United States v. Clinton Thompson, III , 728 F.3d 1011 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50381
Plaintiff-Appellee,
D.C. No.
v. 2:10-cr-00304-
JFW-1
CLINTON ELWYN THOMPSON, III,
AKA Darion Jones, AKA Calvin
Leon Thompson, AKA Clinton
Edwin Thompson, AKA Clinton
Elway Thompson, AKA Clinton
Elwin Thompson, III,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 10-50479
Plaintiff-Appellee,
D.C. No.
v. 2:10-cr-00304-
JFW-2
TAVRION DAWSON,
Defendant-Appellant.
2 UNITED STATES V. THOMPSON
UNITED STATES OF AMERICA, No. 11-50081
Plaintiff-Appellee,
D.C. No.
v. 2:10-cr-00304-
JFW-3
SAMUEL ANTHONY EATON, AKA
Samuel Eaton,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
April 8, 2013—Pasadena, California
Filed August 29, 2013
Before: Stephen Reinhardt and Mary H. Murguia, Circuit
Judges, and Donald W. Molloy, District Judge.*
Opinion by Judge Reinhardt;
Dissent by Judge Murguia
*
The Honorable Donald W. Molloy, District Judge for the U.S. District
Court for the District of Montana, sitting by designation.
UNITED STATES V. THOMPSON 3
SUMMARY**
Criminal Law
The panel reversed convictions under 18 U.S.C.
§ 844(h)(1) and the corresponding conspiracy counts under
§ 844(m), vacated the sentences on remaining counts of bank
larceny, and remanded to the district court for resentencing in
a case in which the defendants used a thermal lance – a tool
designed to cut through metal using extreme heat – to cut
open the back of an ATM in order to steal the money it
contained.
The panel held that the penalty enhancement for “us[ing]
fire” to commit a felony under § 844(h)(1) does not apply to
the use of a thermal lance tool.
Dissenting, Judge Murguia wrote that the majority’s
holding is counter to the ordinary and common definition of
fire.
COUNSEL
Mark Yanis (argued), Huntington Beach, California, for
Defendant-Appellant Clinton Thompson, III.
Gretchen Fusilier (argued), Carlsbad, California, for
Defendant-Appellant Tavrion Dawson.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 UNITED STATES V. THOMPSON
Sean K. Kennedy, Federal Public Defender; Samuel A.
Josephs (argued), Deputy Federal Public Defender, Federal
Public Defenders’ Office, Los Angeles, California, for
Defendant-Appellant Samuel Eaton.
André Birotte Jr., United States Attorney; Robert E. Dugdale,
Assistant United States Attorney, Chief, Criminal Division;
Justin R. Rhodes (argued) and Lana Morton-Owens, Assistant
United States Attorneys, Violent & Organized Crimes
Section, United States Attorney’s Office, Los Angeles,
California, for Plaintiff-Appellee.
OPINION
REINHARDT, Circuit Judge:
This case involves a penalty enhancement statute,
18 U.S.C. § 844(h)(1), which imposes a mandatory ten-year
consecutive sentence (in addition to the sentence for the
underlying felony) on anyone who “uses fire . . . to commit
any felony.” The enhancement is increased to twenty
mandatory consecutive years for a second offense.1 § 844(h).
Defendants Clinton Thompson, Tavrion Dawson, and Samuel
Eaton were convicted of bank larceny, and their sentences
were enhanced because they were convicted of using a
thermal lance—a tool designed to cut through metal using
extreme heat. The defendants used the tool to cut open the
back of an ATM in order to steal the money it contained. We
must now decide whether the penalty enhancement for
“us[ing] fire” to commit a felony under 18 U.S.C. § 844(h)(1)
1
Defendant Samuel Eaton was convicted of two separate incidents and,
as a result, received a thirty-year enhancement.
UNITED STATES V. THOMPSON 5
is applicable to the use of a thermal lance tool. We conclude
that it is not. As a result, we reverse defendants’ convictions
under § 844(h)(1) and the corresponding conspiracy counts
under § 844(m); we vacate the sentences on the remaining
counts of bank larceny; and we remand to the district court
for resentencing on the remaining counts of bank larceny.2
FACTS
Samuel Eaton masterminded a plan to rob the Los
Angeles Federal Credit Union ATM in El Monte, California,
using a thermal lance to cut open the back of the ATM. He
enlisted the help of Christopher Williams,3 Clinton
Thompson, III, and Tavrion Dawson. On the evening of
January 28, 2008,4 Eaton dropped Williams off at the Los
Angeles Federal Credit Union, where Williams broke into the
ATM room through an adjacent abandoned store, using a
crowbar to smash a hole through the drywall. Once inside, he
triggered the alarm and disabled the camera. Williams then
2
Thompson and Dawson raise additional arguments on appeal that relate
to the bank larceny counts. We reject these arguments in a memorandum
disposition filed concurrently with this opinion. Because Eaton does not
challenge his convictions for bank larceny, we do not address them. Thus,
all of the bank larceny convictions stand, and we remand to the district
court for resentencing on the bank larceny counts alone.
3
Williams agreed to testify against his co-conspirators as a condition of
his plea agreement.
4
About a week later, on February 5, 2008, Eaton and Williams
committed another bank larceny using the thermal lance at a Bank of
America ATM in Duarte, California. Thompson and Dawson were not
charged with the second bank larceny, but otherwise the facts were
analogous. Because the facts of the second bank larceny are analogous,
we do not mention them here.
6 UNITED STATES V. THOMPSON
met Eaton at his car, where they waited to see if the police
would respond. The bank manager and police arrived at the
scene, but, seeing no signs of criminal activity from the
outside, they left. Eaton and Williams then met Thompson
and Dawson at a nearby Denny’s Restaurant to hand off the
tools—Thompson brought the thermal lance and Dawson
brought a hammer.5
After several hours had passed, Eaton and Williams went
back to the Los Angeles Federal Credit Union and reentered
the ATM room with the thermal lance. Eaton and Williams
assembled the thermal lance and Eaton operated it to cut open
the ATM by melting through the metal vault. At the same
time, Williams sprayed water from a five-gallon water
cannister into the ATM to prevent the money inside from
catching fire. Once the ATM was open, the two men
gathered the money into a black duffel bag and left the bank.
They stole approximately $79,000.
The tool that Eaton and Williams used to cut open the
ATM—a thermal lance—is a cutting tool designed to cut,
pierce, and gouge metal. The component parts are a “pistol
grip” (similar to the nozzle on a garden hose), a “cutting
rod,” an oxygen tank, a battery, and a striker plate. The pistol
grip operates the thermal lance tool by regulating the flow of
pressurized oxygen from the tank through the cutting rod,
which is a hollow steel alloy pipe containing several wire
rods of magnesium or aluminum metal. One end of the pistol
grip connects to the cutting rod. The other end of the pistol
5
Thompson and Dawson were not with Eaton at the time of the crime.
As a result, Thompson and Dawson were charged and convicted under
conspiracy and aiding and abetting theories of liability for their
involvement.
UNITED STATES V. THOMPSON 7
grip connects to the oxygen tank and, separately, to one side
of a 12-volt battery, similar to a car battery. The other side of
the battery connects to a metal striker plate.
Once everything is assembled, the operator “lightly
squeeze[s] the oxygen control lever” on the pistol grip to start
the flow of oxygen and “slowly pull[s] the rod across the
striker plate” to create a spark. This spark ignites the oxygen,
causing the tip of the cutting rod to change state from a solid
to a liquid form, and in the process the lance can be used to
cut various metals by touching the cutting rod to the metal
surface. The thermal lance emits other sparks, or a
“flickering flame” as it operates. It cuts the metal by melting
through it with the extreme heat—up to 10,000 degrees
Fahrenheit—created at the tip of the lance. To stop cutting,
the operator need only release the oxygen lever of the pistol
grip, ceasing the flow of pressurized oxygen. Releasing the
pistol grip also stops the sparks or “flickering flame.”
The most common uses of the tool, as established by the
instructional video shown to the jury, are on construction sites
to cut or pierce metal. Notably, the thermal lance can be used
to cut metal underwater. Although it emits a byproduct of
sparks and a “flickering flame” as it operates, the extreme
heat expelled by the pressurized oxygen actually cuts through
the metal. The sparks and “flickering flame” are only
incidental to the purpose of the tool, which is to melt through
metal using extreme heat. The risk of fire that accompanies
the use of the thermal lance is that the sparks or “flickering
flame” given off by the extreme heat generated at the tip of
the cutting rod may accidentally catch something nearby on
fire. As the manual notes: “[s]parks, splatter and molten
material generated by [using the thermal lance] can cause
fire.”
8 UNITED STATES V. THOMPSON
Eaton and Williams took steps that successfully avoided
any risk of a fire. Williams continuously sprayed the ATM
with water from a five-gallon water cannister while Eaton
was operating the thermal lance. Their use of the thermal
lance, nonetheless, left traces of the extreme heat used. The
photographs and testimony revealed a few burned bills from
the ATM, “tile on the ground [that] was burned,” “walls [that]
were a little bit shaded” with soot, and a smell of smoke in
the room, described by one investigating officer as an
“industrial burning type smell, like plastic, or steel.”
The efforts Eaton and Williams took to avoid fire were
also apparent from the evidence. The testimony and photos
revealed that the floor surrounding the ATM vault was
covered in water. Detective Black testified that there were
“water rings that were still moist on the floor immediately
next to the safe.” Eaton concentrated his use of the thermal
lance on the ATM vault, and, as a result, it did not cause any
structural damage to the buildings. No fire alarms went off,
and the fire department was never called.
PROCEDURAL BACKGROUND
This appeal involves three defendants: Thompson,
Dawson, and Eaton. Thompson and Dawson were charged
and tried jointly for their involvement as aiders and abettors
as well as conspirators in the events surrounding the bank
larceny at the Los Angeles Federal Credit Union on January
28, 2008. Eaton was tried separately. He faced additional
counts for committing a bank larceny at the Bank of America
on February 5, 2008. Before trial, each of the defendants
sought to have the “uses fire” charges dismissed because,
they argued, as a matter of statutory interpretation,
§ 844(h)(1) does not apply to the use of a thermal lance tool.
UNITED STATES V. THOMPSON 9
The district court denied the motions, explaining that the
statutory language is “clear and unambiguous.” Defendants
renewed their motions to dismiss as motions for acquittal,
which the district court again denied. After jury trials,
defendants were convicted on all counts. At sentencing, the
court applied the “uses fire” penalty enhancement, 18 U.S.C.
§ 844(h)(1), to the defendants’ sentences. Defendants timely
appeal. We have jurisdiction under 28 U.S.C. § 1291.
DISCUSSION
This appeal raises a question of statutory interpretation
that we review de novo.6 United States v. Youssef, 547 F.3d
1090, 1093 (9th Cir. 2008) (citation omitted). We must
interpret the penalty enhancement under § 844(h)(1) and
6
Before trial, each of defendants sought to have the “uses fire” charges
dismissed as a matter of statutory interpretation on the ground that
§ 844(h)(1) does not apply to the use of a thermal lance tool. The district
court denied the motions, rejecting defendants’ statutory interpretation
argument as a matter of law, but permitting defendants to move for
acquittal at the close of evidence. Defendants moved for acquittal, which
the district court again denied. Thus, although the government attempts
to characterize defendants’ appeal as one challenging the sufficiency of
the evidence, the question raised is clearly one of statutory interpretation
that we review de novo. United States v. Graham, 691 F.3d 153, 156 n.3
(2d Cir. 2012), vacated on other grounds, 133 S. Ct. 2851 (June 24, 2013)
(No. 12-7274) (deciding a question of statutory interpretation of
§ 844(h)(1) and, thus, “not address[ing the argument] . . . that the
evidence presented at trial was insufficient to convict”); see also United
States v. Wright, 625 F.3d 583, 590 (9th Cir. 2010) (reviewing “de novo”
a “challenge to the sufficiency of the evidence, including questions of
statutory interpretation”) (internal citations omitted).
10 UNITED STATES V. THOMPSON
determine whether the statutory language “uses fire” includes
defendants’ use of the thermal lance tool.7
Because “uses fire” is not otherwise defined in the statute,
we first ask whether the “ordinary, contemporary, [and]
common meaning” of the language answers the question
before us—that is, whether it includes defendants’ use of a
thermal lance. See United States v. Maciel-Alcala, 612 F.3d
1092, 1096 (9th Cir. 2010). If the language is ambiguous or
is capable of more than one reasonable interpretation, we
“consult the legislative history, to the extent that it is of value,
to aid in our interpretation.” Merkel v. Comm’r of Internal
Revenue, 192 F.3d 844, 848 (9th Cir. 1999). The statute’s
“purpose” also guides our analysis. See Jonah R. v.
Carmona, 446 F.3d 1000, 1005, 1010–11 (9th Cir. 2006).
These canons of construction “are not mandatory rules” but
rather guides “designed to help judges determine the
Legislature’s intent as embodied in particular statutory
language,” and “other circumstances evidencing
congressional intent can overcome their force.” Chickasaw
Nation v. United States, 534 U.S. 84, 94 (2001). The Second
7
18 U.S.C. § 844(h) provides:
Whoever—
(1) uses fire or an explosive to commit any felony
which may be prosecuted in a court of the United
States, . . .
in addition to the punishment provided for such felony,
[such person shall] be sentenced to imprisonment for 10
years [to run consecutively]. In the case of a second or
subsequent conviction under this subsection, such
person shall be sentenced to imprisonment for 20 years
[to run consecutively].
UNITED STATES V. THOMPSON 11
Circuit has interpreted a closely associated word in the same
statute, and we reach the same result applying a similar
analysis. United States v. Graham, 691 F.3d 153, 156 (2d
Cir. 2012), vacated on other grounds, 133 S. Ct. 2851 (June
24, 2013) ( No. 12-7274).
I.
The “ordinary, contemporary, [and] common meaning” of
“uses fire” does not include using a tool like the thermal lance
because we ordinarily understand “fire” to refer to flames
that burn in a sustained manner. Maciel-Alcala, 612 F.3d at
1096.
First, the common meaning of “uses fire” does not include
burning by heat. It is common sense that heat can cause
burning-type damage, without any actual fire being involved.
For example, a hot iron left on a shirt for too long will leave
the shirt badly burned. That the up to 10,000 degrees
Fahrenheit heat generated by the thermal lance tool results in
burning-type damage does not suggest that fire, rather than
extreme heat, caused this damage.8 The thermal lance
instructional manual makes clear that the thermal lance uses
heat and not fire to cut through the metal.9 The manual
8
In this case, for example, the area surrounding the ATM, included
singed bills, some burnt tiles, soot on the walls, and the smell of smoke.
Although each of these is a burning-type damage that could also have
been caused by fire, here, the damage was caused by the extreme heat
generated by the thermal lance tool as it cuts through the metal surface.
9
The thermal lance can be used underwater. Fire would not sustain if
submerged in water.
12 UNITED STATES V. THOMPSON
makes no mention of fire, except to warn of the risk that fire
may result from the “[s]parks, splatter and molten material
generated by [the] process” of using the thermal lance.
Second, although a byproduct of operating the thermal
lance is that the tool emits “sparks,” or a “flickering flame,”
neither constitutes “fire” in the common meaning of the word.
The sparks are merely particles of the melting metal given off
by the thermal lance. At Eaton’s trial, Detective Black
described these sparks as a “flickering flame.” Whatever the
label, our ordinary understanding of “fire” is that it involves
sustained burning of flames, not just particle-like sparks,
given off by the tool, or a “flickering flame” that is not
sustained burning and ceases whenever the operator of the
tool releases the pistol grip or other mechanism.
Third, even if sparks or a “flickering flame” did constitute
“fire,” they were not “use[d] . . . to commit a[] felony,” but
rather were merely incidental to the use of the thermal lance.
§ 844(h)(1). To “use” means to “actively employ.” See
Bailey v. United States, 516 U.S. 137, 143 (1995) (defining
“use” as “active employment”), superseded by statute, Act of
Nov. 13, 1998, Pub. L. No. 105-386, 112 Stat. 3469.
Operation of a thermal lance actively employs, or uses,
extreme heat and pressurized oxygen to penetrate metal. The
metal being cut never catches fire. The sparks and “flickering
flame” are merely a byproduct of the operation of the tool.
The tool’s function is to use extreme heat—not fire—to cut
through metal. Moreover, even if a “mini-fire” could be said
to result from the sparks or “flickering flame,” this does not
serve the purpose of using the tool because it does not aid in
cutting the metal in any fashion. Quite the contrary, the
UNITED STATES V. THOMPSON 13
successful use of a thermal lance involves careful avoidance
of the risk of fire. For example, here, defendants assiduously
avoided starting a fire by spraying the ATM with water the
entire time that they operated the thermal lance tool.
Thus, we conclude that use of a thermal lance
tool—designed to cut through metal using extreme heat, not
fire—does not fall within the “ordinary, contemporary, [and]
common meaning” of “uses fire.” Maciel-Alcala, 612 F.3d
at 1096; § 844(h)(1).
II.
The dissent reaches a different conclusion by adopting the
government’s definition of “fire” as the “chemical process of
combustion involving heat, light and a combination of smoke
and flame.” According to the dissent, because a chemical
combustion occurs at the tip of the thermal lance that
involves heat, light, and a combination of smoke and a
“flickering flame,” the defendant uses “fire” within the
meaning of § 844(h)(1). Not only does the dissent’s
definition of “fire” fail to comport with the ordinary meaning
of that term but the dissent fails to comprehend that, as
explained earlier, the defendant “uses” not fire, but a thermal
lance, to commit the felony in question. Moreover, the
dissent’s approach to the statutory interpretation of
§ 844(h)(1) was squarely rejected by the Second Circuit in
United States v. Graham, 691 F.3d 153 (2d Cir. 2012).10
10
The Supreme Court granted certiorari, vacated the judgment, and
remanded on grounds not related to the interpretation of § 844(h)(1).
Graham v. United States, 133 S. Ct. 2851 (June 24, 2013) ( No. 12-7274).
We find the Second Circuit’s reasoning persuasive.
14 UNITED STATES V. THOMPSON
In Graham, the Second Circuit resolved a similar dispute
over a similar term in the same sentence of § 844(h)(1).
Graham was convicted for “us[ing] fire or an explosive to
commit any felony” because he shot a gun at the ground to
commit extortion. Graham, 691 F.3d at 155. On appeal,
Graham argued that, as a matter of statutory interpretation,
Congress did not intend “uses . . . an explosive” within the
meaning of § 844(h)(1) to apply to shooting a gun. Id. at 155.
The Second Circuit agreed.
The Second Circuit looked to the “ordinary or natural
meaning of the words chosen by Congress, as well as the
placement and purpose of those words in the statutory
scheme.” Id. at 159 (quoting United States v. Aguilar,
585 F.3d 652, 657 (2d Cir. 2009)). It reasoned that “[i]n
ordinary usage . . . a person carrying a single unspent pistol
cartridge . . . is hardly deemed by virtue of this to be armed
with gunpowder or an explosive.” Id. at 161. Also relevant
to its analysis was that, in the context of the statute’s
definition of “explosive,” it listed other serious explosives
including those “used in detonation, a particularly fierce and
explosive chemical reaction.” Id. at 161 (citation and internal
quotation marks omitted). It explained that “words and
people are known by their companions,” id. at 161 (quoting
Gutierrez v. Ada, 528 U.S. 250, 255 (2000)), and, thus, the
serious and substantial nature of the other explosives listed
suggests that the tiny amount of gunpowder used to fire a gun
does not constitute “an explosive” within the meaning of
§ 844(h)(1), id. at 160–61. The court concluded:
We do not think Congress intended this result,
nor do we think the Government’s
interpretation of § 844(j) [which defines
“explosive” for purposes of § 844(h)(1)]—
UNITED STATES V. THOMPSON 15
that a single 9-millimeter cartridge falls
within its definition of explosive, simply
because the cartridge contains a small
quantity of gunpowder—is reasonable.
Id. at 161.
The same reasoning applies here to the word “fire.” In
the statute, “fire” is a companion to the word “explosive.” To
put it in the Second Circuit’s terms, “[i]n ordinary usage”
someone who uses the thermal lance tool to commit a bank
larceny by melting through the metal backing to the ATM is
“hardly deemed by virtue of this to be [using fire].” Id. at
161. Furthermore, the statutory context, in which § 844(h)(1)
places “fire” directly next to “an explosive” suggests that
Congress intended the words to be interpreted in the same
manner. Gutierrez, 528 U.S. at 254–58. Because the statute
defines “explosive” as referring to those more serious and
substantial uses of explosives as described in Graham, and
not “mini-explosions,” we think it also intends “fire” to refer
to a more substantial occurrence than the incidental emission
of sparks or a “flickering flame,” which could at most be
described as a “mini-fire” at the tip of the thermal lance.
691 F.3d at 161. We reach the same conclusion with respect
to “fire” that the Second Circuit reached with respect to
“explosive” when construing the meaning of § 844(h)(1) in
accordance with the “ordinary usage” of the term at issue. Id.
Like the Second Circuit, we reject the definition proposed by
the government.
III.
The government’s proposed statutory construction
“sweep[s] within the ambit of the statute a wide range of
16 UNITED STATES V. THOMPSON
conduct that cannot reasonably be characterized as [using
fire].”11 United States v. Cabaccang, 332 F.3d 622, 631 (9th
Cir. 2003) (citations omitted). Such an overly broad
interpretation also violates the precept that “[w]henever
possible, ‘we interpret statutes so as to preclude absurd
results.’” Id. at 631 (citations omitted); see also Arizona St.
Bd. for Charter Schs. v. U.S. Dep’t of Educ., 464 F.3d 1003,
1008 (9th Cir. 2006) (“[S]tatutory interpretations which
would produce absurd results are to be avoided.”) (internal
quotation marks omitted).
At oral argument, government’s counsel urged us to
accept his contention that the “prototypical example of fire”
is a “wooden match stick.” Oral Argument at 27:58, United
States v. Thompson, et al., (No. 10-50381+). Overlooking
this prototypical analytical error,12 if using a match
11
The dissent’s interpretation suffers from the same flaw. The only
answer given to the obvious overinclusiveness of its interpretation is that
“[t]he task of deciding whether a case involves potential violations of [a
statute] falls upon the federal prosecutor . . . .” Dissent at 35. This is true
as far as the decision to prosecute, but the ultimate task of statutory
interpretation is for the judiciary and not the prosecutor. After all,
“prosecutorial discretion is not a reason for courts to give improbable
breadth to criminal statutes.” Abuelhawa v. United States, 556 U.S. 816,
823 n.3 (2009). Judges (and juries), not prosecutors, decide whether a
defendant is guilty of a criminal act. We may not abdicate our judicial
responsibility to ensure that criminal statutes are enforced in the manner
Congress intended and in line with the Constitution’s guarantee of due
process merely because a prosecutor has some creative argument as to
why the statute may be stretched to an almost obscene degree.
12
The Latin phrase pars pro toto, “part for the whole,” best describes the
government’s error here. The fallacy is confusing an aspect of the thing
for the thing itself, specifically here, it is incorrect to conclude that
because a “wooden match stick” could, in some circumstances, cause
“fire,” that it is “fire.”
UNITED STATES V. THOMPSON 17
constitutes “us[ing] fire” within the meaning of § 844(h)(1),
then a drug addict in possession of more than five grams of
crack-cocaine, using a match to light his crack pipe, would be
subject to a ten-year enhancement because he used fire to
commit his felony drug offense. Likewise, operating, or even
working in, a “chop shop” that uses tools like the thermal
lance to take apart stolen cars would trigger a similar
enhanced sentence. Manufacturing methamphetamine (or
“cooking meth”), which is often done by using a burner,
would be punished far more harshly if a gas burner rather
than an electric stove were used, even though either may be
employed to make the same drug. Even destroying evidence
by burning it in a fireplace or incinerator would subject the
defendant to an enhanced penalty of 10 years or more that
could not be imposed had he chosen a different method of
destruction. Applying the mandatory ten- or twenty-year
penalty enhancement to such conduct would be absurd.
The Second Circuit likewise found the logical extension
of the government’s position in Graham to be untenable
because it “would mean that the getaway driver in every bank
robbery would be subject to § 844(h)” because the internal
combustion engine relies on a “mini-explosion;” likewise,
any individual merely carrying a pistol cartridge during the
commission of a felony, even telemarketing fraud or software
piracy, could trigger the statute’s enhanced penalty. 691 F.3d
at 161, 163. The absurd results sought by the government in
Graham and the case before us simply constitute one more
reason to reject its position—one leading to clearly
unforeseen and undesired results by punishing conduct that
Congress did not intend—in favor of the more common sense
interpretation that Congress intended.
18 UNITED STATES V. THOMPSON
IV.
Equally relevant, the purpose, context, and history of the
statute make clear that it was not intended to apply to the use
of a tool such as the thermal lance that is not designed to
cause fire. Rather, it was envisioned to apply to uses of fire
that directly cause the harm.
Congress enacted the Anti-Arson Act of 1982, to add
“fire” to the statute at issue, which previously applied only to
uses of “explosives.” Pub. L. No. 97-298, 96 Stat. 1319.
Under the older version of the statute, federal law
enforcement could prosecute arson-type crimes only when
they were started by explosives, which required “extensive
physical and chemical inventory of debris at the fire scene.”
H.R. Rep. No. 97-678, 97th Cong., 2d Sess. (July 28, 1982);
see also 128 Cong. Rec. S4059-63 (April 27, 1982). These
logistical problems caused federal arson investigators to
waste valuable resources trying to determine whether a
particular fire was started by explosives or by liquid
accelerants, like gasoline. See 128 Cong. Rec. S11985-86
(Sept. 22, 1982). The Anti-Arson Act amendments, adding
“fire” to several provisions of the statute, were intended to
address this problem.13
The legislative history establishes that Congress intended
“fire,” as used in § 844(h)(1), to apply to uses of fire such as
13
The Anti-Arson Act amended Title XI of the Organized Crime Control
Act of 1970 by inserting “fire or” after “by means of” in subsections (e),
(f), and (i), and by inserting “fire or” after “uses” in subsection (h)(1).
The amended version of § 844(h)(1) applies to “[w]hoever [] uses fire or
an explosive to commit any felony.” Pub. L. No. 97-298, 96 Stat. 1319(emphasis added).
UNITED STATES V. THOMPSON 19
burning down of buildings “to conceal homicide, and for
fraud against insurance companies.” H.R. Rep. No. 97-678.
Congress was especially concerned with the risk to people
and the costs of arson and arson-like fires. See 128 Cong.
Rec. H4957-60 (Aug. 2, 1982) (statement of Rep. Moffett)
(“[F]ire in the United States kills 8,000 people each year. It
injures as many as 300,000 persons, . . . .”), (statement of
Rep. Sawyer) (“The devastating crime of arson . . . costs the
taxpayers billions of dollars each year and kills and injures
thousands.”); 128 Cong. Rec. S11985 (Sept. 22, 1982)
(statement of Sen. Glenn) (“Each year arson kills 1,000
people, injures in excess of 3,000 people, causes direct
property losses of at least $1.7 billion.”). Clearly, Congress
was concerned with the damage that fire directly causes to
life and property, not with the effect of incidental sparks or a
“flickering flame” on the ability to use a thermal lance or
other tool.
Congress gave no indication whatsoever that it intended
that the statute be used to prosecute the use of a tool such as
a thermal lance that, when used in the ordinary manner, does
not contemplate starting fires. Every item of legislative
history reveals that Congress envisioned the “uses fire”
language to be applicable to cases of substantial fire, where
the fire directly does the harm, particularly where people are
injured or killed, e.g. arson. See, e.g., 128 Cong. Rec. H4957-
60 (Aug. 2, 1982) (statements of Rep. Moffett and Rep.
Sawyer); 128 Cong. Rec. S11985 (Sept. 22, 1982) (statement
of Sen. Glenn). Thus, even if we accepted the government’s
position that the thermal lance uses fire, we would still hold
that § 844(h)(1) does not apply because Congress did not
envision the use of the penalty provision to punish the
employment of a tool to melt metal in the course of
committing a bank larceny.
20 UNITED STATES V. THOMPSON
V.
If we had any doubt remaining as to whether § 844(h)(1)
penalized defendants’ conduct as a use of fire to commit a
felony, reversal would nonetheless be compelled by the rule
of lenity.
The application of the rule of lenity is required because
defendants did not have “fair warning” that their conduct was
subject to the enhanced penalty of § 844(h)(1). See McBoyle
v. United States, 283 U.S. 25, 27 (1931). The “touchstone”
of this question “is whether the statute, either standing alone
or as construed, made it reasonably clear at the relevant time
that the defendant’s conduct was criminal.” United States v.
Lanier, 520 U.S. 259, 267 (1997).
The government has sought enhanced penalties under
§ 844(h)(1) exclusively for arson and arson-like crimes14 and
cross-burnings as in United States v. Wildes, 120 F.3d 468(4th Cir. 1997), and United States v. Hayward, 6 F.3d 1241(7th Cir. 1993). The government advises us of no other case
in which the use of a thermal lance (or similar device or tool)
14
See United States v. Challoner, 583 F.3d 745 (10th Cir. 2009)
(defendant used molotov cocktail to set a diversionary fire at an
abandoned elementary school in order to rob a nearby bank); United States
v. McAuliffe, 490 F.3d 526 (6th Cir. 2007) (arson in furtherance of mail
fraud); United States v. Ihmoud, 454 F.3d 887 (8th Cir. 2006) (arson in
furtherance of mail fraud); United States v. Grassie, 237 F.3d 119 (7th
Cir. 2001) (convicted under § 844(h)(1) for felony destruction of church
by fire); United States v. Yankowski, 184 F.3d 1071 (9th Cir. 1999)
(activist that set fire to abortion clinic charged under § 844(h)(1) in
violation of the Hobbs Act); United States v. Ruiz, 105 F.3d 1492 (1st Cir.
1997) (convicted under § 844(h)(1) for arson in furtherance of mail fraud
to collect insurance proceeds).
UNITED STATES V. THOMPSON 21
was prosecuted under § 844(h)(1), despite there having been
many criminal cases involving the use of such tools.15
Neither the statute nor prior applications of it gave the
defendants in this case fair warning that their use of a thermal
lance, rather than another cutting tool, to commit a bank
larceny rendered them subject to additional ten- and twenty-
year penalties.
CONCLUSION
For the reasons explained above, we conclude that
defendants’ use of the thermal lance does not fall within the
scope of the penalty enhancement. We therefore reverse
defendants’ convictions under § 844(h)(1). Because
defendants’ conspiracy convictions under § 844(m) were
predicated on the assumption that defendants’ conduct fell
within the ambit of § 844(h)(1), we likewise reverse the
15
See United States v. Newsom, 508 F.3d 731 (5th Cir. 2007) (defendant
not charged with § 844(h)(1) for using a “cutting torch” to open a storage
unit and steal explosives); United States v. Ross, 43 Fed. Appx. 751 (6th
Cir. 2002) (defendants not charged with enhanced penalties under
§ 844(h)(1) for manufacture of methamphetamine with an acetylene
torch); United States v. Barnhill, 213 F.3d 643 (9th Cir. 2000)
(unpublished) (defendants not charged with enhanced penalties under
§ 844(h)(1) for using cutting torches in a bank larceny); United States v.
Harty, 930 F.2d 1257 (7th Cir. 1991) (defendants not charged with
enhanced penalties under § 844(h)(1) for attempted vault larceny with an
acetylene torch); United States v. Porter, 881 F.2d 878 (10th Cir. 1989)
(defendants not charged with enhanced penalties under § 844(h)(1) for
bank larceny with acetylene torch); United States v. Molinares Charris,
822 F.2d 1213 (1st Cir. 1987) (defendants not charged with enhanced
penalties under § 844(h)(1) for use of a cutting torch to alter a bulkhead
of a boat in an attempt to conceal drugs they intended to distribute);
United States v. Kupa, No. 10–CR–65–01, 2011 WL 3555731 (E.D.N.Y.
July 27, 2011) (defendant did not receive enhanced penalties under
§ 844(h)(1) for bank burglary with blow torch).
22 UNITED STATES V. THOMPSON
convictions on the conspiracy counts. See United States v.
Barone, 71 F.3d 1442, 1447 (9th Cir. 1995). We vacate the
sentences on the bank larceny counts and remand for
resentencing.
REVERSED, VACATED, and REMANDED.
MURGUIA, Circuit Judge, dissenting:
The majority’s holding that use of a thermal lance, when
ignited to burn through and melt metal automated teller
machine (“ATM”) vaults during a bank robbery, does not
involve the use of fire under 18 U.S.C. § 844(h)(1) is counter
to the ordinary and common definition of fire. Because
defendants’ use of a thermal lance to commit bank larceny
constitutes the use of fire to commit a felony for purposes of
18 U.S.C. § 844(h)(1), I would affirm each sentencing
enhancement.
I.
A.
Samuel Eaton devised a scheme to steal money from local
banks’ ATM vaults. For the first robbery, Eaton recruited
Christopher Williams, a co-conspirator who was charged
separately and testified for the prosecution at trial, as well as
Clinton Thompson III and Tavrion Dawson. In order to open
the metal ATM vault and steal the monies locked inside,
Eaton used a thermal lance. While Eaton used the thermal
lance to melt through the vault exterior, Williams operated a
makeshift extinguisher—a hand-held sprayer filled with
UNITED STATES V. THOMPSON 23
water—to contain the fire and prevent it from burning up the
monies housed inside. Eaton and Williams absconded with
approximately $80,000, leaving behind charred walls,
scorched $20 bills strewn across burnt tile flooring, a vault
coated with orange soot, and the pungent odor of smoke
permeating the air.1
Less than two weeks after the first heist, Eaton, together
with Williams and Thompson, committed a second bank
robbery. Eaton again used a thermal lance to burn through
the ATM vaults’ exteriors while Williams operated a
makeshift extinguisher to prevent the spread of fire and
incineration of the money. This time, Eaton and Williams
absconded with over $151,000, leaving behind burned out
vaults and additional physical damage to the premises.
A jury convicted Thompson, Dawson, and Eaton of,
among other things, conspiring to use fire to commit bank
larceny in violation of 18 U.S.C. § 844(m).2 Their sentences
were increased pursuant to 18 U.S.C. § 844(h)(1), which
1
The majority’s contention that defendants “assiduously avoided
starting a fire by spraying the ATM with water the entire time that they
operated the thermal lance tool,” Majority op. at 13, lacks merit in light of
the condition in which the defendants left the premises. Defendants
simply contained the fire that they started. Cf. Larry F. Jessus, Welding:
Principles and Applications 211 (5th ed. 2004) (explaining that “[f]ilms
have portrayed the oxygen lance as a tool used by thieves to cut into
safes” but that “[i]n reality, this would result in the valuables in the safe
being destroyed”).
2
A grand jury returned indictments charging defendants with bank
larceny in violation of 18 U.S.C. § 2113(b), conspiracy to use fire during
the commission of a felony in violation of 18 U.S.C. § 844(m), and the use
of fire during the commission of a felony in violation of 18 U.S.C.
§ 844(h)(1).
24 UNITED STATES V. THOMPSON
authorizes an enhancement for anyone who “uses fire” to
commit a felony that can be prosecuted in federal court. On
direct appeal, Thompson, Dawson, and Eaton challenge the
sentencing enhancements, contending that use of a thermal
lance is not akin to “use[ of] fire” under section 844(h)(1).
Their challenge should fail.
B.
The thermal lance, also referred to as a “‘burning bar,’”
Construction Industry Publications, House Builders Health &
Safety Manual 30-7 (May 2008), consists “of a bundle of
steel rods inside a steel tube . . . . Oxygen . . . is passed down
the tube and the end is lit with the aid of an oxy/acetylene
torch. The result is a spectacular white-hot firework flame
with formidable penetrating powers.” N.A. Downie,
Industrial Gases 322 (2002); accord John S. Scott,
Dictionary of Civil Engineering 455 (4th ed. 1993). To
operate the thermal lance, a user squeezes a handle on the
torch to commence the flow of oxygen through the tube
containing the cutting rods. Then the user brings a striker
plate into contact with the tip of the torch to generate a spark
that reacts with the oxygen flowing inside the tube. See also
21 The New Illustrated Science and Invention Encyclopedia:
How it Works 2807 (1988) (explaining that “[p]ure oxygen is
blown down the tube, the core wire catches fire, then burns
with intense heat.” (emphasis added)).
Once ignited, the thermal lance produces a flame that
burns at temperatures exceeding 10,000 degrees Fahrenheit.
The flame continues to burn so long as oxygen flows through
the torch and the cutting rods are not depleted. During use,
the thermal lance generates sparks, splatter, and molten
material. A police detective testified at trial that the thermal
UNITED STATES V. THOMPSON 25
lance is a dangerous tool because it incorporates a “fire
factor” that burns everything with which it comes into
contact. See also Construction Industry Publications, supra,
at 30-7 (identifying fire as the “principal hazard associated
with thermic lancing”); Neil A. Downie, The Ultimate Book
of Saturday Science 422 (2012) (“Like any flame, the thermic
lance will set fire to things that are flammable . . . .”).
Indeed, oxygen-fueled thermal lances are “particularly useful
for . . . igniting furnaces.”3 17 Marshall Cavendish Corp.,
How It Works: Science and Technology 2142 (3d ed. 2003).
The thermal lance may be used to cut, pierce, and gouge
metal. While these techniques suggest that a thermal lance
operates in a manner similar to a saw blade, side handle
grinder, or other cutting tool, the thermal lance actually
interacts with a surface differently: it changes the surface’s
state of matter through extreme heating and melting. See id.
(explaining that a thermal lance “uses the heat released by a
substance burning in pure oxygen to cut through a material by
melting it”); see also Clifton Smith & David J. Brooks,
Security Science: The Theory and Practice of Security 125
(2013) (explaining that thermal lances heat metal “to the
kindling or ignition temperature and rapidly oxidiz[e] it by a
regulated jet of oxygen”). By way of analogy, both an ice
pick and a lit candle can alter the shape of a block of ice, but
only the latter can melt ice into water.
Although the thermal lance instructional manual entered
into evidence “makes no mention of fire, except to warn of
the risk that fire may result” from its use, Majority op. at 12,
3
Thus, the majority’s assertion that the thermal lance, “when used in the
ordinary manner, does not contemplate starting fires,” Majority op. at 19,
is incorrect.
26 UNITED STATES V. THOMPSON
it contains multiple references to terms that we commonly
and logically associate with the presence of fire. These
include “burn”; “burning tip”; “flame”; “ignition”;
“sparkling”; “striker plate”; and “torch.”4 For example, users
are cautioned to “[a]lways wear flame or spark resistant
clothing,” “[n]ever point the torch at anybody,” “[n]ever use
any other rods as hazardous backflashes or internal burning
may occur,” and “[n]ever allow falling sparks or molten
metal” to contact the instrument. Moreover, users are advised
that the “[r]od sparkling indicates ignition” and they should
“[p]lace the burning tip of the rod against the target material”
at an angle. Use of any of these terms does not remove the
fire element from a thermal lance.
II.
Since this appeal raises a question of statutory
construction and interpretation, which we address de novo,
United States v. Norbury, 492 F.3d 1012, 1014 (9th Cir.
2007), we first look to the language of 18 U.S.C. § 844(h)(1),
United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241–42
(1989). “A fundamental canon of statutory construction is
that, unless otherwise defined, words will be interpreted as
taking their ordinary, contemporary, common meaning.”
Perrin v. United States, 444 U.S. 37, 42 (1979). Thus, when
the plain meaning of a statutory provision is unambiguous,
that meaning controls. Demarest v. Manspeaker, 498 U.S.
184, 190 (1991); see also Conn. Nat’l Bank v. Germain,
4
Other common synonyms for “fire,” of course, are: “flame,”
“conflagration,” “blaze,” “heat,” “glow,” “warmth,” “luminosity,”
“combustion,” “pyre,” “flare,” and “inferno” (nouns); “kindle,” “ignite,”
“inflame,” “light,” and “burn” (verbs); and “scorched,” “smoldered,” and
“heated” (adjectives). Webster’s New World Thesaurus 163 (3d ed. 2003).
UNITED STATES V. THOMPSON 27
503 U.S. 249, 254 (1992) (“When the words of a statute are
unambiguous, then, this first canon is also the last: ‘judicial
inquiry is complete.’” (quoting Rubin v. United States,
449 U.S. 424, 430 (1981))). In other words, where “the
language is plain and admits of no more than one meaning,
the duty of interpretation does not arise, and the rules which
are to aid doubtful meanings need no discussion.” Caminetti
v. United States, 242 U.S. 470, 485 (1917); see also Von
Eichelberger v. United States, 252 F.2d 184, 186 (9th Cir.
1958) (“The provision of the statute under which the
indictment . . . was drawn is plain and unambiguous and
needs no resort to provisions of other enactments to make its
meaning clear.”).
A.
Section 844(h) provides, in relevant part:
Whoever—
(1) uses fire or an explosive to commit any
felony which may be prosecuted in a court of
the United States, . . .
including a felony which provides for an
enhanced punishment if committed by the use
of a deadly or dangerous weapon or device
shall, in addition to the punishment provided
for such felony, be sentenced to imprisonment
for 10 years. In the case of a second or
subsequent conviction under this subsection,
such person shall be sentenced to
imprisonment for 20 years.
28 UNITED STATES V. THOMPSON
18 U.S.C. § 844(h)(1)–(2) (2011). Subsection (m) provides
that a person who conspires to commit an offense under
section 844(h) “shall be imprisoned for any term of years not
exceeding 20, fined under this title, or both.” Id. § 844(m).
The absence of a definition for “fire” in section 844(h)(1)
requires us to attribute to “fire” its ordinary, contemporary,
and common meaning. Perrin, 444 U.S. at 42; cf. United
States v. Ressam, 553 U.S. 272, 274 (2008) (analyzing
18 U.S.C. § 844(h)(2), which addresses carrying an explosive
“during the commission of any felony,” and concluding that
there was “no need to consult dictionary definitions of the
word ‘during’ in order to arrive at the conclusion that
respondent engaged in the precise conduct described in” the
statute).
Fire is an unambiguous term that does not account for
variations in size, intensity, or our ability to contain it. We
have observed that “[a] common dictionary definition of fire
is ‘a rapid persistent chemical reaction that releases heat and
light.’” Maffei v. N. Ins. Co. of N.Y., 12 F.3d 892, 896 (9th
Cir. 1993). Another lexicon defines fire as “the phenomenon
of combustion as manifested in light, flame, and heat and in
heating, destroying, and altering effects,” Webster’s Third
New International Dictionary 854 (2002), and a third
indicates that fire is “popularly conceived as a substance
visible in the form of flame or of ruddy glow or
incandescence,” 5 The Oxford English Dictionary 942 (2d ed.
1989). Strikingly absent from any of these definitions is any
distinction, introduced for the first time by the majority,
related to the sustainability of a flame5 and the presence of
5
The majority incorrectly construes fire to require a sustained flame.
Majority op. at 12. Rather, fire requires the interaction of fuel, oxygen,
and heat to create a sustaining chemical reaction that facilitates
UNITED STATES V. THOMPSON 29
sparks.6 Since the meaning of “fire” is not subject to debate,
I must conclude that 18 U.S.C. § 844(h)(1) is unambiguous:
anyone who “uses fire” to commit a felony that can be
prosecuted in federal court can be charged under the statute.
Accord United States v. Hayward, 6 F.3d 1241, 1246 (7th Cir.
1993) (“Our reading of section 844(h)(1) leads us to conclude
that the intent of Congress is clearly expressed in the
language of the statute.”), overruled on other grounds by
United States v. Colvin, 353 F.3d 569 (7th Cir. 2003). The
majority’s invocation of legislative history to illuminate the
statute’s meaning is therefore erroneous.7
B.
Having concluded that 18 U.S.C. § 844(h)(1) is
unambiguous and fire, in fact, means fire, I cannot ignore the
glaring reality that a thermal lance incorporates every
characteristic of fire. Neither could the jury, which found that
combustion. See National Fire Protection Association, Fundamentals of
Fire Fighter Skills 128 (2004) (explaining that combustion “is a rapid,
self-sustaining process that combines oxygen with another substance and
results in the release of heat and light”).
6
What the majority characterizes as “particle-like sparks” are, in fact,
fire. See 16 The Oxford English Dictionary 118 (2d ed. 1989) (defining
the term “spark” as “[a] small particle of fire, an ignited fleck or fragment,
thrown off from a burning body or remaining in one almost extinguished”
(emphasis added)).
7
The majority also errs by applying the rule of lenity to 18 U.S.C.
§ 844(h)(1). “Application of the rule of lenity is appropriate only when
there remains ‘a grievous ambiguity’ in the language of the statute after
a court has used every method of statutory construction to resolve it.”
United States v. Wildes, 120 F.3d 468, 471 (4th Cir. 1997). Section
844(h)(1) is devoid of any ambiguity, grievous or otherwise.
30 UNITED STATES V. THOMPSON
defendants used fire to commit—and conspire to
commit—bank larceny. First, fire is generated from a
chemical reaction that involves the presence of oxygen. See,
e.g., Raymond Friedman, Principles of Fire Protection
Chemistry and Physics 255 (3d ed. 1998) (explaining that
fires burning in oxygen-enriched atmospheres “not only burn
hotter and faster but also, not surprisingly, are more difficult
to extinguish”). Similarly, the thermal lance used by
defendants could not operate without an oxygen tank that
fueled the chemical reaction necessary to ignite the
instrument. Second, fire is created by using friction—rubbing
two sticks, striking a match, scratching the flint wheel on a
cigarette lighter—to generate a spark that initiates that
chemical reaction. See, e.g., Arthur E. Cote & Percy Bugbee,
Principles of Fire Protection 53 (1988) (explaining that
mechanical heat energy in the form of friction frequently
causes fire and observing that the “ageless procedure for
starting a fire by rubbing sticks together is an example of
ignition by mechanical heating”). Similarly, defendants used
a striker plate, which created friction when it contacted the
torch’s cutting rods, to generate the spark initiating the
chemical reaction that, in turn, ignited the flame. Third, fire
produces a visible flame, heat, and sparks when it interacts
with a substance. Similarly, the thermal lance produces a
visible flame at the tip of the torch, generates heat exceeding
10,000 degrees Fahrenheit, and sparks when the torch
interacts with a substance. In essence, a thermal lance is a
large, industrial version of an ordinary cigarette lighter: a user
ignites it, and it emits light, a flame, and heat.8
8
The majority’s attempt to liken the thermal lance to a household iron,
which we do not commonly consider “uses fire” to remove wrinkles from
fabric, is anemic and misplaced. The soleplate of an iron simply does not
UNITED STATES V. THOMPSON 31
The majority also declares that a thermal lance, which can
operate underwater, cannot possibly generate fire because the
latter, in its view, “would not sustain if submerged in water.”
Majority op. at 11 n.9. However, fire can, in fact, burn while
submerged. See, e.g., Mark W. Huth, Residential
Construction Academy: Basic Principles for Construction 65
(3d ed. 2012) (explaining that “oxygen for an underwater
magnesium fire comes from the water” and welding processes
that use “pure oxygen, supplied in tanks,” significantly
increase the danger of fire); see also Friedman, supra, at
255–56 (discussing fires that can occur in nonatmospheric
pressure environments, including underwater).
The majority’s attempt to redefine “fire” defies science
and runs counter to our common sense meaning and
fundamental understanding of fire. For the same reasons we
ascribe the term “fire” to warmth emanating from the hearth,
an uncontrolled conflagration with which firefighters
contend, and light flickering from a candle, “fire” properly
describes the flame emanating from a thermal lance’s burning
torch. Ultimately, the majority agrees. See Majority op. at 15
(conceding that a “‘mini-fire’” burns “at the tip of the thermal
lance” (emphasis added)).
III.
In order for a district court to impose a sentencing
enhancement under section 844(h)(1), the government must
prove that a person “uses fire . . . to commit any felony” that
can be prosecuted in federal court. 18 U.S.C. § 844(h)(1).
The Second Circuit, relying solely on the plain language of
emit light or generate a flame, and it certainly does not require combustion
for operation.
32 UNITED STATES V. THOMPSON
section 844(h)(1), has determined that “to ‘use’ fire means
the accused must have carried out the crime by means of
fire.”9 United States v. Desposito, 704 F.3d 221, 227 (2d Cir.
9
The majority’s embracement of another Second Circuit case, United
States v. Graham, 691 F.3d 153 (2d Cir. 2012), vacated on other grounds,
133 S. Ct. 2851 (2013), is wholly inapposite. In Graham, the Second
Circuit addressed whether use of a firearm, which “expel[s] bullets by the
combustion of gunpowder or other explosive material contained within the
cartridge,” id. at 160–61, constituted use of an “explosive” for purposes
of 18 U.S.C. § 844(h). It answered that question in the negative.
The Second Circuit’s analysis focused upon something we do not
have in this case: a definition of the term at issue. Congress, the Second
Circuit explained, expressly and comprehensively defined the term
“explosive,” see 18 U.S.C. § 844(j), to include “gunpowders” as part of
“a list of materials” that included high explosives, detonators, detonating
agents, and blasting materials, 691 F.3d at 161. “In ordinary usage,” the
Second Circuit reasoned,
a person carrying a single unspent pistol cartridge in his
pocket—a cartridge containing a small amount of
gunpowder—is hardly deemed by virtue of this to be
armed with gunpowder or an explosive. We do not
think Congress intended this result, nor do we think . . .
that a single 9-millimeter cartridge falls within its
definition of explosive[] simply because the cartridge
contains a small quantity of gunpowder—is reasonable.
Id. It further concluded that ammunition is not an explosive for purposes
of 18 U.S.C. § 844(j) simply because it may be fired from a gun. Id. at
162.
Graham, therefore, focused upon whether “gunpowder” from a single
firearm fell within the statutory definition of “explosives.” This case does
not present us with a similar question because section 18 U.S.C.
§ 844(h)(1) neither qualifies nor quantifies “fire.” Where, as here, “a
word is not defined by statute, we normally construe it in accord with its
ordinary or natural meaning.” Smith v. United States, 508 U.S. 223, 228
UNITED STATES V. THOMPSON 33
2013). I agree. Here, there was more than sufficient
evidence to convict defendants of using and conspiring to use
fire during the commission of each bank robbery. As the
Seventh Circuit has explained, “there is a significant
difference between using fire simply to commit a felony and
using fire to facilitate or assist in the commission of a
felony.” Hayward, 6 F.3d at 1246. The former implicates
18 U.S.C. § 844(h)(1), but the latter does not. See id. at
1246–47. In this case, defendants’ use of the thermal lance
was integral to their commission of the crimes because,
absent fire emanating from the thermal lance torch to burn
through and melt the metal ATM vaults, defendants could not
access the monies they stole. Cf. id. at 1246–47
(distinguishing the circumstance in which a thief uses a
cigarette lighter “as a light source to help him insert the key
into the lock of the truck he wants to steal” and explaining
that, in such a case, the lighter merely “facilitates or assists in
the commission of the crime”). Defendants brought a thermal
lance to the crime scene for one purpose: to ignite a flame
capable of burning at an extremely high temperature that
would melt the ATM vaults and enable them to extract the
monies stored inside. It therefore defies logic to conclude
that fire is only incidental to use of the thermal lance and
played no part in the actual commission of bank larceny.10
(1993) (citing Perrin, 444 U.S. at 42). As I explained above, fire simply
means fire, and nothing in Graham alters that conclusion.
10
The majority’s reasoning is nonsensical. The defendants did not use
the thermal lance to illuminate their path inside the banks until they
reached the ATM vaults. Instead, they specifically used the intense fire
emanating from the thermal lance torch to burn through the vaults and
gain access to the monies stored inside. Use of the thermal lance in this
case was therefore essential, not incidental, to the commission of the bank
larcenies.
34 UNITED STATES V. THOMPSON
Congress did not limit application of a sentencing
enhancement under 18 U.S.C. § 844(h)(1) to anyone who
employs a particular process or utilizes a specific tool or
instrument to create fire that is used to commit a felony.
Despite the majority’s creative efforts to recast the facts,
defendants used fire, which they ignited with a thermal lance,
to commit their crimes. Nothing in section 844(h)(1)
insulates defendants from sentencing enhancements simply
because the fire they used emanated from the torch of a
thermal lance and not from a less sophisticated fire-
generating device.
Section 844(h)(1) also requires the use of fire to commit
“any felony . . . .” 18 U.S.C. § 844(h)(1) (emphasis added).
“Read naturally, the word ‘any’ has an expansive meaning,
that is, ‘one or some indiscriminately of whatever kind.’”
United States v. Gonzales, 520 U.S. 1, 5 (1997). Because
Congress “did not add any language limiting the breadth of
that word,” id., the word “any” in section 844(h)(1) refers to
all, not a specific subset of, felonies. See Wildes, 120 F.3d at
471 (holding that “‘any felony’ as used in § 844(h)(1) is not
limited to offenses involving the commission of arson and
therefore includes conspiracy to violate civil rights by
burning a cross”); United States v. LaPorta, 46 F.3d 152, 156
(2d Cir. 1994) (explaining that section 844(h)(1), while
“limited to fire or explosives, sweeps more broadly; it
proscribes generally the use of these means to commit ‘any’
federal felony” (emphasis added)); Hayward, 6 F.3d at 1246(concluding that section 844(h)(1), with “simple, clear
terms[,] . . . does not limit itself to the prosecution of arson
cases”). A defendant who uses fire to commit any federal
UNITED STATES V. THOMPSON 35
felony, therefore, may be charged with violating 18 U.S.C.
§ 844(h)(1).11
The executive branch is responsible for investigating and
prosecuting crime. Whether fire is used to commit a felony
depends upon the facts surrounding the commission of each
crime. The task of deciding whether a case involves potential
violations of 18 U.S.C. § 844(h)(1) and (m) falls upon the
federal prosecutor, who possesses broad discretion to
determine what charges to bring. See United States v. Kidder,
869 F.2d 1328, 1335 (9th Cir. 1989). Such discretion, the
Supreme Court observed, “is an integral feature of the
criminal justice system, and is appropriate, so long as it is not
based upon improper factors.” United States v. LaBonte,
520 U.S. 751, 762 (1997). While a prosecutor’s discretion is
not unfettered, see Abuelhawa v. United States, 556 U.S. 816,
823 n.3 (2009); Bordenkircher v. Hayes, 434 U.S. 357, 365
(1978), the majority’s speculation about hypothetical
prosecutions is inappropriate. See United States v. Severns,
559 F.3d 274, 287–88 (5th Cir. 2009) (concluding that
“Supreme Court precedent requires us to consider only the
elements of use of fire and the particular predicate offense at
issue rather than any possible use of fire to commit any
conceivable felony” and emphasizing that “courts must
engage in realistic probabilities, not theoretical possibilities,
in determining how statutes might be violated”). Since
defendants unequivocally used—and conspired to use—fire
to commit bank larceny, their prosecution under and the
11
Such felonies include, but are certainly not limited to, mail fraud, see
United States v. Beardslee, 197 F.3d 378, 384 & n.3 (9th Cir. 1999), bank
larceny, and tampering with evidence, see Desposito, 704 F.3d at 224 &
n.3.
36 UNITED STATES V. THOMPSON
sentencing enhancements they received in accordance with
18 U.S.C. § 844(h)(1) were proper.
CONCLUSION
When it enacted 18 U.S.C. § 844(h)(1), Congress
determined that anyone who “uses fire” to commit a felony
that can be prosecuted in federal court is eligible for a
sentencing enhancement. Our common, contemporary
understanding of fire—a chemical reaction producing light,
heat, and a flame—has remained unchanged throughout
human history. The flame generated by a thermal lance,
which is fueled by an oxygenated chemical reaction that
produces light and burns at over 10,000 degrees Fahrenheit,
falls within the plain meaning of “fire.”
Defendants used—and conspired to use—fire, which they
ignited and controlled with a thermal lance, to commit bank
larceny by burning and melting metal ATM vaults. Without
use of the fire generated by a thermal lance, defendants’
scheme to steal monies secured inside those vaults would
have gone up in smoke. Since 18 U.S.C. § 844(h)(1) allows
for sentencing enhancements under these facts, I would
affirm each sentence.12 Accordingly, I respectfully dissent.
12
Whether the resulting sentences are overly harsh is not a question for
us to decide.