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August 29, 2013

Does use of a thermal lance tool amount to using "fire" to trigger major mandatory sentence enhancement?

Thermal lanceThe question in the title of this post is the question that has split a panel of judges in US v. Thompson, No. 10-50381 (9th Cir. Aug. 29, 2013) (available here).   Here is how the 20-page majority opinion (per Judge Reinhardt) gets started:

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.

Here is how the 12-page dissent (per Judge Murguia) gets started:

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.

August 29, 2013 at 03:50 PM | Permalink


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I agree with the judgement of the dissent but for none of its stated reasons. In fact, adopting the dissent's reasoning is a cure worse than the disease. But ultimately I agree that in this specific case they are guilty of the enchantment. I suspect the majority wrote its opinion out of sheer frustration with the minority.

Posted by: Daniel | Aug 29, 2013 4:38:51 PM

I've never heard of a thermal lance before, but Reinhardt description of igniting oxygen is clearly incorrect. Judging from this abstract, it appears that the heat energy comes from an iron-oxygen combustion reaction. It's not the oxygen that is burning; it is the iron in the presence of pure oxygen. But it's still combustion, and combustion is fire.

Posted by: Kent Scheidegger | Aug 29, 2013 8:08:32 PM

In what way does the lance conform to the ordinary and common use definition of fire? My understanding is that the lance has metal rods that get ridiculously hot and that is what cuts. Under this theory any branding device is fire.

I agree with the majority. This simply doesn't meet the statute's terms. Whether Congress should amend it is a different question. I tend to think it should for consistency purposes (though I generally disagree with the enhancement in total), but it is pretty clear to me that the lance is not "fire."

Posted by: Matt | Aug 29, 2013 8:12:50 PM


I disagree with you assertion that as soon as there is combustion there is fire. Under that definition the use of a firearm is the use of fire. It simply doesn't comport with the ordinary definition of fire.

I've done a bit more reading on the lance and it seems that a stream of molten iron is shot out. This is closer than I had thought, but I still say it isn't fire. It is still just using hot metal. Hot enough that it is liquefied, but hot metal nonetheless. And I just don't see that as fire.

To me fire is the burning of a gas. Usually oxygen, but another gas can be used. A hot piece of metal even liquid metal is not what I'd consider fire.

Posted by: Matt | Aug 29, 2013 8:20:54 PM

"guilty of the enchantment"

Is this criminal?

Posted by: Joe | Aug 29, 2013 8:35:31 PM

Fire is combustion. Combustion is the combination of oxygen with almost any other substance. Oxygen is used by the body to break down complex organic carbohydrates and peptides.

Your honor, as witness for the state, the defendent had eaten a meal and was breathing at the time of the committed felony. He was therefore combusting materials to create energy to commit the felony. Where there is combustion, there is fire.

Ergo, an enhancement of 10 years (to be served consecutively) for using fire to commit a felony is applicable under 844(h)(1).

Lawmakers, politicians and DOJ lawyers are often such retards. However, I feel that I have given too many of them another GREAT IDEA.

Posted by: albeed | Aug 29, 2013 9:10:04 PM

Joe @ 8:35 PM:

Only in the presence of a Muggle or before the age of 17.

Posted by: albeed | Aug 29, 2013 10:22:38 PM

"Combustion is the combination of oxygen with almost any other substance."

No, that is oxidation.

Posted by: Kent Scheidegger | Aug 30, 2013 12:01:07 AM

The problem here Kent and Matt is the Congress had no intention of regulating a chemical reaction. The idea is absurd. The majority opinion is correct in pointing out that the dissent takes this absurdity to its ridiculous conclusion (the lighting of a match) but then fails to discuss what it is that Congress actually intends to regulate. What Congress intends to regulate is criminal behavior. This is true by the very definition on it being an enchantment (ohh, there's that typo again). There can be no enhancement if there is no crime. If one thinks about what the lance is intended to do, as opposed to what it is, it clearly functions in this case not as fire but as a _substitute_ for an explosive device. Using some type of plastic explosive is normally the way a safe cracker opens a safe, chiefly because fire (think welder's torch) burns paper and so is a no no. How else where they going to get the back of the ATM open, licking the steel off? So even though the statute doesn't specify "thermal lance" it clearly functions as a member of the same class of items that Congress did intend to outlaw.

A functional approach addresses the statute in a coherent way that avoids the inane debate over "how many matches must a crack addict light before it becomes a 'fire'?" that so occupied all the doltish judges in this case.

Posted by: Daniel | Aug 30, 2013 12:58:05 AM

well kent based on your ideal of "fire"

Guess i can dig up that old design i make back in the 70's and update it.

Uses magnetics to shoot a sliver of metal at about 1000ft per sec. using today's tech i can make it very very small and then sell it at $10,000 bucks each to every excon on earth. Since it HAS NO FIRE! therefore it's not a 'FIREARM"

Posted by: rodsmith | Aug 30, 2013 2:06:04 AM

Congress did not specify how "fire" is ignited or used. It only requires the use of fire to commit a federal felony. If the same intense flame and heat could be generated from striking a match and felons used a match to burn the ATMs, we'd have no difficulty saying they used fire. This case is indistinguishable from that hypothetical.

The majority looks for every way to avoid the enhancement. The dissent confronts the question squarely and correctly.

Posted by: M | Aug 30, 2013 2:21:37 AM

The majority opinion is correct. The minority opinion is incorrect.
The latter was tried, successfully, in the first half of the Twentieth Century.

A rogue judge deliberately rendered an injustice to me over fifty years ago with a punishment by analogy protocol.

My “offense” became forbidden by statute over ten months AFTER I did what I did.

The rogue judge died three days after the effective date of the statute which forbid my prior conduct.
Judge James E Horton’s 10:05 Central Time statement of 22 June 1933 was correct: “Social order is based on law, and its perpetuity on its fair and impartial administration. Deliberate injustice is more fatal to the one who imposes it than to the one on whom it is imposed. The victim may die quickly and his suffering cease, but the teachings of Chrisitanity [sic] and the uniform lesson of all history illustrate without exception that that its perpetrators not only pay the penalty themselves, but their children through endless generations....
Fortunately, the judge was single with no children so “fatal” ended with his death.

Docile Jim Brady, Columbus OH 43209
Nemo Me Impune Lacessit
Associate Member OACDL*
*My opinions are mine and not those of the Ohio Association of Criminal Defense Lawyers

Hate mail (no death threats, please) and directions for sending bottles or cases of Islay scotch may be directed to docilejimbrady@Safe-mail.net ☺

▼ By the way ▼

Nullem crimen, nulla poena sine lege


Posted by: Just Plain Jim | Aug 30, 2013 8:22:35 AM

Let me stand next to your fire. -- Jimi Hendrix

Posted by: Scott | Aug 30, 2013 10:19:15 AM

Even if the lance itself is not a use of fire according to the description at http://en.wikipedia.org/wiki/Thermal_lance it takes fire to get the lance started.

Posted by: Soronel Haetir | Aug 31, 2013 3:22:55 PM

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