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
At all times pertinent here, 18 U.S.C. § 924(c)(1)(B)(i) 1

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weapons" cited below were repealed effective September 13, 2004.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).

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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). Defendant pled 1

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
In a post-briefing motion to remand, defendant argued that 2

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 (1 Cir. 2005). st

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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 (1 Cir. 2005). st

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
"Semiautomatic assault weapon" is defined to include "a 3

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). 

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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.
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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
Because there was no delegation error here, we need not 4

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).

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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. Rather, the district court itself required that 4

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.