERK
                                                  Plaintiff-Appellee,

                               versus

JORGE ALBOROLA-RODRIGUEZ, a.k.a. Jorge A.
Alborola-Rodriguez; MAURICO BAUTISTA a.k.a.
Humberto Gutierrez,

                                               Defendants-Appellants.




          Appeals from the United States District Court
               for the Southern District of Florida
                         (September 4, 1998)



Before TJOFLAT and DUBINA, Circuit Judges, and SMITH*, Senior
Circuit Judge.

DUBINA, Circuit Judge:

__________________________
*Honorable Edward S. Smith, Senior U.S. Circuit Judge for the
Federal Circuit, sitting by designation.
                                 I.

     Appellants Maurico Bautista (“Bautista”) and Jorge Alborola-

Rodriguez (“Alborola”) appeal their convictions for violating 18

U.S.C. § 924(a)(1), and Alborola appeals his sentence imposed by
the United States District Court for the Southern District of

Florida.   As stated in their briefs, the defendants present the

following issues for appellate review:

(A) Bautista

     (1) Whether the district court improperly failed to dismiss

the indictment on grounds of outrageous governmental conduct.

     (2) Whether the district court improperly instructed the

jury that it could return inconsistent verdicts and convict

Bautista of unlawfully using a firearm during the commission of a

drug trafficking crime even if it did not convict him of

committing the drug trafficking crime.

(B) Alborola
     (1) Whether the jury verdict may stand where Alborola was

found not guilty of a substantive drug trafficking offense and

where the district court instructed the jury that it could find

Alborola guilty of a § 924(c)(1) offense even if it found him not

guilty of a drug trafficking offense.

     (2) Whether the evidence at trial was sufficient to support

Alborola’s conviction.

     (3) Whether the ten-year statutory sentence imposed in

Alborola’s case was erroneous.

     In addition, we consider sua sponte whether we must vacate

the portion of Alborola’s sentence that ordered deportation as a

condition of supervised release.

     After carefully reviewing the record in this case, as well

as reading the parties’ briefs and having the benefit of oral

                                   2
argument, we summarily affirm Bautista and Alborola’s

convictions.1 We also affirm Alborola’s sentence, except for the

district court’s imposition of deportation as a condition of

supervised release under 18 U.S.C. § 3583(d).

                                    II.

     Alborola requests that this court vacate his ten year

enhanced statutory sentence for using or carrying a short-

barreled shotgun during and in relation to a drug trafficking

offense, in violation of 18 U.S.C. § 924(c)(1).        The applicable

statutory penalty under § 924(c)(1) depends in part upon the type

of weapon the defendant used or carried.        The baseline penalty

for an ordinary “firearm” is five years imprisonment, but “if the

firearm is a short-barreled rifle, short-barreled shotgun, or

semiautomatic assault weapon,” the punishment is “imprisonment

for ten years.”        18 U.S.C. § 924(c)(1).   If the firearm is a

“machinegun, or a destructive device, or is equipped with a

firearm silencer or firearm muffler,” the penalty is 30 years in

prison.   Id.

     Alborola contends that three firearms were at issue in his

trial: a pistol, a short-barreled shotgun, and an M-1 rifle.          He

further contends that because the jury rendered only a general

guilty verdict without specifying which weapon or weapons they

unanimously found him to have used or carried, he should have

received only a five-year sentence.       Alborola cites persuasive



     1
           See 11th Cir. R. 36-1.

                                      3
authority for the proposition that, where the jury verdict does

not establish beyond a reasonable doubt that the defendant used

or carried a firearm that subjects him to a term greater than

five years under 18 U.S.C. § 924(c)(1), the enhanced sentence may

not be affirmed.           See United States v. Melvin, 27 F.3d 710 (1st

Cir. 1994).         Alborola’s argument necessarily implies his belief

that firearm type is an element of 18 U.S.C. § 924(c)(1).

       The government responds that the type of firearm is not an

element of 18 U.S.C. § 924(c)(1), and therefore, it was not a

question for the jury, but rather a question for the sentencing

court.       In any event, the government argues that trial evidence

established that Alborola handled a short-barreled shotgun.
                                               III.

       Because Alborola’s argument presents a question of statutory

interpretation of 18 U.S.C. § 924(c)(1), this court applies de

novo review.         See United States v. McArthur, 108 F.3d 1350, 1353

(11th Cir. 1997).           However, Alborola did not argue at trial that

firearm type is an element of the offense requiring specific jury

findings, nor did he argue at sentencing that the lack of

specific jury findings rendered a ten year enhanced sentence

inapplicable.2          Therefore, we review Alborola’s contention for

plain error.         See Fed.R.Crim.P. 52(b); McArthur, 108 F.3d at 1353

n.3.       Because the first step in plain error analysis is

determining whether error occurred, see Johnson v. United States,


       2
                In fact, at Alborola’s urging, the district court excluded evidence on firearm type
as being irrelevant at trial and pertinent only to sentencing. (R10:101-103).

                                                 4
520 U.S. 461, ___, 117 S.Ct. 1544, 1549 (1997), we must interpret

§ 924(c)(1) and determine whether specific jury findings are

required    before a defendant may be sentenced to an enhanced term

for carrying or using certain firearms.    This is a question of

first impression in this circuit.
                                 IV.

     As stated previously, Alborola relies upon the First Circuit

decision of United States v. Melvin, 27 F.3d 710 (1st Cir. 1994).

In fact, Melvin does not adequately support Alborola’s position.

In Melvin, unlike the present case, the government conceded that

§ 924(c)(1)’s enhanced penalty provisions required specific jury

findings on firearm type.    Id. at 714.   Because the issue was

undisputed, the First Circuit expressly declined to reach the

issue of whether firearm type is an element of § 924(c)(1).        Id.

at 715 n.9.   The actual holding of Melvin is merely that reversal

of an unenhanced five-year § 924(c) sentence is not required

where the jury’s verdict did not unambiguously establish the

involvement of a machine gun, one of many firearms charged in the

count of conviction. Id.; see also See United States v. Branch,

91 F.3d 699, 740 (5th Cir. 1996) (discussing the limited holding
of Melvin), cert. denied, 117 S.Ct. 1466 (1997).

     Although the First Circuit in Melvin assumed that firearm

type is an element of § 924(c)(1), other circuits are divided on

this issue.   According to the Fifth Circuit, firearm type is only

a factor to be determined at sentencing by a preponderance of the

evidence.   See Branch, 91 F.3d at 737-41.   In Branch, the

                                  5
defendants were indicted and convicted only of using or carrying

“firearms,” but four defendants received enhanced 30-year

sentences for using machine guns.    Id. at 710-11, 738.    They

argued that because the indictment and jury verdict only

indicated that they were guilty of carrying “firearms,” they

should have received five- year sentences.    Id. at 738.    Relying

on the structure of § 924(c)(1) and its legislative history, the

Fifth Circuit held that “[t]he Government need not charge in the

indictment nor must the jury find as part of its verdict the

particular type of firearm used or carried by the defendant.”

Id. at 740.

     In a case decided shortly after Branch, the Ninth Circuit

held that “where the government seeks more than the minimum five

year consecutive sentence” under § 924(c)(1), the type of firearm

“must be found by the jury; that is to say, it is an element of

the crime.”   United States v. Alerta, 96 F.3d 1230, 1235     (9th
Cir. 1996).   The Sixth Circuit reached a similar conclusion in

United States v. Sims, 975 F.2d 1225, 1235-36 (6th Cir. 1992).

     After reviewing each of the precedents from our sister

circuits relative to this issue, we conclude that the Fifth

Circuit’s Branch decision as reaffirmed in United States v.

Gonzales, 121 F.3d 928, 941 (5th Cir. 1997), cert. denied, 118
S.Ct. 726, (1998) has the better side of the argument.

     In conclusion, we hold that the type of firearm involved in

a § 924(c) offense is not an element of the offense and is thus

not a question for the jury; instead, it is a sentencing question

                                 6
to be resolved by the sentencing court by a preponderance of the

evidence.
                                 V.

     We also note from the record that the district court ordered

Alborola judicially deported as a condition of supervised release

under 18 U.S.C. § 3583(d).   Alborola did not object to this order

at sentencing, and neither he nor the government mentions the

issue in their briefs.   Nonetheless, this court must sua sponte

address the district court’s subject matter jurisdiction if it

appears lacking.   See Rickard v. Auto Publisher, Inc., 735 F.2d

450, 453 n.1 (11th Cir. 1984).
     In United States v. Romeo 122 F.3d 941, 943-44 (11th Cir.

1997), we held that 8 U.S.C. § 1229a(a), enacted by the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRAIRA”), deprives district courts of jurisdiction to order

deportation as a condition of supervised release under 18 U.S.C.

§ 3583(d).   As a jurisdiction ousting statute, 8 U.S.C. §

1229a(a) applies to all appeals pending on April 1, 1997, the

effective date of the IIRAIRA.   See Romeo, 122 F.3d at 944.

Because the district court lacked authority to order Alborola

deported under 18 U.S.C. § 3583(d), we must vacate the portion of

the district court’s judgment ordering deportation and remand for

further proceedings consistent with Romeo.   On remand, the

district court may either delete the deportation condition or

modify it by deleting the judicial order of deportation, but

providing that Alborola, at the appropriate time, shall be turned

                                 7
over to the Immigration and Naturalization Service for

deportation proceedings pursuant to the IIRAIRA.   Because either

course of action on remand will operate in Alborola’s favor,

there is no need for a new sentencing hearing on this issue.   In

the alternative, the district court may, in its discretion, hold

a new sentencing hearing, if the court desires to make other

changes in the sentence.

     AFFIRMED in part, VACATED in part, and REMANDED.




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