U.S. v. Colvin

• Decision Date: 24 December 2003
• Docket Number: No. 00-3400.,00-3400.
• Citation: 353 F.3d 569
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James G. COLVIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

353 F.3d 569

UNITED STATES of America, Plaintiff-Appellee, v. James G. COLVIN, Defendant-Appellant.

No. 00-3400.

United States Court of Appeals, Seventh Circuit.

Argued November 6, 2002.

Decided December 24, 2003.

Sarah E. Harrington (argued), Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for Plaintiff-Appellee.

Lauren Robel (argued), Indiana University, School of Law, Bloomington, IN, for Defendant-Appellant.

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 sustained when the predicate offense is a violation of 42 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 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 punishments. Funke was sentenced to 46 months' imprisonment 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 enjoyment 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. 18 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 offense. Missouri v. Hunter, 459 U.S. 359, 365, 103 S.Ct. 673 74 L.Ed.2d 535 (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 provides:

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 imposed 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 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 directly 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, intimidates or interferes with, or attempts to injure, intimidate or interfere with —

(a) any person because of his race ... and because he is or has been selling, purchasing, 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 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, 100 S.Ct. 1747, 64 L.Ed.2d 381 (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 proscribing the same offense. Busic, 446 U.S. at 405, 100 S.Ct. 1747; see also Simpson v. United States, 435 U.S. 6, 12-13, 98 S.Ct. 909, 55 L.Ed.2d 70 (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, 100 S.Ct. 1747.

After the Supreme Court's decision in Busic, Congress amended § 924(c) to ensure that the enhancement is available 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, 117 S.Ct. 1032, 137 L.Ed.2d 132 (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...