United States Court of Appeals
For the First Circuit
No. 04-1411
UNITED STATES OF AMERICA,
Appellee,
v.
RAMON LAUREANO-VELEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Howard, Circuit Judges.
Lorenzo J. Palomares on brief for appellant.
Thomas F. Klumper, Assistant United States Attorney, H.S.
Garcia, United States Attorney, Nelson Perez-Sosa, Assistant United
States Attorney, and German A. Rieckehoff, Assistant United States
Attorney, on brief for appellee.
September 15, 2005
Per Curiam. After drugs and guns were seized from
defendant's house pursuant to his arrest for a local probation
violation, he was indicted on one count of possessing with intent
to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), and
one count of possessing a firearm, including a "Ruger Mini 14
semiautomatic assault rifle with a black pistol grip and a
stainless steel folding stock," in furtherance of the marijuana
offense, in violation of 18 U.S.C. § 924(c)(1).1 Defendant pled
guilty to those two counts. In this appeal from his sentence,
defendant challenges (1) the imposition of a 10-year mandatory
minimum sentence on the assault-weapon charge and (2) the alleged
delegation to the probation department of the determination of the
number of drug tests he must take while on supervised release.
Finding no merit to these challenges, we affirm.
Defendant's first argument concerning his sentence on the
assault-weapon count is that he was entitled to have a jury
determine, beyond a reasonable doubt, whether he possessed an
"assault weapon" within the meaning of the applicable statute. In
support of that argument in the district court, he relied on
Castillo v. United States, 530 U.S. 120 (2000), which held, as a
1
At all times pertinent here, 18 U.S.C. § 924(c)(1)(B)(i)
provided a 10-year mandatory minimum sentence for possessing a
"semiautomatic assault weapon" in furtherance of a drug trafficking
crime, Pub. L. No. 103-322, 108 Stat. 1796, § 110102(c) (1994).
That and the other statutory references to "semiautomatic assault
weapons" cited below were repealed effective September 13, 2004.
Id. § 110105(2).
-2-
matter of statutory construction, that the references to firearm
types in 18 U.S.C. § 924(c)(1) define a separate crime (rather than
a sentencing factor) that must be proven to a jury beyond a
reasonable doubt. 530 U.S. at 131. On appeal, he also relies on
Blakely v. Washington, 124 S. Ct. 2531 (2004), for the proposition
that a jury determination on that issue was constitutionally
required.2
The short answer to defendant's claim that he was
entitled to a jury determination on the assault-weapon issue--
either on statutory or on constitutional grounds--is that he waived
his right to jury consideration of that issue by pleading guilty.
United States v. Serrano-Beauvaix, 400 F.3d 50, 56 (1st Cir. 2005).
Although his counsel reserved the right to argue at
sentencing that the Ruger rifle is not an "assault rifle" and is
exempt from the applicable statute, that reservation, taken in
context, at most reserved those issues to be decided by a judge at
sentencing, not by a jury. As the Supreme Court recognized in
Blakely itself: "When a defendant pleads guilty, the [government]
is free to seek judicial sentence enhancements so long as the
2
In a post-briefing motion to remand, defendant argued that
United States v. Booker, 125 S. Ct. 738 (2005), also requires that
the firearm type be proved to a jury beyond a reasonable doubt, but
he declined this court's invitation to submit a supplemental brief
on that issue. His Booker claim is therefore waived. See United
States v. Vega Molina, 407 F.3d 511, 534 n.7 (1st Cir. 2005).
-3-
defendant . . . consents to judicial factfinding," Blakely, 124 S.
Ct. at 2541, which is what occurred here.
Defendant's next assault-weapon challenge is that the
judge made no finding that the Ruger 14 was an "assault weapon."3
That contention is defeated by the record. After listening to
defendant's objections to the finding, contained in the presentence
investigation report, that the Ruger 14 had the characteristics of
a semiautomatic assault weapon set forth in the statutory
definition, the court expressly found "that at [the] time of the
arrest the defendant possessed a Ruger mini 14 semiautomatic
assault weapon [and that] . . . this particular weapon did have the
characteristics of an assault weapon for purposes of the statute."
Contrary to defendant's next contention, that finding was
amply supported by the evidence in the record, including a report
of the Firearms Technology Branch of the United States Bureau of
Alcohol, Tobacco and Firearms that the Ruger Mini 14 "accepts a
detachable magazine and has a folding stock and a pistol grip that
protrudes conspicuously beneath the action of the weapon." After
conducting her own investigation, the probation officer reached the
same conclusions.
3
"Semiautomatic assault weapon" is defined to include "a
semiautomatic rifle that has an ability to accept a detachable
magazine and has at least 2 of--(i) a folding or telescoping stock;
(ii) a pistol grip that protrudes conspicuously beneath the action
of the weapon;" and three other characteristics not relevant here.
18 U.S.C. § 921(a)(30) (1994).
-4-
The only evidence purportedly to the contrary is a
conclusory statement by defendant's expert that the "conventional
design[] of the mini 14 Sturm Ruger does not represent an assault
weapon." However, even if true, that statement is rendered
irrelevant by the probation officer's uncontested finding that the
weapon had been altered from its original design to include the
requisite characteristics.
Finally, defendant challenges the district court's
rejection of his argument that his possession of the weapon was
exempt from liability under section 924(c)(1) because the weapon
was manufactured before the enactment of the assault weapon ban in
1994. In support of that argument, defendant relies on 18 U.S.C.
§ 922(v)(2), which exempts from the ban on simple possession of a
semiautomatic assault weapon, 18 U.S.C. § 922(v)(1), weapons that
were lawfully possessed before enactment of the ban. Defendant
argues that section 922(v)(2), the so-called "grandfather" clause,
exempts him from prosecution for possessing a pre-ban assault
weapon in furtherance of a drug offense under section 924(c)(1).
However, as other courts have recognized, the most sensible reading
of the grandfather clause, consistent with its language and
purpose, is to create an exception for pre-ban weapons only with
respect to the separate crime of simple possession of such weapons
under § 922(v)(2). United States v. Ray, 411 F.3d 900, 905-06 (8th
-5-
Cir. 2005); United States v. Vega, 392 F.3d 1281, 1282-83 (11th
Cir. 2004) (per curiam).
The only remaining claim raised by defendant on appeal is
that the district court impermissibly delegated to the probation
department the determination of the maximum number of drug tests
the defendant would have to take while on supervised release. The
short answer to that contention is that no such delegation
occurred.4 Rather, the district court itself required that
defendant submit to random drug testing "not to exceed 104 samples
per year." Although the written judgment--stating that defendant
must submit to "at least two" drug tests after his initial one--
differs from that oral pronouncement, the oral version controls.
United States v. Flemmi, 402 F.3d 79, 96 n.26 (1st Cir. 2005).
Accordingly, the case is remanded to the district court
for the sole purpose of modifying the drug-testing condition set
forth in the written judgment to conform to the condition stated
orally at sentencing. In all other respects, the district court's
judgment is affirmed.
4
Because there was no delegation error here, we need not
determine whether this unpreserved claim satisfies the plain error
standard articulated in United States v. Padilla, 415 F.3d 211 (1st
Cir. 2005)(en banc).
-6-