United States v. Alborola-Rodriguez , 153 F.3d 1269 ( 1998 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-5533
D. C. Docket No. 94-413-CR-FAM FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
09/04/98
UNITED STATES OF AMERICA, THOMAS K. KAHN
CLERK
Plaintiff-Appellee,
versus
JORGE ALBOROLA-RODRIGUEZ, a.k.a. Jorge A.
Alborola-Rodriguez; MAURICO BAUTISTA a.k.a.
Humberto Gutierrez,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Florida
(September 4, 1998)
Before TJOFLAT and DUBINA, Circuit Judges, and SMITH*, Senior
Circuit Judge.
DUBINA, Circuit Judge:
__________________________
*Honorable Edward S. Smith, Senior U.S. Circuit Judge for the
Federal Circuit, sitting by designation.
I.
Appellants Maurico Bautista (“Bautista”) and Jorge Alborola-
Rodriguez (“Alborola”) appeal their convictions for violating 18
U.S.C. § 924(a)(1), and Alborola appeals his sentence imposed by
the United States District Court for the Southern District of
Florida. As stated in their briefs, the defendants present the
following issues for appellate review:
(A) Bautista
(1) Whether the district court improperly failed to dismiss
the indictment on grounds of outrageous governmental conduct.
(2) Whether the district court improperly instructed the
jury that it could return inconsistent verdicts and convict
Bautista of unlawfully using a firearm during the commission of a
drug trafficking crime even if it did not convict him of
committing the drug trafficking crime.
(B) Alborola
(1) Whether the jury verdict may stand where Alborola was
found not guilty of a substantive drug trafficking offense and
where the district court instructed the jury that it could find
Alborola guilty of a § 924(c)(1) offense even if it found him not
guilty of a drug trafficking offense.
(2) Whether the evidence at trial was sufficient to support
Alborola’s conviction.
(3) Whether the ten-year statutory sentence imposed in
Alborola’s case was erroneous.
In addition, we consider sua sponte whether we must vacate
the portion of Alborola’s sentence that ordered deportation as a
condition of supervised release.
After carefully reviewing the record in this case, as well
as reading the parties’ briefs and having the benefit of oral
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argument, we summarily affirm Bautista and Alborola’s
convictions.1 We also affirm Alborola’s sentence, except for the
district court’s imposition of deportation as a condition of
supervised release under 18 U.S.C. § 3583(d).
II.
Alborola requests that this court vacate his ten year
enhanced statutory sentence for using or carrying a short-
barreled shotgun during and in relation to a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1). The applicable
statutory penalty under § 924(c)(1) depends in part upon the type
of weapon the defendant used or carried. The baseline penalty
for an ordinary “firearm” is five years imprisonment, but “if the
firearm is a short-barreled rifle, short-barreled shotgun, or
semiautomatic assault weapon,” the punishment is “imprisonment
for ten years.” 18 U.S.C. § 924(c)(1). If the firearm is a
“machinegun, or a destructive device, or is equipped with a
firearm silencer or firearm muffler,” the penalty is 30 years in
prison. Id.Alborola contends that three firearms were at issue in his
trial: a pistol, a short-barreled shotgun, and an M-1 rifle. He
further contends that because the jury rendered only a general
guilty verdict without specifying which weapon or weapons they
unanimously found him to have used or carried, he should have
received only a five-year sentence. Alborola cites persuasive
1
See 11th Cir. R. 36-1.
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authority for the proposition that, where the jury verdict does
not establish beyond a reasonable doubt that the defendant used
or carried a firearm that subjects him to a term greater than
five years under 18 U.S.C. § 924(c)(1), the enhanced sentence may
not be affirmed. See United States v. Melvin, 27 F.3d 710 (1st
Cir. 1994). Alborola’s argument necessarily implies his belief
that firearm type is an element of 18 U.S.C. § 924(c)(1).
The government responds that the type of firearm is not an
element of 18 U.S.C. § 924(c)(1), and therefore, it was not a
question for the jury, but rather a question for the sentencing
court. In any event, the government argues that trial evidence
established that Alborola handled a short-barreled shotgun.
III.
Because Alborola’s argument presents a question of statutory
interpretation of 18 U.S.C. § 924(c)(1), this court applies de
novo review. See United States v. McArthur, 108 F.3d 1350, 1353
(11th Cir. 1997). However, Alborola did not argue at trial that
firearm type is an element of the offense requiring specific jury
findings, nor did he argue at sentencing that the lack of
specific jury findings rendered a ten year enhanced sentence
inapplicable.2 Therefore, we review Alborola’s contention for
plain error. See Fed.R.Crim.P. 52(b); McArthur, 108 F.3d at 1353
n.3. Because the first step in plain error analysis is
determining whether error occurred, see Johnson v. United States,
2
In fact, at Alborola’s urging, the district court excluded evidence on firearm type
as being irrelevant at trial and pertinent only to sentencing. (R10:101-103).
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520 U.S. 461, ___, 117 S.Ct. 1544, 1549 (1997), we must interpret
§ 924(c)(1) and determine whether specific jury findings are
required before a defendant may be sentenced to an enhanced term
for carrying or using certain firearms. This is a question of
first impression in this circuit.
IV.
As stated previously, Alborola relies upon the First Circuit
decision of United States v. Melvin, 27 F.3d 710 (1st Cir. 1994).
In fact, Melvin does not adequately support Alborola’s position.
In Melvin, unlike the present case, the government conceded that
§ 924(c)(1)’s enhanced penalty provisions required specific jury
findings on firearm type. Id. at 714. Because the issue was
undisputed, the First Circuit expressly declined to reach the
issue of whether firearm type is an element of § 924(c)(1). Id.
at 715 n.9. The actual holding of Melvin is merely that reversal
of an unenhanced five-year § 924(c) sentence is not required
where the jury’s verdict did not unambiguously establish the
involvement of a machine gun, one of many firearms charged in the
count of conviction. Id.; see also See United States v. Branch,
91 F.3d 699, 740 (5th Cir. 1996) (discussing the limited holding
of Melvin), cert. denied, 117 S.Ct. 1466 (1997).
Although the First Circuit in Melvin assumed that firearm
type is an element of § 924(c)(1), other circuits are divided on
this issue. According to the Fifth Circuit, firearm type is only
a factor to be determined at sentencing by a preponderance of the
evidence. See Branch, 91 F.3d at 737-41. In Branch, the
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defendants were indicted and convicted only of using or carrying
“firearms,” but four defendants received enhanced 30-year
sentences for using machine guns. Id. at 710-11, 738. They
argued that because the indictment and jury verdict only
indicated that they were guilty of carrying “firearms,” they
should have received five- year sentences. Id. at 738. Relying
on the structure of § 924(c)(1) and its legislative history, the
Fifth Circuit held that “[t]he Government need not charge in the
indictment nor must the jury find as part of its verdict the
particular type of firearm used or carried by the defendant.”
Id. at 740.
In a case decided shortly after Branch, the Ninth Circuit
held that “where the government seeks more than the minimum five
year consecutive sentence” under § 924(c)(1), the type of firearm
“must be found by the jury; that is to say, it is an element of
the crime.” United States v. Alerta, 96 F.3d 1230, 1235 (9th
Cir. 1996). The Sixth Circuit reached a similar conclusion in
United States v. Sims, 975 F.2d 1225, 1235-36 (6th Cir. 1992).
After reviewing each of the precedents from our sister
circuits relative to this issue, we conclude that the Fifth
Circuit’s Branch decision as reaffirmed in United States v.
Gonzales, 121 F.3d 928, 941 (5th Cir. 1997), cert. denied, 118
S.Ct. 726, (1998) has the better side of the argument.
In conclusion, we hold that the type of firearm involved in
a § 924(c) offense is not an element of the offense and is thus
not a question for the jury; instead, it is a sentencing question
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to be resolved by the sentencing court by a preponderance of the
evidence.
V.
We also note from the record that the district court ordered
Alborola judicially deported as a condition of supervised release
under 18 U.S.C. § 3583(d). Alborola did not object to this order
at sentencing, and neither he nor the government mentions the
issue in their briefs. Nonetheless, this court must sua sponte
address the district court’s subject matter jurisdiction if it
appears lacking. See Rickard v. Auto Publisher, Inc., 735 F.2d
450, 453 n.1 (11th Cir. 1984).
In United States v. Romeo 122 F.3d 941, 943-44 (11th Cir.
1997), we held that 8 U.S.C. § 1229a(a), enacted by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRAIRA”), deprives district courts of jurisdiction to order
deportation as a condition of supervised release under 18 U.S.C.
§ 3583(d). As a jurisdiction ousting statute, 8 U.S.C. §
1229a(a) applies to all appeals pending on April 1, 1997, the
effective date of the IIRAIRA. See Romeo, 122 F.3d at 944.
Because the district court lacked authority to order Alborola
deported under 18 U.S.C. § 3583(d), we must vacate the portion of
the district court’s judgment ordering deportation and remand for
further proceedings consistent with Romeo. On remand, the
district court may either delete the deportation condition or
modify it by deleting the judicial order of deportation, but
providing that Alborola, at the appropriate time, shall be turned
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over to the Immigration and Naturalization Service for
deportation proceedings pursuant to the IIRAIRA. Because either
course of action on remand will operate in Alborola’s favor,
there is no need for a new sentencing hearing on this issue. In
the alternative, the district court may, in its discretion, hold
a new sentencing hearing, if the court desires to make other
changes in the sentence.
AFFIRMED in part, VACATED in part, and REMANDED.
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