In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2691

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROY ALLEN SKIDMORE,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 99 CR 120--Larry J. McKinney, Chief Judge.

Argued November 30, 2000--Decided June 19, 2001

 Before Ripple, Manion, and Kanne, Circuit

Judges.

 Kanne, Circuit Judge. Special Agents of

the Bureau of Alcohol, Tobacco, and

Firearms (the "ATF") executed a search

warrant at the residence of Roy Allen

Skidmore in Daleville, Indiana. The

search of the residence yielded some

twenty-four firearms and 3800 rounds of

ammunition. Skidmore was indicted for

possession of firearms and ammunition as

a convicted felon in violation of 18

U.S.C. sec.sec. 922(g)(1) and 924(e). He

was tried and convicted by a jury of

violating 18 U.S.C. sec. 922(g)(1).

Because Skidmore had previously been

convicted of three unrelated violent

felonies, the district court sentenced

him pursuant to 18 U.S.C. sec. 924(e),

the Armed Career Criminal Act, to a term

of 262 months incarceration.

 Skidmore now appeals, challenging both

his conviction and his sentence. He

contests the validity of his conviction

on two separate grounds. First, Skidmore

argues that the district court denied him

a fair trial by allowing Theresa Wolfe to

testify as to certain statements made by

his wife, Yolanda Skidmore. Second,

Skidmore attacks the district court’s use

of the word "failure" in the jury

instructions to describe his decision not

to present witnesses or produce any other

evidence at his trial. With regard to his
sentence, Skidmore argues that in two

respects, his sentence of 262 months

violated his constitutional rights in

light of the Supreme Court’s decision in

Apprendi v. New Jersey, 530 U.S. 466, 120

S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

First, Skidmore contends that the

district court improperly sentenced him

pursuant to 18 U.S.C. sec. 924(e), when

the jury only found him guilty of

violating 18 U.S.C. sec. 922(g)(1).

Second, Skidmore asserts that the

district court’s application of the

United States Sentencing Guidelines

(U.S.S.G.) sections 4B1.4(b)(3)(A) and

(c)(2) to increase his sentence violated

his due process rights in light of

Apprendi. For the reasons stated below,

we uphold both Skidmore’s conviction and

his sentence.

Analysis 

A. Skidmore’s Challenges to His

Conviction 

1. The Admissibility of Statements

Made by Mrs. Skidmore

 Skidmore first challenges the validity

of his conviction by contending that the

district court abused its discretion and

denied him a fair trial by admitting

Theresa Wolfe’s testimony that Skidmore’s

wife made incriminating statements

regarding his status as a convicted

felon. Wolfe was employed as a secretary

at the Southside Gunshop ("gun shop"), a

federally licensed firearms dealer in

Muncie, Indiana. Wolfe met the Skidmores

at the gun shop and became friends with

them on a social level. At Skidmore’s

trial, Wolfe testified that the Skidmores

came into the gun shop together and

examined various firearms with the gun

shop’s owner, William Crowder. During

these visits, Crowder would hand

different firearms to Wolfe instructing

her to fill out a Form 4473/1 for each

firearm. Mrs. Skidmore would then

complete the portion of each of these

forms designated for purchaser

information, indicating that she was

purchasing the firearms. Wolfe indicated,

however, that she never saw Mrs. Skidmore

give Crowder any money. While filling out

one of these forms, Wolfe asked Mrs.

Skidmore why she was signing the form.

Wolfe testified that Mrs. Skidmore told

her that her husband could not sign for
the firearms because he had been in

prison. Skidmore’s counsel objected to

the admissibility of Wolfe’s testimony

regarding Mrs. Skidmore’s statements as

to why she was signing the forms. The

district court overruled this objection,

however, allowing these statements to be

admitted as a declaration of a coconspirator pursuant to Rule 801(d)(2)(E)

of the Federal Rules of Evidence./2 

 We review the district court’s decision

to admit Wolfe’s testimony pursuant to

Rule 801(d)(2)(E) for an abuse of

discretion. See United States v.

Maholias, 985 F.2d 869, 878 (7th Cir.

1993). "For coconspirator statements to

be admitted pursuant to Rule

801(d)(2)(E), the Government must prove

by a preponderance of the evidence that a

conspiracy existed, that both the

declarant and the defendant were members

of the conspiracy, and that the

statements were made in the course and in

furtherance of the conspiracy." United

States v. Ladd, 218 F.3d 701, 704 (7th

Cir. 2000). We review the district

court’s findings with regard to these

elements for clear error. See United

States v. Godinez, 110 F.3d 448, 454 (7th

Cir. 1997). While the Supreme Court has

not determined whether a hearsay

statement on its own and without other

independent evidence is enough to

establish the existence of a conspiracy

such that the statement may be properly

admitted under 801(d)(2)(E), the Court’s

decision in Bourjaily v. United States,

483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed.

2d 144 (1987), held that "a court, in

making a preliminary factual

determination under 801(d) (2)(E), may

examine the hearsay statements sought to

be admitted." Id. at 181. To satisfy the

"existing conspiracy" requirement, "[t]he

Government need not . . . charge a

conspiracy in order for a coconspirator

statement to be admitted." Godinez, 110

F.3d at 454. In examining what

constitutes a statement in "furtherance

of a conspiracy," we have explained that

a wide range of statements qualify,

"includ[ing] comments designed to assist

in recruiting potential members, to

inform other members about the progress

of the conspiracy, to control damage to

or detection of the conspiracy, to hide

the criminal objectives of the

conspiracy, or to instill confidence and

prevent the desertion of other members."
United States v. Johnson, 200 F.3d 529,

532 (7th Cir. 2000). 

 The government’s theory in this case was

that Mrs. Skidmore was a straw purchaser

for her husband, designating herself as

the purchaser and owner of firearms that

Skidmore wanted to acquire but could not

do so legally because he was a convicted

felon. Thus, the government contends that

Mrs. Skidmore’s statement to Wolfe about

her husband was made during the course of

and in furtherance of a conspiracy to

unlawfully obtain firearms for Skidmore.

The government established that Skidmore

and his wife visited the gun shop on

numerous occasions viewing firearms with

the store’s owner, William Crowder. If a

decision was made to purchase a firearm,

Crowder would hand the firearm to Wolfe,

with whom Mrs. Skidmore would then fill

out the required Form 4473 for that

particular firearm. Wolfe testified that

she never saw Mrs. Skidmore ever give

Crowder any money. These facts, taken

with Mrs. Skidmore’s explanation that she

was filling out the forms required for

the purchase of a firearm because her

husband had been in prison, validate the

government’s theory. Wolfe, a friend of

the Skidmores, was obviously curious

about the peculiar process by which the

Skidmores purchased firearms when she

asked Mrs. Skidmore why she was filling

out the mandatory forms. Mrs. Skidmore’s

decision to reveal to Wolfe the actual

reason she repeatedly designated herself

as the purchaser of these firearms can be

characterized as an expression of trust

as well as an attempt to secure the

confidence of her friend, thereby

preventing further detection of what she

and her husband were doing. It was not

clear error, therefore, for the district

court to find that this statement was

made in furtherance of the Skidmores’

conspiracy to acquire firearms for

Skidmore. Thus, we conclude that the

district court did not abuse its

discretion in admitting Wolfe’s testimony

of Mrs. Skidmore’s explanation as to why

she was designating herself as the

purchaser of multiple firearms pursuant

to Rule 801(d) (2)(E).

2. Jury Instructions

 Skidmore also asserts that his

conviction is invalid because of the

district court’s use of the word
"failure" in one of the instructions read

to the jury to describe his decision not

to present any witnesses or produce any

evidence. Skidmore contends that the

court’s instruction was an error that

prejudiced his entire trial. Because

Skidmore did not object to this

instruction until after the jury had

begun to deliberate, we review this claim

for plain error. See United States v.

Ray, 238 F.3d 828, 831 (7th Cir. 2001)

(stating that when a defendant does "not

object to the jury instruction in

question at trial, we review the district

court’s instructions for plain error").

Our plain error standard of review

permits us "’to correct only particularly

egregious errors for the purpose of

preventing a miscarriage of justice[,] .

. . which implies the conviction of one

who but for the error would have been acquitted.’"

United States v. Krankel, 164 F.3d 1046,

1052 (7th Cir. 1998) (quoting United

States v. Linwood, 142 F.3d 418, 422 (7th

Cir. 1998)). Additionally, when analyzing

a defendant’s challenge to a specific

jury instruction, "we must view the

instructions as a whole and consider the

challenged instruction both in the

context of the other instructions given

and in light of the allegations of the

complaint, the opening and closing

arguments, and the evidence of the

record." Resnover v. Pearson, 965 F.2d

1453, 1463 (7th Cir. 1992).

 The section of the instruction Skidmore

challenges stated that "[t]he jury will

always bear in mind that the law never

imposes on a defendant in a criminal case

the duty of calling any witnesses or

producing any evidence, and no adverse

inference may be drawn from his failure

to do so." It should first be noted that

this case does not implicate Skidmore’s

privilege against compulsory selfincrimination under the Fifth Amendment.

See United States v. Sblendorio, 830 F.2d

1382, 1391 (7th Cir. 1987) (noting that a

"defendant’s decisions about evidence

other than his own testimony do not

implicate the privilege"). Instead, what

is at issue here is the ever present

notion in our criminal justice system

that Skidmore was to be presumed innocent

of the charges against him until proven

guilty, and that he had no obligation

whatsoever to call any witnesses or

produce any evidence of his innocence at

his trial. We agree with Skidmore that
his decision not to present any witnesses

or evidence should not have been referred

to as a "failure" of any kind on his

part. The court’s use of this word in the

instruction is problematic because, as

Skidmore notes in his brief, it carries

with it the possible implication from the

court to the jury that Skidmore has

neglected a responsibility to present

testimony and other evidence. A conscious

decision by a defendant not to testify,

present other witnesses, or produce any

other evidence should not be

characterized in the instructions as

constituting a failure on the part of a

defendant. Ironically, the district court

used the word failure in explaining to

the jury that Skidmore had a right not to

present witnesses or any other evidence

and that it was not permitted to draw any

negative conclusions from his decision to

exercise this right. 

 While we take this opportunity to

emphasize that this language should not

be used in similar jury instructions in

the future,/3 we find that the district

court’s inclusion of the word failure in

this case does not constitute plain

error. The portion of the instruction

Skidmore challenges is a section of an

individual instruction that was one of

twenty-six instructions read to the jury.

Immediately before the court read the

challenged section to the jury, it

explained within the same instruction

that: 

 The defendant is presumed to be innocent

of the charge against him. This

presumption remains with the defendant

throughout the trial and during your

deliberations on the verdict, and is not

overcome unless from all the evidence in

the case you are convinced beyond a

reasonable doubt that the defendant is

guilty. 

 The government has the burden of proving

the guilt of the defendant beyond a

reasonable doubt, and this burden remains

on the Government throughout the case.

The defendant is not required to prove

his innocence or to produce any evidence.

Furthermore, immediately following the

challenged section, also within the same

instruction, the court properly

instructed the jury regarding Skidmore’s

right not to testify: "the defendant in a
criminal case has an absolute right not

to testify. The fact that the defendant

did not testify should not be considered

by you in any way in arriving at your

verdict." Although the court’s use of the

word failure was indeed a poor choice,

the context of the instruction in which

the word was used was one in which the

court was clearly indicating to the jury

that the government had the burden of

proving Skidmore’s guilt, and that he had

no obligation to prove his innocence.

Therefore, we find that this individual

instruction, read in its entirety, along

with the twenty-five other instructions

presented to the jury, was not so tainted

by the district court’s use of the word

failure that we can now conclude that

Skidmore might have been acquitted but

for the court’s inclusion of this word in

the jury instructions.

B. Skidmore’s Challenges to His Sentence

 Both of Skidmore’s challenges to his

sentence of 262 months incarceration are

based on the Supreme Court’s decision in

Apprendi v. New Jersey, 530 U.S. 466, 120

S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Because he did not raise these claims in

the district court, we review them for

plain error. See United States v.

Lamarre, 248 F.3d 642, 649 (7th Cir.

2001).

1. The Application of 18 U.S.C. sec.

924(e)

 Skidmore first challenges his sentence

by contending that he was

unconstitutionally sentenced as an armed

career criminal pursuant to 18 U.S.C.

sec. 924(e)(1). He argues that, although

the crime for which the jury convicted

him--being a felon in possession of

firearms in violation of sec. 922(g)(1)--

only carries a sentence of up to ten

years, he was improperly sentenced under

sec. 924(e)(1), the Armed Career Criminal

Act, which carries a maximum penalty of

life imprisonment, based on his having

been previously convicted of three

separate violent felonies. Skidmore

asserts that under Apprendi, whether he

had been convicted of three separate

violent felonies is a fact that should

have been presented to the grand jury,

tried before the jury, and found beyond a

reasonable doubt before he was sentenced

under sec. 924(e)(1). Because the jury
was not presented with the question of

whether Skidmore had been convicted of

these crimes, he argues that the district

court’s imposition of a sentence pursuant

to sec. 924(e)(1) was invalid. Thus, he

asks this Court to reverse and remand

with instructions to the district court

to re-sentence him to no more than 120

months.

 Section 922(g)(1) explains that it is

unlawful for any person:

who has been convicted in any court of, a

crime punishable by imprisonment for a

term exceeding one year; to ship or

transport in interstate or foreign

commerce, or possess in or affecting

commerce, any firearm or ammunition; or

to receive any firearm or ammunition

which has been shipped or transported in

interstate or foreign commerce. 

Skidmore is correct that ordinarily the

maximum sentence for a violation of sec.

922(g)(1) is ten years. See 18 U.S.C.

sec. 924(a)(2). However, a defendant that

is found to have violated sec. 922(g)

"and has three previous convictions by

any court referred to in section

922(g)(1) . . . for a violent felony or

a serious drug offense, or both,

committed on occasions different from one

another . . . shall be . . . imprisoned

not less than fifteen years." 18 U.S.C.

sec. 924(e)(1). Thus, in this case,

because Skidmore had been convicted of

three separate violent felonies,/4 as

defined by 18 U.S.C. sec. 924(e)

(2)(B),/5 the maximum sentence Skidmore

faced was life imprisonment. 

 In Almendarez-Torres v. United States,

523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed.

2d 350 (1998), a case decided before the

Court’s decision in Apprendi, the Court

concluded that recidivism used to enhance

a defendant’s maximum penalty is not an

element of a crime that must be charged

in an indictment and found beyond a

reasonable doubt but instead is a

sentencing factor. Id. at 239, 243-44.

Recognizing that this holding forecloses

his argument here, Skidmore argues that

Apprendi severely undermines the validity

of Almendarez-Torres. In Apprendi the

Court held that "[o]ther than the fact of

a prior conviction, any fact that

increases the penalty for a crime beyond

the prescribed statutory maximum must be
submitted to a jury, and proved beyond a

reasonable doubt." 530 U.S. at 466. While

the majority opinion in Apprendi noted

that "it is arguable that AlmendarezTorres was incorrectly decided, and that

a logical application of our reasoning

today should apply if the recidivist

issue were contested," 530 U.S. at 489

(footnote omitted), the Court

specifically carved out and maintained

the exception for "prior convictions"

explained in Almendarez-Torres. See id.

Thus, "Apprendi does not overrule the

holding of Almendarez-Torres . . . that

penalty enhancements based on recidivism

need not be established beyond a

reasonable doubt." United States v.

Brough, 243 F.3d 1078, 1081 (7th Cir.

2001). Because Skidmore’s three separate

violent felony convictions were the

reason he was subjected to the enhanced

statutory maximum provided by sec. 924(e)

for his violation of sec. 922(g)(1), we

conclude that his sentence of 262 months

was proper under Apprendi. See 18 U.S.C.

sec. 924(e)(1); see also United States v.

Thomas, 242 F.3d 1028, 1034 (11th Cir.

2001) (citation omitted) (finding no

Apprendi violation in imposition of 295

month sentence where jury found the

defendant guilty of violating sec. 922(g)

and defendant had three prior violent

felony convictions because "sec.

924(e)(1) authorizes a punishment of not

less than fifteen years (which means up

to life imprisonment) for violation of

sec. 922(g) where the defendant has

previously been convicted of three

violent felonies or serious drug

offenses"); United States v. Dorris, 236

F.3d 582, 586-88 (10th Cir. 2000)

(dismissing defendant’s claim that 210

month sentence violated Apprendi when

sentence was imposed pursuant to sec.

924(e) after jury convicted defendant of

violating sec. 922(g)(1) and defendant

had three prior violent felony

convictions); United States v. Mack, 229

F.3d 226, 235 n.12 (3d Cir. 2000) (noting

that Apprendi did not affect defendant’s

262 month sentence, imposed pursuant to

sec. 924(e), after a jury found defendant

guilty of violating sec. 922(g)(1)

because the statutory maximum for that

defendant, who had three prior violent

felony convictions, was life

imprisonment).

2. The District Court’s Calculation of Skidmore’s 

Sentence Under the Sentencing Guidelines
 Skidmore also challenges his sentence by

asserting that the district court’s use

of U.S.S.G. sections 4B1.4(b)(3)(A) and

(c)(2) to increase his sentence violated

his due process rights in light of

Apprendi. Skidmore was sentenced as an

armed career criminal pursuant to section

4B1.4 because his three prior violent

felony convictions rendered him "subject

to an enhanced sentence under the

provisions of 18 U.S.C. sec. 924(e)." U.S.

Sentencing Guidelines Manual sec. 4B1.4(a)

(1998). At Skidmore’s sentencing hearing,

the district court determined that

Skidmore had been in possession of a

silencer. Because this silencer was a

type of firearm described in 26 U.S.C.

sec. 5845(a)(7), U.S.S.G. sections

4B1.4(b)(3)(A) and (c)(2) required

Skidmore’s base level offense to be set

at 34 and his criminal history category

to be set at VI./6 This combination

resulted in a sentencing range of 262-327

months. The court proceeded to sentence

Skidmore to 262 months, the low end of

this range. 

 Skidmore argues that the increase in his

sentence provided for by sections

4B1.4(b)(3)(A) and (c)(2) is

unconstitutional under the Supreme

Court’s decisions in Apprendi and

Castillo v. United States, 530 U.S. 120,

120 S. Ct. 2090, 147 L. Ed. 2d 94

(2000)./7 According to Skidmore, these

guideline sections impermissibly

increased his sentence based on the

district court’s determination, by a

preponderance of the evidence, that he

possessed a specific type of firearm

described in 26 U.S.C. sec. 5845(a).

Skidmore contends that Apprendi and

Castillo mandate that whether he

possessed a silencer is a fact that

should have been presented to the jury

and found beyond a reasonable doubt. We

do not agree. 

 We certainly recognize, as other

circuits have observed, that "four

dissenting justices in Apprendi expressed

concern that the principle that they

understood underlies the majority’s

ruling threatened the validity of factfinding by a sentencing judge in applying

the Sentencing Guidelines." United States

v. Garcia, 240 F.3d 180, 183 (2d Cir.

2001). Indeed, "one member of the

Apprendi majority intimated in a footnote

that Apprendi’s reasoning might extend to
fact-finding for purposes of the

Sentencing Guidelines." Id. at 183-84. We

have concluded, however, along with every

other circuit to consider this issue,

that a district court may make various

factual determinations under the

guidelines, thereby affecting a

defendant’s sentence, so long as such

determinations do not cause the

defendant’s sentence to exceed the

prescribed statutory maximum for that

crime. See Talbott v. Indiana, 226 F.3d

866, 869 (7th Cir. 2000) ("Apprendi does

not affect application of the relevantconduct rules under the Sentencing

Guidelines to sentences that fall within

a statutory cap."); accord United States

v. Robinson, 241 F.3d 115, 119 (1st Cir.

2001); United States v. Garcia, 240 F.3d

at 184; United States v. Williams, 235

F.3d 858, 863 (3d Cir. 2000); United

States v. Obi, 239 F.3d 662, 667 (4th

Cir. 2001); United States v. Miranda, 248

F.3d 434, 444 (5th Cir. 2001); United

States v. Munoz, 233 F.3d 410, 414 (6th

Cir. 2000); United States v. AguayoDelgado, 220 F.3d 926, 934 (8th Cir.

2000); United States v. HernandezGuardado, 228 F.3d 1017, 1027 (9th Cir.

2000); United States v. Wilson, 244 F.3d

1208, 1215-16 (10th Cir. 2001); United

States v. Nealy, 232 F.3d 825, 829 (11th

Cir. 2000); In Re: Sealed Case, 246 F.3d

696, 699 (D.C. Cir. 2001). The statutory

maximum for Skidmore’s conviction was

life imprisonment. Because Skidmore’s

sentence was within this maximum, we

dismiss his claim that the district

court’s factual findings under the

sentencing guidelines improperly

increased his sentence under Apprendi. As

we explained in Talbott, "when the

statutory maximum is life imprisonment,

Apprendi is beside the point." Talbott,

226 F.3d at 869.

 

Conclusion

 For the reasons stated above, we AFFIRM

both Skidmore’s conviction and his

sentence.

FOOTNOTES

/1 This form must be completed for every firearm

sold at a federally licensed firearms dealer.

/2 "A statement is not hearsay if . . . (2) The

statement is offered against a party and is . .

. (E) a statement by a coconspirator of a party
during the course and in furtherance of the

conspiracy." Fed. R. Evid. 801(d)(2)(E).

/3 Although no Seventh Circuit Pattern jury instruction actually uses the word failure in the

context in which it is used in this case, the

genesis of the district court’s use of this

language could possibly be found in the title of

section 3.01 of the Pattern Criminal Federal Jury

Instructions for the Seventh Circuit, which is

unfortunately named "Failure of Defendant to

Testify." Pattern Crim. Fed. Jury Instr. for the

Seventh Circuit sec. 3.01.

/4 The Pre-Sentencing Report (the "PSR") prepared

for Skidmore’s sentencing hearing indicated that

Skidmore had been convicted of three felonies:

Second Degree Burglary and Stealing in Missouri,

Armed Robbery in Indiana, and Battery in Indiana.

Skidmore did not challenge the existence or

validity of these convictions. Thus, the PSR

satisfied the government’s burden under 18 U.S.C.

sec. 924(e)(1) to establish that Skidmore had

three prior violent felony convictions. See

United States v. Hudspeth, 42 F.3d 1015, 1019 n.6

(7th Cir. 1994).

/5 18 U.S.C. sec. 924(e)(2)(B) explains that

"violent felony" in this subsection:

means any crime punishable by imprisonment for a

term exceeding one year, or any act of juvenile

delinquency involving the use or carrying of a

firearm, knife, or destructive device that would

be punishable by imprisonment for such term if

committed by an adult, that-- 

(i) has as an element the use, attempted use, or

threatened use of physical force against the

person of another; or

(ii) is burglary, arson, or extortion, involves

use of explosives, or otherwise involves conduct

that presents a serious potential risk of physical injury to another.

/6 U.S.S.G. sec. 4B1.4 explains that:

(b) The offense level for an armed career criminal is the greatest of:

(1) the offense level applicable from Chapters

Two and Three; or

(2) the offense level from sec. 4B1.4 (Career

Offender) if applicable; or

(3)(A) 34, if the defendant used or possessed the

firearm or ammunition in connection with a crime

of violence or controlled substance offense, as
defined in sec. 4B1.2(a), or if the firearm

possessed by the defendant was of a type described in 26 U.S.C. sec. 5845(a); or 

(B) 33, otherwise.

(c) The criminal history category for an armed

career criminal is the greatest of:

(1) the criminal history category from Chapter

Four, Part A (Criminal History), or sec. 4B1.1

(Career Offender) if applicable; or

(2) Category VI, if the defendant used or possessed the firearm or ammunition in connection

with a crime of violence or controlled substance

offense, as defined in sec. 4B1.2(a), or if the

firearm possessed by the defendant was of a type

described in 26 U.S.C. sec. 5845(a); or

(3) Category IV.

/7 In Castillo, the Court evaluated 18 U.S.C. sec.

924(c)(1), which provides that "[w]hoever, during

and in relation to any crime of violence . . .

uses or carries a firearm, shall, in addition to

the punishment provided for such crime . . . be

sentenced to imprisonment for five years." Section 924(c)(1) proceeds to specifically provide,

however, that "if the firearm is a machinegun" a

defendant will be sentenced to a mandatory sentence of thirty years imprisonment. The Court

found that in this situation, "Congress intended

the firearm type-related words it used in sec.

924(c)(1) to refer to an element of a separate,

aggravated crime." Castillo, 530 U.S. at 131.

Thus, whether a defendant used or carried a

"machinegun" was a question of fact for the jury.