Cite as U.S. v. LaCedra, No. 97-1286 (1st Cir. 1997)

                      [Not for Publication]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 appeals his jury
convictions for possession of an unlawfully made destructive device
under 26 U.S.C. section 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.
section 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),
[footnote 1] which were based on evidence that 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 issue also disposes of defendant's argument that
he did not knowingly create a substantial risk of death or serious
bodily injury to another for purposes of U.S.S.G. section
2K1.4(a)(1)(A).

     Proceeding to defendant's constitutional issues, we summarily
note that 26 U.S.C. sections 5861(c) and 5861(d) do not violate the
Fifth Amendment.  The Supreme Court has explicitly held that
section 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 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.

                            FOOTNOTES

1. The PSR determined defendant's preadjustments offense level
through two separate routes.  It first applied U.S.S.G. section
2K1.4, covering arson and property damage by use of explosives, to
recommend a base offense level of 24 under section 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.
section 2K1.4(c) to cross reference 2K1.4(a)(1)(A) with U.S.S.G.
section 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. section 2K2.1, covering the unlawful
possession of firearms, to arrive at a base level of 18, which it
then augmented six levels pursuant to sections 2K2.1(b)(3) and
(b)(5), and similarly cross-referenced under section 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. section 3C1.1.