Argued and Submitted April 8, 2013—Pasadena, California
Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding Argued and D.C. Nos. 2:10-cr-00304-JFW-1, 2:10-cr-00304-JFW-2, 2:10-cr-00304-JFW-3
Mark Yanis (argued), Huntington Beach, California, for Defendant-Appellant Clinton Thompson, III.
Gretchen Fusilier (argued), Carlsbad, California, for Defendant-Appellant Tavrion Dawson.
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.
Before: Stephen Reinhardt and Mary H. Murguia, Circuit Judges, and Donald W. Molloy, District Judge. [*]
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.
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. § 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) 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.
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,  Clinton Thompson, III, and Tavrion Dawson. On the evening of January 28, 2008,  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 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.
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 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."
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.
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. ...