US v. Quigley

• Decision Date: 19 March 1993
• Docket Number: No. 1:91:CR:146-02.,1:91:CR:146-02.
• Citation: 816 F. Supp. 1217
• Parties: UNITED STATES of America, Plaintiff, v. David James QUIGLEY, Defendant.
• Court: U.S. District Court — Western District of Michigan

816 F. Supp. 1217

UNITED STATES of America, Plaintiff, v. David James QUIGLEY, Defendant.

No. 1:91:CR:146-02.

United States District Court, W.D. Michigan.

March 19, 1993.

Timothy I. Miner, Grand Rapids, MI, for defendant.

Donald Daniels, John A. Smietanka, U.S. Atty., Grand Rapids, MI, for plaintiff.

OPINION

ENSLEN, District Judge.

The matter before the Court is the sentencing of defendant David Quigley. When Mr. Quigley was nineteen years of age, he and two other defendants assembled pipe bombs with timing devices and/or fuses. These pipe bombs were then placed under motor vehicles, each time at approximately 1:00 a.m., and detonated for the purpose of damaging or destroying the vehicles. On one occasion, Mr. Quigley picked up a bomb the defendants constructed and it detonated in his hand, injuring him and damaging his parents' home. One of the vehicles the defendants damaged was a station wagon used by a business to transport mail to and from the United States Post Office, rendering it a vehicle used in interstate commerce.

On April 20, 1992, Mr. Quigley was found guilty by jury verdict of Counts One through Nine of an original ten count indictment.¹ All of the counts concerned the creation, possession, and/or registration of an illegal firearm with the exception of Counts Four and Five, which contain the statutes at issue in this opinion. Count Four (Aiding and Abetting in the Detonation of a Vehicle) charged violation of 18 U.S.C. § 844(i), and Count Five (Aiding and Abetting in the Use, Possession and Carrying of a Destructive Device During the Commission of a Crime of Violence) charged violation of 18 U.S.C. § 924(c).

In accordance with the Sentencing Guidelines, Counts 1-4 and 6-9 were grouped, producing a sentencing range of 41-51 months. In addition, Count 5, 18 U.S.C. § 924(c), calls for a mandatory sentence of 30 years. Therefore, upon initial calculation, the sentencing range for malicious destruction of motor vehicles with a pipe bomb is between 33 years and 5 months and 34 years and 3 months. However, I have determined that Mr. Quigley may not be sentenced under 18 U.S.C. § 924(c). The relationship between 18 U.S.C. § 844(i) and 18 U.S.C. § 924(c) is an issue of first impression in the Sixth Circuit.²

The Statutes

18 U.S.C. § 844(i) states:

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both.....

It is important to note that while 844(i) contains an enhancement penalty if injuries or death result from the fire or explosion, it does not contain an "enhancement" for use of an explosive. The means of destruction, use of fire or an explosive, is defined as an element of the crime.

18 U.S.C. § 924(c)(1) states:

Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle, or short-barreled shotgun to imprisonment for ten years, and if the firearm is a machine gun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years.... Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence or the drug trafficking crime in which the firearm was used or carried. No person sentenced under this subsection shall be eligible for parole during the term of imprisonment herein.

§ 924(c)(3) defines "crime of violence" as a felony which has as an element of the use, attempted use, or threatened use of force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

§ 844(i) Is An Insufficient Predicate for § 924(c)

The first reason I believe that Mr. Quigley cannot be sentenced under § 924(c) in this case is based on no intrinsic failing of either § 844(i) or § 924(c). Instead, it is based on their precise relationship to one another in this case: that of predicate offense and compound offense. My contention is simply that these two particular statutes may not be juxtaposed.

Several circuits have held that § 924(c) authorizes cumulative punishment for crimes in which the use of a weapon provides an enhanced penalty, or in which it is not necessary to prove the use of a weapon in order to establish a violation of the statute. These cases further stand for the proposition that Congress' authorization of cumulative punishment in these circumstances is constitutional. E.g., United States v. Powell, 894 F.2d 895 (7th Cir.), cert. denied, 495 U.S. 939, 110 S.Ct. 2189, 109 L.Ed.2d 517 (1990) (drug trafficking); United States v. Lanzi, 933 F.2d 824 (10th Cir.1991) (bank robbery); United States v. Browne, 829 F.2d 760 (9th Cir.1987), cert. denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988) (bank robbery); United States v. Shavers, 820 F.2d 1375 (4th Cir.1987), aff'd after remand, 842 F.2d 1293 (4th Cir.1988) (bank robbery); United States v. York, 830 F.2d 885 (8th Cir.1987), cert. denied, 484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988) (bank robbery); United States v. Springfield, 829 F.2d 860 (9th Cir.1987) (involuntary manslaughter).

I do not question these holdings. However, none of the opinions cited above address the novel circumstance presented by this case: the interaction between § 924(c) and a statute which makes the use of a particular weapon an element of the underlying offense, such that if no weapon is used, there is no violation of the statute.

§ 924 clearly defines a crime separate from the underlying offense. Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). Therefore, an underlying crime such as § 844(i) is not a lesser included offense of § 924(c). Instead, the relationship between § 924(c) and its underlying offenses is that of compound offense and predicate offense.

§ 844(i) is not a proper predicate offense for § 924(c). Chief Justice Rehnquist explained why this permutation is impermissible when he used § 924(c) to illustrate a point concerning statutory construction and the rule of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), then Justice Rehnquist stated:

The Blockburger test, although useful in identifying statutes that defined greater and lesser included offenses in the traditional sense, is less satisfactory, and perhaps even misdirected, when applied to statutes defining `compound' and `predicate' offenses. Strictly speaking, two crimes do not stand in the relationship of greater and lesser included offenses unless proof of the greater necessarily entails proof of the lesser.... On the other hand, two statutes stand in the relationship of compound and predicate offenses when one statute incorporates several other offenses by reference and compounds those offenses if a certain additional element is present. To cite one example, 18 U.S.C. 924(c)(1) states that `whoever ... uses a firearm to commit any felony for which he may be prosecuted in a court of the United States ... shall ... be sentenced to a term of imprisonment for not less than one year nor more than ten years.' Clearly, any one of a plethora of felonies could serve as the predicate for a violation of § 924(c)(1).

Id. at 708-09, 100 S.Ct. at 1446-47 (Rehnquist, J., dissenting) (emphasis added). Therefore, according to Chief Justice Rehnquist, § 924(c) is a "compound" offense. Although many felonies may serve as its predicate, § 924(c) cannot compound predicate offenses unless an additional element is present. The additional element in the case of § 924(c) is a firearm, as is the case when the predicate offense is robbery or drug trafficking.

Therefore, while I agree that "in the case of § 924(c)(1) Congress made its intention explicit, stating unequivocally that the punishment for violation of that statute should be imposed `in addition to the punishment provided for the commission of the predicate felony'", Whalen, 445 U.S. at 709, 100 S.Ct. at 1447 (Rehnquist, J. dissenting), § 844(i) is not a proper predicate felony to be used in conjunction with § 924(c). In the case of § 844(i), § 924(c) adds no additional element: the use of an explosive is an element of the predicate offense. As a result, I conclude that § 924(c) may not be applied in order to compound a § 844(i) offense.

This holding is supported by the analysis of Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). In that case, the Court was "required ... to consider the relationship between substantive predicate offenses and a CCE continuing criminal enterprise statute, 21 U.S.C. § 848." Id. at 794-95, 105 S.Ct. at 2419. The Court first concluded that Congress intended CCE to be a separate offense, and that it intended to permit prosecution for both the predicate offenses and the CCE offense. It then went on to determine that a prosecution for a CCE offense after an earlier prosecution for a predicate offense does not violate the Double Jeopardy Clause...