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.
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,
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 canister 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 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 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."
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 canister 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.
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. 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.
This appeal raises a question of statutory interpretation that we review de novo.
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, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001). The Second 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, ___ U.S. ___, 133 S.Ct. 2851, ___ L.Ed.2d ___ (2013).
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
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, 116 S.Ct. 501, 133 L.Ed.2d 472 (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 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).
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
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, 120 S.Ct. 740, 145 L.Ed.2d 747 (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:
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, 120 S.Ct. 740. 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
The government's proposed statutory construction "sweep[s] within the ambit of the statute a wide range of conduct that cannot reasonably be characterized as [using fire]."
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,
The Second Circuit likewise found the logical extension of the government's position in Graham to be untenable because it
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.
The legislative history establishes that Congress intended "fire," as used in § 844(h)(1), to apply to uses of fire such as 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
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, 51 S.Ct. 340, 75 L.Ed. 816 (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, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997).
The government has sought enhanced penalties under § 844(h)(1) exclusively for arson and arson-like crimes
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 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.
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.
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 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.
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).
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 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."
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
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 1016, 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."
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, 109 S.Ct. 1026, 103 L.Ed.2d 290 (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, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). Thus, when the plain meaning of a statutory provision is unambiguous, that meaning controls. Demarest v. Manspeaker, 498 U.S. 184, 190, 111 S.Ct. 599, 112 L.Ed.2d 608 (1991); see also Conn. Nat'l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (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, 101 S.Ct. 698, 66 L.Ed.2d 633 (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, 37 S.Ct. 192, 61 L.Ed. 442 (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.").
Section 844(h) provides, in relevant part:
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, 100 S.Ct. 311; cf. United States v. Ressam, 553 U.S. 272, 274, 128 S.Ct. 1858, 170 L.Ed.2d 640 (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 flame
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
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 1016 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 1017 (conceding that a "`mini-fire'" burns "at the tip of the thermal lance" (emphasis added)).
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 section 844(h)(1), has determined that "to `use' fire means the accused must
Congress did not limit application of a sentencing enhancement under 18 U.S.C. § 844(h)(1) to anyone who employs a particular
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, 117 S.Ct. 1032, 137 L.Ed.2d 132 (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 felony, therefore, may be charged with violating 18 U.S.C. § 844(h)(1).
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, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997). While a prosecutor's discretion is not unfettered, see Abuelhawa v. United States, 556 U.S. 816, 823 n. 3, 129 S.Ct. 2102, 173 L.Ed.2d 982 (2009); Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 54 L.Ed.2d 604 (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 sentencing enhancements they received in accordance with 18 U.S.C. § 844(h)(1) were proper.
When it enacted 18 U.S.C. § 844(h)(1), Congress determined that anyone who
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.
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,
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.
