United States v. Colvin, James G.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 00-3400
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES G. COLVIN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 99-158-CR-01-D/F—S. Hugh Dillin, Judge.
____________
ARGUED NOVEMBER 6, 2002—DECIDED DECEMBER 24, 2003
____________
Before FLAUM, Chief Judge, and POSNER, COFFEY,
EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P.
WOOD, EVANS, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. James Colvin was convicted
on charges arising out of his role in a cross burning and
sentenced to 22 years’ imprisonment, all but two years of
which were imposed under statutes calling for mandatory
ten-year consecutive sentences. In this appeal, we must
decide whether his conviction and ten-year consecutive
sentence under 18 U.S.C. § 844(h)(1), which punishes the
use of fire in the commission of “any felony,” can be sus-
tained when the predicate offense is a violation of 42
2 No. 00-3400
U.S.C. § 3631, intimidation and interference with federal
housing rights, which is a felony if fire is used. We conclude
that it can, and therefore affirm the § 844(h)(1) conviction
on this basis, even though we agree with Colvin that his
conspiracy conviction under 18 U.S.C. § 241 cannot serve as
the predicate for application of § 844(h)(1).
Colvin was also convicted under 18 U.S.C. § 924(c) for
using or carrying a firearm during a crime of violence,
which also carries a mandatory consecutive term—in this
case ten years because the firearm was a semiautomatic
assault weapon. We agree that the district court should
have submitted the firearm type (an element of the offense
under the relevant version of the statute) to the jury, but
the point was not raised at trial and we find no plain error
warranting reversal. We therefore affirm.
I. BACKGROUND
Colvin and two of his acquaintances, Travis Funke and
Lee Mathis, decided to burn a cross in front of the home of
Luis Ortiz, a man of Puerto Rican descent whom Colvin
mistakenly believed was his rival for the affections of a
mutual friend. They apparently got the idea after Funke
told Colvin about his participation in another cross burning
several days earlier. Permission was obtained from Colvin
and Funke’s superior in the Indiana Ku Klux Klan and,
emboldened after an evening of drinking, they, along with
Mathis, built a cross in Colvin’s garage. They wrapped it in
old sheets, doused it with flammable liquids, loaded it into
Colvin’s truck, and drove to Ortiz’s home, where they
positioned the cross in the front yard. Mathis set the cross
on fire while Colvin sat in his truck and watched. Funke,
standing near the truck, asked Colvin to hand him one of
two guns (a semiautomatic assault rifle and a handgun)
lying in the truck, in case someone came out. Colvin gave
No. 00-3400 3
him the handgun but, fortunately, no one appeared and the
gun was not fired.
Funke and Mathis entered into plea agreements, in which
they agreed to cooperate, and they were not charged with
the offenses carrying the mandatory consecutive pun-
ishments. Funke was sentenced to 46 months’ imprison-
ment and Mathis was sentenced to 30 months. They both
testified at Colvin’s trial, and the jury convicted him of: (1)
intimidation and interference with the exercise of housing
rights by use of fire (42 U.S.C. § 3631); (2) conspiracy to
threaten or intimidate persons in the free exercise or en-
joyment of housing rights (18 U.S.C. § 241); (3) use of fire in
the commission of a felony (id. § 844(h)(1)); and (4) using or
carrying a firearm during a crime of violence (id. U.S.C.
§ 924(c)). The district court sentenced Colvin to 22 years’
imprisonment, including concurrent two-year sentences on
the § 3631 and § 241 charges and ten-year sentences on the
§ 844(h)(1) and § 924(c) charges, to run consecutive to each
other and to the § 3631 and § 241 sentences. Colvin appeals
his convictions for violations of the statutes carrying the
mandatory consecutive ten-year sentences—§§ 844(h)(1)
and 924(c).
II. ANALYSIS
A. Using Fire in the Commission of a Felony
(18 U.S.C. § 844(h)(1))
1. 42 U.S.C. § 3631 as predicate felony.
Colvin asserts that his conviction under § 844(h)(1) for
using fire in the commission of a felony violates the Double
Jeopardy Clause of the Fifth Amendment to the extent it is
based on his conviction under 42 U.S.C. § 3631, which itself
carries an enhanced punishment for using fire. The Double
Jeopardy Clause protects individuals from being subjected
to trial and possible conviction more than once for the same
4 No. 00-3400
offense. Missouri v. Hunter, 459 U.S. 359, 365 (1983). For
multiple sentences imposed in a single trial, however, the
Double Jeopardy Clause “does no more than prevent the
sentencing court from prescribing greater punishment than
the legislature intended.” Id.; see also United States v.
Handford, 39 F.3d 731, 735 (7th Cir. 1994) (explaining why
the Double Jeopardy Clause has been interpreted in this
way). Our focus, therefore, is on whether Congress intended
to authorize cumulative punishment under 18 U.S.C.
§ 844(h)(1) when the predicate felony already contains an
enhancement for the use of fire.
We begin with the language of § 844(h)(1), which pro-
vides:
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. . . . Notwithstanding any other provision of
law, . . . the term of imprisonment imposed under
this subsection [shall not] run concurrently with
any other term of imprisonment including that im-
posed for the felony in which the explosive was used
or carried.
18 U.S.C. § 844(h)(1) (emphasis added). In two earlier cases
considering the application of § 844(h)(1) in the context of
cross burnings, United States v. Hartbarger, 148 F.3d 777(7th Cir. 1998), and United States v. Hayward, 6 F.3d 1241(7th Cir. 1993), we concluded that the “any felony” language
in the opening clause of the statute by itself expressed
Congress’ intent to reach fire-related felonies, and therefore
affirmed the convictions under § 844(h)(1) based on the
No. 00-3400 5
defendants’ conviction for conspiracy to interfere with
federal housing rights under 18 U.S.C. § 241. See
Hartbarger, 148 F.3d at 785; Hayward, 6 F.3d at 1246-47.
Other courts have arrived at similar results, relying on
§ 844(h)(1)’s specification that the punishment is “in
addition to the punishment provided for” the underlying
felony and the direction that the punishment be imposed
consecutively with “any other term of imprisonment.” See
United States v. Riggio, 70 F.3d 336, 339 (5th Cir. 1995);
United States v. Stewart, 65 F.3d 918, 928 (11th Cir. 1995);
United States v. Ramey, 24 F.3d 602, 610 (4th Cir. 1994); cf.
Blacharski v. United States, 215 F.3d 792, 794 (7th Cir.
2000) (examining § 844(h)(1) as applied to the use of
explosives).
Because Hartbarger and Hayward relied on the § 241
conspiracy charges as the predicate felony, they do not di-
rectly answer the question of the appropriateness of the
application of § 844(h)(1) to § 3631, see Hartbarger, 148
F.3d at 786 n.8, which, unlike § 241, specifies greater
punishment if fire is used:
Whoever, whether or not acting under color of law,
by force or threat of force willfully injures, intim-
idates or interferes with, or attempts to injure, in-
timidate or interfere with—
(a) any person because of his race . . .
and because he is or has been selling, pur-
chasing, renting, financing, occupying, or
contracting or negotiating for the sale,
purchase, rental, financing or occupation of
any dwelling . . .
shall be fined under title 18 or imprisoned not more
than one year, or both; and if bodily injury results
from the acts committed in violation of this section
or if such acts include the use, attempted use, or
threatened use of a dangerous weapon, explosives, or
6 No. 00-3400
fire shall be fined under title 18 or imprisoned not
more than ten years, or both. . . .
42 U.S.C. § 3631 (emphasis added). Colvin argues that
when the underlying offense already contains an enhanced
punishment for the use of fire, the Supreme Court’s decision
in Busic v. United States, 446 U.S. 398 (1980), controls.
In Busic, the Court, interpreting an earlier version of 18
U.S.C. § 924(c) (which imposed a mandatory consecutive
punishment for using a firearm to commit a felony), held
that language such as “any felony,” “shall [be] in addition
to,” and “shall not run concurrently” did not sufficiently
express Congress’ intent so as to override the ordinary
presumption that Congress did not enact two statutes pro-
scribing the same offense. Busic, 446 U.S. at 405; see
also Simpson v. United States, 435 U.S. 6, 12-13 (1978). The
Court reasoned that these phrases did not make clear how
Congress “intended to mesh the new enhancement scheme
with analogous provisions in pre-existing statutes defining
federal crimes.” Busic, 446 U.S. at 405.
After the Supreme Court’s decision in Busic, Congress
amended § 924(c) to ensure that the enhancement is avail-
able even when the underlying felony already provides for
enhanced punishment, specifying that the predicate offense
includes those that “ ‘provide[] for an enhanced punishment
if committed by the use of a deadly or dangerous weapon or
device.’ ” See United States v. Gonzales, 520 U.S. 1, 10-11
(1997) (quoting Comprehensive Crime Control Act of 1984,
Pub. L. No. 98-473, § 1005(a), 98 Stat. 2138-2139). After the
statute was amended, when the Court returned to the
question of Congress’ intent in Gonzales, it saw less ambi-
guity in the sort of language that it had found wanting in
Busic. See id. at 10. In Gonzales, the Court rejected the
defendant’s assertion that § 924(c)’s requirement that the
sentence run consecutively to “any other term of imprison-
No. 00-3400 7
ment” should be read to apply only to federal, and not state,
prison terms, noting that the statute “speaks of ‘any term
of imprisonment’ without limitation.” Id. at 9. Although
Gonzales did not involve a challenge under double-jeopardy
principles, the Court concluded that, with respect to the
double-enhancement issue in Busic, the 1984 amendment
eliminated any ambiguities about Congress’ intent: “Con-
gress made clear its desire to run § 924(c) enhancements
consecutively to all other prison terms, regardless of
whether they were imposed under firearms enhancement
statutes similar to 924(c).” Id. at 10; see also Hanford, 39
F.3d at 734-35. And even though the amended language did
not specify that state terms were not excluded, it reinforced
the Court’s conclusion that the breadth of the language left
no room to speculate about any such intended exception.
Gonzales, 520 U.S. at 10-11.
We believe that the language added by a 1988 amend-
ment to § 844(h)(1), like the 1984 amendment to § 924(c)
considered in Gonzales, eliminates any doubt about whether
Congress intended to impose cumulative punishment when
applied to statutes containing an enhanced punishment for
the use of fire. The 1988 amendment to § 844(h)(1) inserted,
after “any felony,” the same language Congress used when
it amended § 924(c) to overcome the result in Busic:
“including a felony which provides for an enhanced punish-
ment if committed by the use of a deadly or dangerous
weapon or device . . . .” Anti-Drug Abuse Amendments Act
of 1988, Pub. L. No. 100-690, Title VI, § 6474(b), 102 Stat.
4379, 4380; compare Comprehensive Crime Control Act of
1984, Pub. L. No. 98-473, Title II, § 1005(a) (amending §
924(c)) (“including a crime of violence which provides for an
enhanced punishment if committed by the use of a deadly
or dangerous weapon or device”).
Colvin finds it significant that this new language specifies
the application of § 844(h)(1) to offenses that carry an
8 No. 00-3400
enhancement for the use of “a deadly or dangerous weapon
or device,” but does not mention the use of fire. As a matter
of statutory construction, however, “including” usually
signals illustration, not exhaustion. See, e.g., Coleman v.
United States, 318 F.3d 754, 760 (7th Cir. 2003);
Hernandez-Mancilla v. I.N.S., 246 F.3d 1002, 1008 (7th Cir.
2001); Richardson v. Nat’l City Bank of Evansville, 141 F.3d
1228, 1232 (7th Cir. 1998). Furthermore, we think fire,
under the most straightforward reading of the statute, is
encompassed within the phrase “deadly or dangerous
weapon or device.” As the Tenth Circuit observed, the new
clause also omits any mention of explosives, see United
States v. Grassie, 237 F.3d 1199, 1214 (10th Cir. 2001), and
because Congress switched to different language in this
clause, we cannot infer that its failure to repeat the word
“fire” is any more significant than its failure to repeat the
word “explosive.” Instead, we agree with the Tenth Circuit
that the structure of the statute suggests that Congress
intended to treat fires and explosives as interchangeable:
By pairing fire with explosives in § 844(h)(1),
Congress clearly placed these weapons in parity,
and signaled its view that the commission of fel-
onies by these means constitutes the use of a deadly
or dangerous weapon or device. . . . It is irrational
to view § 844(h)(1) as first explicitly linking fire and
explosives for additional punishment when used in
committing any felony then, sub silentio, delinking
fire from that pairing for purposes of the cumula-
tive punishment clause which refers expansively to
deadly or dangerous weapons or devices.
Id. at 1215. And the circumstances of the amendment—
adding the same language that was added to § 924(c) in
response to Busic—suggest that Congress intended, not
to draw a distinction between fire and explosives, but to
overcome the Court’s uncertainty about the intended appli-
No. 00-3400 9
cation of enhanced punishment to offenses already contain-
ing similar enhancements.
Colvin asserts that the Tenth Circuit’s opinion in Grassie
is distinguishable because in that case, fire was used to
destroy a building, and in this case, it was used for “sym-
bolic” purposes. It makes sense, according to Colvin, for
Congress to limit the use of cumulative punishment under
§ 844(h)(1) to the most “serious” cases, which Colvin asserts
is those cases in which fire was intended to be used, and in
fact was used, as a weapon. Colvin’s effort to distinguish
Grassie does not stand up to scrutiny. Fire was used in
Grassie as a weapon of destruction and in this case as a
weapon of intimidation, and there is nothing in § 844(h)(1)
that suggests that an intent to cause physical harm is at all
relevant. Furthermore, “deadly” and “dangerous” ordinarily
refer not to the actual harm that results, but to the poten-
tial or risk of serious harm. An instrumentality may be
dangerous even though, in a particular case, serious harm
was not intended and was in fact avoided. As with explo-
sives, the fact that the fire used to commit the felony did
not cause physical harm, and was not intended to, does not
negate the potential for harm suggested by the phrase
“deadly or dangerous weapon or device.”1
As Colvin points out, however, § 3631 is a felony only if
fire, explosives, or a dangerous weapon is used (or if there
1
As we explained in Hayward, the incidental use of fire does not
fall within § 844(h)(1)’s ambit. See 6 F.3d at 1246. So the thief who
uses a cigarette lighter to illuminate a keyhole does not use fire
to commit the burglary but merely to facilitate its commission. Id.By contrast, a defrauder who sets fire to his business to collect
insurance proceeds uses fire to commit his crime. See United
States v. Ruiz, 105 F.3d 1492, 1503-04 (1st Cir. 1997), cited with
approval in United States v. Zendeli, 180 F.3d 879, 885 (7th Cir.
1999).
10 No. 00-3400
are other specified aggravating circumstances not relevant
here). This raises the question whether the reference to
“any felony” in the opening sentence of § 844(h)(1) requires
that the predicate offense be a felony without regard to the
conduct signaled out for additional punishment. If so, then
§ 844(h)(1) would not apply to § 3631 because, without the
use of fire (or a dangerous weapon or explosives), the un-
derlying offense is a misdemeanor. This reading, however,
is inconsistent with the result in Grassie, which, like this
case, involved the application of § 844(h)(1) to a statute that
describes both a misdemeanor and, if fire, dangerous
weapons, or explosives are used, a felony. See Grassie, 237
F.3d at 1213; 18 U.S.C. § 247(d)(3) & (4). Furthermore,
§ 3631, we think, describes separate offenses, and not one
offense with varying punishments, cf. Castillo v. United
States, 530 U.S. 120 (2000); Jones v. United States, 526 U.S.
227 (1999), and that is how it was understood at trial.2 The
offense that Colvin was convicted of was the aggravated,
felony offense, and that is the offense to which “any felony”
in the opening sentence of § 844(h)(1) refers. Even though
this felony punishes the use of fire, the 1988 amendment to
§ 844(h)(1) makes clear that Congress intended separate
punishment under § 844(h)(1). Cf. Gonzales, 520 U.S. at 11.
Any narrower reading of the language of § 844(h)(1) would
be difficult to reconcile with the Supreme Court’s expansive
reading in Gonzales of similar language in § 924(c) and its
holding that the 1984 amendment to that statute foreclosed
any argument about intended exceptions. See id.3
2
The jury was instructed that in order to convict Colvin on the
§ 3631 charges, it had to find that his “conduct involved the use or
attempted use of fire.”
3
Because we believe the statute is clear, we have no occasion to
apply the “same elements” rule of construction set forth in
(continued...)
No. 00-3400 11
The punishment for the use of fire in § 844(h)(1), when
applied in conjunction with a felony already punishing the
use of fire, is severe, but we see no adequate reason to
conclude that Congress intended that fire be treated dif-
ferently for purposes of § 844(h)(1) than explosives or other
dangerous weapons. Like § 924(c), § 844(h)(1) was designed
to discourage offenders from choosing particularly danger-
ous means of accomplishing their objectives, and Congress
has made clear that those who do are subject to punishment
under § 844(h)(1) in addition to any enhanced punishment
imposed for the underlying felony. We therefore reject
Colvin’s arguments that the prosecution and punishment
under § 3631 and § 844(h)(1) violate the Double Jeopardy
Clause.
2. 18 U.S.C. § 241 as predicate felony.
Colvin argues that it makes no sense to speak of using
fire to commit a conspiracy under 18 U.S.C. § 241; the § 241
offense is the agreement, and one cannot use fire to form an
agreement unless, for example, the conspirators “communi-
cated across the Mississippi River by smoke signals or by
hanging a lantern in a belfry.” See United States v. Corona,
108 F.3d 565, 573 (5th Cir. 1997).
The government points out that we have approved the use
of § 241 to support a conviction under § 844(h)(1). See
Hartbarger, 148 F.3d at 785; Hayward, 6 F.3d at 1246. Our
earlier opinions, however, did not address the argument
Colvin raises here. See Hayward, 6 F.3d at 1249 n.9 (noting,
but declining to address, the argument). The government
further asserts that the conspirators’ use of fire in this case
(...continued)
Blockburger v. United States, 284 U.S. 299, 304 (1932). See
Missouri v. Hunter, 459 U.S. 359, 367 (1983).
12 No. 00-3400
was an overt act in furtherance of their agreement and that
this use of fire—to commit an overt act—is sufficient for
application of § 844(h)(1). The problem with the govern-
ment’s argument is that § 241 does not specify an overt-act
requirement and the Supreme Court has never inferred
such a requirement when the statute did not specify one.
See United States v. Shabani, 513 U.S. 10, 13-14 (1994);
Singer v. United States, 323 U.S. 338, 340 (1945); Nash v.
United States, 229 U.S. 373, 378 (1913). In Shabani, the
Court, considering the drug conspiracy statute, 21 U.S.C.
§ 846, noted that it was passed against the background of
the general conspiracy statute, which requires an overt act,
and the Sherman Act, which does not. Compare 18 U.S.C.
§ 371, with 15 U.S.C. § 1. The Court’s earlier opinions
interpreting conspiracy statutes “ ‘g[a]ve Congress a
formulary: by choosing a text modeled on § 371, it gets an
overt-act requirement; by choosing a text modeled on the
Sherman Act, 15 U.S.C. § 1, it dispenses with such a
requirement.’ ” Shabani, 513 U.S. at 14 (quoting United
States v. Sassi, 966 F.2d 283, 284 (7th Cir. 1992)). The
reasoning in Shabani and our opinion in Sassi apply with
equal force here, and we therefore agree with those circuits
that have held that Shabani compels a conclusion that an
overt act is not required under § 241. See United States v.
Whitney, 229 F.3d 1296, 1301 (10th Cir. 2000); United
States v. Crochiere, 129 F.3d 233, 237 (1st Cir. 1997); see
also United States v. Skillman, 922 F.2d 1370, 1375-76 (9th
Cir. 1991); United States v. Morado, 454 F.2d 167, 169 (5th
Cir. 1972).4 Because the conspiracy offense is the agreement
4
Later cases from the Fifth Circuit say that an overt act is re-
quired for § 241, but those cases were decided before Shabani. See
United States v. Greer, 939 F.2d 1076, 1099 (5th Cir. 1991); United
States v. McKenzie, 768 F.2d 602, 606 (5th Cir. 1985); United
States v. Kimble, 719 F.2d 1253, 1256 (5th Cir. 1983). The Sixth
(continued...)
No. 00-3400 13
alone, and because fire was not used in this case to form
that agreement, fire could not have been used to commit the
§ 241 conspiracy. We therefore conclude that the § 241
offense cannot support Colvin’s § 844(h)(1) conviction for
using fire to commit a felony, and overrule Hartbarger, 148
F.3d at 777, and Hayward, 6 F.3d at 1241, to the extent
they are inconsistent with this opinion.
3. The jury instructions.
The jury was instructed that to convict under § 844(h)(1),
it was required to find that Colvin intentionally used fire to
commit a federal felony, and that it could consider Colvin’s
guilt on the § 844(h)(1) charge if it found him guilty under
either § 3631 or § 241. Colvin argues that if one or the other
predicate felony is illegitimate, then the § 844 conviction
cannot stand because we cannot tell on which felony the
jury relied. “Usually, when a jury enters a general verdict
of guilty and the verdict may have rested on an invalid
ground, the appellate court will reverse the verdict because
it is impossible to determine whether the verdict rested on
a proper or improper ground.” United States v. McKinney,
954 F.2d 471, 475 (7th Cir. 1992); see also Yates v. United
States, 354 U.S. 298, 312 (1957) (“[A] verdict [must be] set
aside in cases where the verdict is supportable on one
ground, but not another, and it is impossible to tell which
ground the jury selected.”); Griffin v. United States, 502
U.S. 46, 59 (1991) (limiting Yates to cases in which one of
the grounds is legally, not merely factually, inadequate).
Colvin asserts that his § 844(h)(1) conviction must be
reversed because it might have been based on § 241.
(...continued)
Circuit has also stated, in dicta, and without reference to
Shabani, that an overt act is required under § 241. See United
States v. Brown, 49 F.3d 1162, 1165 (6th Cir. 1995).
14 No. 00-3400
As Colvin concedes, however, he failed to object to the
instructions at trial, so our review is for plain error. See
McKinney, 954 F.2d at 476. This standard requires
“(1) error, (2) that is plain, and (3) that affects substantial
rights. . . . If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error,
but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
Johnson v. United States, 520 U.S. 461, 467 (1997) (internal
quotations and citations omitted); United States v. Nance,
236 F.3d 820, 824 (7th Cir. 2000). The burden of establish-
ing that the error affected substantial rights— that the
outcome probably would have been different without the
error—is on the defendant. United States v. Olano, 507 U.S.
725, 734 (1993). In this context, to warrant reversal under
plain error review, Colvin must show that the jury probably
convicted him on the § 844(h)(1) charge based on the § 241
conspiracy alone. See McKinney, 954 F.2d at 476 (holding
that there was no plain error when it was unlikely that the
jury would have convicted on the impermissible ground);
United States v. Turcks, 41 F.3d 893, 899 (3d Cir. 1994)
(same); see also United States v. Lindsey, 123 F.3d 978, 985-
86 (7th Cir. 1997) (reversal not warranted when the record
plainly supported a permissible theory).
We do not see how the jury could have convicted Colvin of
using fire to commit the § 241 conspiracy and not the § 3631
felony. The jury was instructed that, in order to convict
Colvin on the § 3631 felony charges, it had to find that the
intimidation “involved the use or attempted use of fire.”
Colvin has pointed to no evidence of his attempted use of
fire or evidence that would otherwise have supported a
conviction under § 3631 without a finding that he used fire
to commit that offense. If we assume that the jury correctly
followed the instructions, and we do, see United States v.
Adkins, 274 F.3d 444, 452 (7th Cir. 2001), it could not
No. 00-3400 15
conclude that Colvin used fire to interfere with housing
rights under § 3631 and at the same time, for purposes of
§ 844(h)(1), conclude that he did not use fire to commit the
§ 3631 felony. Because it is highly unlikely that the jury
convicted Colvin under § 844(h)(1) based on the § 241
conspiracy alone, he has not established plain error war-
ranting reversal.
B. Using or Carrying a Firearm (18 U.S.C. § 924(c))
The district court imposed a ten-year sentence under 18
U.S.C. § 924(c)(1) for Colvin’s using or carrying a semiauto-
matic assault weapon during and in relation to the cross
burning. Under the current version of § 924(c)(1), firearm
type is a sentencing factor, which means that it need not be
submitted to the jury. United States v. Sandoval, 241 F.3d
549, 551 (7th Cir. 2001). Colvin, however, was convicted
under an earlier version of § 924(c)(1) that created separate
crimes based on the type of weapon used, see Castillo v.
United States, 530 U.S. 120 (2000), and therefore the
district court erred in not submitting the firearm type to the
jury.
Once again, however, because Colvin did not object to this
error below, we review for plain error, and under this
standard, Colvin must show that no reasonable jury could
have found beyond a reasonable doubt that the firearm he
used or carried was a semiautomatic rifle and that a mis-
carriage of justice would result if we failed to notice the
error. See Olano, 507 U.S. at 734; United States v. Pena-
Lora, 225 F.3d 17, 31 (1st Cir. 2000).
Colvin argues that no reasonable jury could have found
that the firearm he carried in his truck was a semiauto-
matic rifle. He claims that the evidence that he possessed
16 No. 00-3400
such a weapon was equivocal5 and that the jury might have
convicted on the § 924(c) charge based on the handgun held
by Funke while Mathis lit the fire. Even assuming that the
evidence was equivocal, we affirm because Colvin’s conces-
sions make clear that no miscarriage of justice resulted. He
conceded in his opening brief that he carried a firearm
while committing the cross burning: “the [firearm] re-
mained in the truck, with Colvin,” see United States v.
Mancillas, 183 F.3d 682, 708 (7th Cir. 1999) (holding that
an individual who knowingly possesses firearms in a vehicle
he accompanies “carries” a firearm for § 924(c) purposes),
and he conceded at sentencing that this firearm was a
semiautomatic assault weapon. In light of these conces-
sions, and Colvin’s failure to adequately preserve his claim
of error, we find no reason to disturb the ten-year sentence
under § 924(c)(1).
III. CONCLUSION
Although a cross burning is undeniably a serious crime
deserving of harsh punishment, there is room to question
the wisdom of the sort of mandatory statutory terms that
5
At trial, both of Colvin’s co-conspirators testified about the fire-
arm carried by Colvin during the cross burning. Mathis testified
that Colvin said he had to “get his SK” as the three were prepar-
ing to leave Colvin’s home on the night of the cross burning. Based
on his military experience, Mathis testified that “SK” is a
shorthand reference for a SKS assault rifle, a semiautomatic
assault weapon. Both Funke and Mathis testified that Colvin
carried the firearm in his truck that night. Finally, in a stolen
property affidavit filed after he participated in the cross burning,
Colvin stated that one of his stolen guns was an SKS folding stock
semiautomatic handgun. This same firearm was admitted at trial
and identified by both Funke and Mathis as at least similar to the
rifle carried in Colvin’s truck.
No. 00-3400 17
require a first-time offender to receive a sentence on par
with one for murder. Nevertheless, “it is not for the courts
to carve out statutory exceptions based on judicial percep-
tions of good sentencing policy.” Gonzales, 520 U.S. at 10;
see also Hayward, 6 F.3d at 1246 n.6 (“ ‘[T]he remedy for
any dissatisfaction with the results in [this case] lies with
Congress and not with this Court.’ ”) (quoting Griffin v.
Oceanic Contractors, Inc., 458 U.S. 564, 576 (1982)).
We trust, however, that prosecutors exercise the power
afforded to them by these sorts of statutes with an eye
toward justice, mindful of the discretion that is essential to
the proper functioning of the criminal justice system. See
United States v. Zendeli, 180 F.3d 879, 886-87 (7th Cir.
1999).
Because we find no error warranting reversal, the judg-
ment of the district court is AFFIRMED.
RIPPLE, Circuit Judge, with whom MANION, KANNE,
ROVNER, and EVANS, Circuit Judges, join, dissenting in
part. This case presents an issue of statutory construction
that this court previously had reserved explicitly in United
States v. Hartbarger, 148 F.3d 777, 785 n.8 (7th Cir. 1998).
In a thoughtful opinion, my colleagues take the view that a
conviction for cross-burning under 42 U.S.C. § 3631 can
serve as a predicate felony for application of 18 U.S.C.
§ 844(h)(1). Because I believe that this interpretation is
18 No. 00-3400
contrary to the plain text of the statutory provisions, I
respectfully part company from my colleagues on this
issue.1
I begin with a point of agreement between my colleagues
and myself. It is quite clear that Congress intended that
§ 844(h)(1) be given a broad reading. The text of the statute
requires its application, and the consequent imposition of a
consecutive sentence, on a person who “uses fire or an
explosive to commit any felony.” 18 U.S.C. § 844(h)(1). To
emphasize its intended scope, the text makes clear that the
term “felony” includes any felony “which provides for an
enhanced punishment if committed by the use of a deadly
or dangerous weapon or device.” Id. § 844(h).
At this point, then, we must turn to § 3631 and determine
whether it can serve as a predicate for the operation of §
844(h)(1). Section 3631 proscribes a broad range of discrimi-
natory activity and, consequently, also prescribes a variety
of penalties that depend on Congress’ estimation of the
gravity of the particular criminal activity committed. The
baseline incarceration penalty is for a term of one year. See
42 U.S.C. § 3631. Only if bodily injury results or if the acts
include the use, attempted use or threatened use of a
dangerous weapon, explosives, or fire does the permitted
incarceration penalty rise above the one-year limitation. See
id. In short, Congress determined that the use of fire was a
factor that made the perpetrator a felon and deserving of a
greatly enhanced punishment.
We therefore are faced with the issue of whether
Congress, in enacting § 844(h)(1), intended to impose a
second enhancement for the same act—the use of fire. Here,
the plain text of the statute supplies the answer. Congress
1
On all other issues, I agree with the views set forth in the ma-
jority opinion.
No. 00-3400 19
explicitly determined that this enhancement was to be im-
posed on a person who used fire or an explosive to commit
a felony, “including a felony which provides for an enhanced
punishment if committed by the use of a deadly or danger-
ous weapon or device.” 18 U.S.C. § 844(h). Notably, Con-
gress did not include in this latter phrase felonies commit-
ted by the use of fire. This omission cannot be considered an
oversight. Congress clearly knows how to distinguish “fire”
from “dangerous weapon or device.” Indeed, the very portion
of § 3631 at issue in this case makes that distinction. The
natural reading of § 844(h)(1) is that, although Congress
wanted the enhanced penalty to apply when the felony
already had been increased because it involved a deadly or
dangerous weapon or device, it did not intend for this
enhancement to apply when the criminal activity was
caused by fire.
The language employed by Congress in the initial sen-
tence of § 844(h)(1) is also important. The statutory lan-
guage is aimed at a person who “uses fire or an explosive to
commit any felony which may be prosecuted in a court of
the United States.” 18 U.S.C. § 844(h)(1). This language is
most naturally read as requiring the enhancement when
fire is used in the commission of a crime whose felonious
nature is not dependent on the use of fire. Such a reading
would certainly be in keeping with Congress’ manifest
intent to increase the punishment when a crime is commit-
ted using a means—fire or an explosive—that increases
substantially the probability of death or injury. In the case
of acts in violation of § 3631, however, there is no pre-
existing felony. Rather, it is the use of fire that causes the
activity to be felonious. In short, Congress already has
provided for the increased dangerousness by the imposition
of the enhancement. In effect, § 3631 makes it a felony,
punishable by a maximum sentence of ten years, to intimi-
date a person on the grounds set forth in the statute
20 No. 00-3400
through the use of fire. That felony is committed only when
fire is used; intimidation without the fire (or another
implement named in the statute) is a misdemeanor offense.
Resort to the elements test enunciated in Blockburger v.
United States, 284 U.S. 299 (1932), is inappropriate in this
situation because the statutory language is clear. We must
remember that, even when the elements of the offenses are
different, Congress may have intended that cumulative
punishments were not desirable. See Whalen v. United
States, 445 U.S. 684, 693 n.7 (1980).
Reasonable people can differ in their estimation of the
wisdom of Congress in setting the penalties of § 3631. A
straightforward reading of the text of the two statutory
sections requires, however, that we hold that the enhance-
ment contained in § 844(h)(1) does not apply to the defen-
dant in this case.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-24-03