In the

United States Court of Appeals

For the Seventh Circuit

No. 99-4223

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARCELO SANDOVAL,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 99-CR-40019--Joe B. McDade, Chief Judge.

Argued January 24, 2001--Decided February 20, 2001

 Before FLAUM, Chief Judge, and EVANS and WILLIAMS,

Circuit Judges.

 EVANS, Circuit Judge. A fresh question raised in

this case is whether the classification of a

firearm as a "semiautomatic assault weapon" under

18 U.S.C. sec. 924(c)(1)(B)(i), is a sentencing

factor or an element of the offense (of using and

carrying a firearm in connection with a crime of

violence or drug trafficking). If it’s an

element, it must be submitted to a jury and

proven beyond a reasonable doubt. We hold that it

is a sentencing factor.

 Marcelo Sandoval, a Chicagoan alleged to be a

drug supplier for an Iowa gang called the Quad

Cities Bishops, was indicted and convicted after

a jury trial on three counts: kidnapping in

violation of 18 U.S.C. sec. 1201(a)(1); using and

carrying a firearm--during a kidnapping--in

violation of sec. 924(c); and conspiracy to

possess marijuana, cocaine, and methamphetamine

with intent to distribute in violation of 21

U.S.C. sec. 846. He was sentenced to 20-year

concurrent terms on the kidnapping and drug

charges and 10 years consecutive on the sec.

924(c) count.

 A lengthy excursion into the facts of this case

is not required, but here is a short synopsis:

Sandoval thought a fellow named Rivas double-
crossed him on a drug deal by misdirecting a

shipment of pot from Mexico to Iowa rather than

Chicago. Sandoval, a relative (either a cousin or

a nephew; the record refers to both), Hector

Sandoval, and a few others kidnapped Rivas in

Iowa, drove him at gunpoint to Chicago, and held

him several days as collateral until their

marijuana was returned. Several guns were

employed by the kidnappers, including an AP-9, 9

millimeter Luger commonly known as a "Tech 9," a

semiautomatic weapon which was held by Hector.

The kidnapping was foiled by police, tipped off

by Rivas’ wife, who broke into the house where

the party was going on.

 The success of this appeal rests on a broad

reading of Apprendi v. New Jersey, ___ U.S. ___,

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

held that any fact, other than a prior

conviction, that increases the penalty for a

crime beyond the prescribed statutory maximum,

must be submitted to a jury and proved beyond a

reasonable doubt. See id. at 2362-63. But

Apprendi did not overrule McMillan v.

Pennsylvania, 477 U.S. 79 (1986), which upheld a

keystone state statute requiring the imposition

of a mandatory minimum sentence based on a

finding by the judge, not a jury, that the

defendant possessed a firearm during the

commission of his offense of conviction. Rather,

Apprendi limited McMillan’s holding "to cases

that do not involve the imposition of a sentence

more severe than the statutory maximum for the

offense established by the jury’s verdict . . .

." Apprendi, 120 S. Ct. at 2361 n.13. Relying on

McMillan, Apprendi is inapplicable here because

convictions under sec. 924(c)(1)(A) carry a

statutory maximum sentence of life imprisonment,

regardless of what subsection the defendant is

sentenced under. So the classification of the

firearm--here as a semiautomatic assault weapon--

did not increase the maximum possible penalty;

rather, it raised the mandatory minimum penalty

from 5 to 10 years.

 Sandoval relies on Castillo v. United States,

___ U.S. ___, 120 S. Ct. 2090 (2000), for the

proposition that the statutory reference to

firearm types in 18 U.S.C. sec. 924(c)(1)(B)

creates separate substantive offenses, not

sentencing factors. Castillo,/1 however, is

distinguishable. There, the Court examined an

earlier version of sec. 924(c)(1), which provided

in relevant part:

(c)(1) Whoever, during and in relation to any

crime of violence . . . ,

uses or carries a firearm, shall, in addition to

the punishment provided for such crime of
violence . . . , be sentenced to imprisonment for

five years, and if the firearm is a shortbarreled rifle [or a] short-barreled shotgun to

imprisonment for ten years, and if the firearm is

a machine gun . . . to imprisonment for thirty

years.

18 U.S.C. sec. 924(c)(1) (1988 ed., supp. V).

Castillo holds that this earlier version of sec.

924(c)(1) created separate criminal offenses

based on the type of firearm used. But in

reaching this conclusion the Court emphasized

that the statute’s structure placed the elements

of the crime in a single sentence followed by

subsections referring directly to sentencing

issues. Castillo, 120 S. Ct. at 2093 ("Congress

placed the element ’uses or carries a firearm’

and the word ’machine gun’ in a single sentence,

not broken up with dashes or separated into

subsections."). Accordingly, this structure

signaled that "the basic job of the entire first

sentence is the definition of crimes . . . ."

Castillo, 120 S. Ct. at 2093.

 The sentence structure of the present

incarnation of sec. 924(c)(1)--the version at

issue here--is different. And that was recognized

in Castillo: "[I]n 1998 Congress reenacted sec.

924(c)(1), separating different parts of the

first sentence (and others) into different

subsections." 120 S. Ct. at 2093. Now, the first

clause of sec. 924(c)(1), standing alone, defines

the offense of using or carrying a firearm during

a crime of violence, while subsections (A) and

(B) single out subsets of those persons [those

who carry or use firearms during crimes of

violence or drug trafficking] for more severe

punishment. In addition, the subsections under

(A) and (B) are separated from the offense clause

of the statute by the word "shall"--a clear

indication that what follows are sentencing

provisions. See Jones v. United States, 526 U.S.

227, 234 (1999); Castillo, 120 S. Ct. at 2093.

Other circuits have concluded that these

structural distinctions weigh in favor of

treating new sec. 924(c)(1) as defining a single

crime with a choice of sentencing penalties based

on the presence or absence of various facts,

rather than as a statute that defines multiple

separate criminal offenses. See United States v.

Pounds, 230 F.3d 1317 (11th Cir. 2000) (holding

that sec. 924(c)(1)(A)(iii) is a penalty

provision with stiffer sentencing implications

when a firearm is discharged); United States v.

Carlson, 217 F.3d 986 (8th Cir. 2000), petition

for cert. filed, Nov. 16, 2000 (holding that sec.

924(c)(1)(A)(i) is a penalty provision with

sentencing implications when a firearm is

brandished). Agreeing with this authority, we

hold that the classification of the weapon used
in a sec. 924(c) prosecution is a sentencing

factor.

 The two other issues in this appeal require

little comment. During the trial, one of the

jurors gave a letter to the judge indicating

that, after seeing a witness the previous day,

she realized she knew him, apparently having

served as his tutor in the Moline (Illinois)

school district. This prompted the judge to call

the matter to the attention of the attorneys, and

Sandoval’s lawyer, during an in-chambers

conference, said he didn’t want the juror to

remain on the panel and that he "would have

exercised a peremptory" on her if he had known

about her familiarity with the witness when the

jury was selected. Removing the questioned juror

and replacing her with an alternate, on this

record, is far from an abuse of discretion, the

standard by which the judge’s actions are

reviewed. See United States v. Zizzo, 120 F.3d

1338, 1349 (7th Cir. 1997).

 Similarly, Sandoval’s challenge to the

sufficiency of the evidence supporting the

kidnapping conviction is a nonstarter. His

challenge is essentially an attack on the

credibility of various witnesses to Rivas’

abduction and confinement. But that testimony

supported a finding that Rivas was moved across

state lines at gunpoint and repeatedly told he

would be killed unless he coughed up the

marijuana. Having reviewed this evidence, we have

no hesitation about concluding that, if believed,

as it obviously was, it was sufficient to support

the jury’s verdict.

AFFIRMED.

/1 Although decided in 2000, Castillo was an old

case (governed by old law) involving the Branch

Davidian religious sect and its violent 1993

confrontation with federal agents in Waco, Texas.