United States v. Thompson, No. 10-50381 (9th Cir. 2013)
Annotate this CaseDefendants were convicted of using a thermal lance to cut open the back of an ATM in order to steal the money it contained. Under 18 U.S.C. 844(h)(1), a mandatory ten-year consecutive sentence was imposed on anyone who "uses fire... to commit any felony." The enhancement was increased to twenty mandatory consecutive years for a second offense. Rejecting the government's definition of "fire," the court concluded that the use of a thermal lance tool - designed to cut through metal using extreme heat - did not fall within the ordinary, contemporary, and common meaning of "uses fire." Further, 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 was not designed to cause fire. Finally, application of the rule of lenity was required in these circumstances where defendants did not have "fair warning" that their conduct was subject to the enhancement penalty of section 844(h)(1). Accordingly, the court reversed defendants' convictions under section 844(h)(1) and reversed as to the conspiracy counts as well. The court vacated the sentences and remanded for resentencing.
Court Description: 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.
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