United States v. James G. Colvin

Citations: 353 F.3d 569; 2003 U.S. App. LEXIS 26287; 2003 WL 23010241Docket: 00-3400

Court: Court of Appeals for the Seventh Circuit; December 24, 2003; Federal Appellate Court

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James Colvin was convicted for his involvement in a cross burning, receiving a 22-year sentence, with 20 years imposed under statutes requiring mandatory consecutive sentences. The appeal centers on the validity of his conviction and ten-year consecutive sentence under 18 U.S.C. 844(h)(1), which penalizes the use of fire during the commission of "any felony," specifically when the underlying offense is a violation of 42 U.S.C. 3631 concerning intimidation and interference with federal housing rights. The court affirmed that the conviction under 844(h)(1) stands, although it agreed that Colvin's conspiracy conviction under 18 U.S.C. 241 could not serve as the predicate for this charge.

Colvin was also convicted under 18 U.S.C. 924(c) for using a firearm during a crime of violence, which carried a mandatory consecutive ten-year sentence due to the use of a semiautomatic assault weapon. While the court noted that the district court should have presented the firearm type as an element to the jury, the issue was not raised during the trial, and no plain error was found that would necessitate reversal.

The background details reveal that Colvin, along with accomplices, planned and executed a cross burning outside the home of Luis Ortiz, mistakenly believing Ortiz was a rival for a mutual friend’s affections. After obtaining permission from their KKK superior, they built the cross and transported it to Ortiz's residence, where it was set alight. During the incident, firearms were present, but no shots were fired. Colvin's co-defendants entered plea agreements and testified against him, leading to his convictions for multiple charges, including intimidation and use of fire in the commission of a felony. The district court's sentencing included consecutive terms, which Colvin is appealing.

Colvin claims that his conviction under 18 U.S.C. § 844(h)(1) for using fire during the commission of a felony infringes on the Double Jeopardy Clause of the Fifth Amendment, as it is predicated on a felony under 42 U.S.C. § 3631, which includes enhanced penalties for fire usage. The Double Jeopardy Clause protects against multiple convictions for the same offense but allows for cumulative sentences in a single trial as long as they fall within legislative intent. The analysis focuses on whether Congress intended cumulative punishment under § 844(h)(1) for felonies that already impose enhanced penalties for fire use. 

The language of § 844(h)(1) stipulates that using fire or explosives in committing any felony, including those with enhancements for deadly weapons, results in an additional 10-year imprisonment, which does not run concurrently with other sentences. Previous cases, United States v. Hartbarger and United States v. Hayward, confirmed that the statute's language reflects Congress' intent to include fire-related felonies. However, those cases did not address the specific application of § 844(h)(1) to § 3631, which explicitly includes greater penalties for fire-related offenses. Section 3631 outlines penalties for injuring or intimidating individuals based on race, with increased sentences if bodily injury occurs or if fire or dangerous weapons are used.

Colvin asserts that the Supreme Court's ruling in Busic v. United States governs situations where an underlying offense includes an enhanced punishment for fire use. In Busic, the Court interpreted a prior version of 18 U.S.C. § 924(c), which mandated consecutive sentences for firearm use during felonies. The Court concluded that the statutory language did not clearly indicate Congressional intent to impose dual punishments for the same offense. Following Busic, Congress revised § 924(c) to clarify that enhancements apply even when the predicate offense already carries an enhanced penalty for using a dangerous weapon. In Gonzales v. United States, the Court found that the amended language addressed ambiguities present in Busic, affirming that the consecutive sentence requirement applied to all terms of imprisonment, including state sentences. Although Gonzales did not directly address double jeopardy, it underscored Congress's intent for cumulative punishments, as the revised language of § 924(c) left no ambiguity. Similarly, the 1988 amendment to 18 U.S.C. § 844(h)(1) added language mirroring that of the 1984 amendment to § 924(c), reinforcing Congress's intention to impose cumulative punishments for offenses with existing enhanced penalties for fire usage.

Colvin highlights that the revised language of 844(h)(1) applies to offenses involving a "deadly or dangerous weapon or device," explicitly omitting fire. However, according to established statutory interpretation principles, the term "including" suggests an illustrative rather than exhaustive list. Thus, fire is included under "deadly or dangerous weapon or device." The omission of explosives in the new clause further indicates that Congress intended to treat fire and explosives equivalently. This interpretation aligns with the Tenth Circuit's view that both should be considered interchangeable for enhanced punishment.

Colvin argues that the Tenth Circuit's ruling in Grassie, where fire was used destructively, differs from the current case, where fire was used symbolically. He contends that cumulative punishment under 844(h)(1) should be reserved for serious offenses involving intended harm. However, this distinction fails upon examination, as fire in both cases serves as a potential weapon, regardless of the specific intent or resultant harm. The terms "deadly" and "dangerous" pertain to the potential for harm rather than actual harm caused.

Additionally, Colvin notes that 3631 is a felony only when fire, explosives, or dangerous weapons are used, raising the question of whether 844(h)(1) applies to felonies irrespective of the specific conduct prompting additional punishment. This interpretation would exclude 3631 from 844(h)(1) applicability if fire is not used, contradicting the outcome in Grassie, where 844(h)(1) was applied to a statute that encompasses both misdemeanors and felonies depending on the use of fire, dangerous weapons, or explosives.

Section 3631 describes separate offenses rather than a single offense with varying penalties, as established by case law including Castillo v. United States and Jones v. United States. Colvin's conviction pertained to the aggravated felony offense, which corresponds to "any felony" mentioned in 844(h)(1). The 1988 amendment to 844(h)(1) indicates Congress's intent for separate punishments for offenses involving fire, analogous to explosives and other dangerous weapons. The court rejected Colvin's claims that prosecution under both 3631 and 844(h)(1) violates the Double Jeopardy Clause.

Colvin also contested the applicability of 18 U.S.C. 241 as a predicate felony, arguing that fire cannot be used to form a conspiracy. The government countered by referencing prior cases where 241 supported convictions under 844(h)(1). However, the court noted that previous rulings did not address Colvin’s specific argument. The government maintained that the use of fire constituted an overt act in furtherance of the conspiracy, but the court highlighted that 241 does not require an overt act, as supported by Supreme Court precedents such as in Shabani. Consequently, the court aligned with other circuits in concluding that no overt act is necessary under 241.

The conspiracy offense is based solely on the agreement, and since fire was not utilized to establish this agreement, it cannot support Colvin's conviction under 844(h)(1) for using fire to commit a felony. Consequently, prior cases Hartbarger and Hayward are overruled to the extent they are inconsistent with this conclusion. The jury was instructed that for a conviction under 844(h)(1), it must find Colvin intentionally used fire to commit a federal felony, considering either the 3631 or 241 charges. Colvin contends that if either charge is invalid, the 844 conviction cannot be upheld, as the jury’s reliance on an illegitimate felony would render the verdict uncertain. Typically, a general verdict is reversed if it may have rested on an invalid ground. However, Colvin failed to object to the jury instructions at trial, so the review is for plain error, requiring proof of a clear error affecting substantial rights. Colvin must demonstrate that the error likely influenced the verdict. The court finds it improbable that the jury would have convicted Colvin under 844(h)(1) based solely on the 241 conspiracy, as the instructions for the 3631 charges necessitated a finding of fire use. The jury could not reasonably convict him of using fire for 3631 while simultaneously concluding he did not use fire for that felony under 844(h)(1). Thus, Colvin has not met the burden of showing plain error that would warrant a reversal of his conviction.

Colvin received a ten-year sentence under 18 U.S.C. 924(c)(1) for using or carrying a semiautomatic assault weapon during a cross burning. The district court's decision was based on an earlier version of the statute that required the type of firearm to be submitted to the jury. Colvin did not object to this error at trial, leading to a plain error review standard, which requires him to demonstrate that no reasonable jury could have concluded he used a semiautomatic rifle and that failing to address this error would result in a miscarriage of justice. Colvin argued that the evidence was unclear regarding the weapon he carried, suggesting that the jury might have convicted him based on another person's handgun. However, he conceded that he carried a firearm during the incident and acknowledged that the firearm was a semiautomatic assault weapon, which aligned with prior case law establishing that possession of firearms in a vehicle constitutes carrying under 924(c). Given these concessions and the lack of preserved error, the court found no justification to overturn the ten-year sentence.

The court acknowledged the harshness of mandatory sentences for first-time offenders, noting that any changes to such statutory terms should come from Congress, not the judiciary. It emphasized the importance of prosecutorial discretion in the application of these statutes, ultimately affirming the district court's judgment.

To convict Colvin on the 3631 charges, the jury needed to determine if his conduct involved the use or attempted use of fire. The statute's clarity negates the necessity of applying the 'same elements' rule from Blockburger v. United States. Previous Fifth Circuit cases, decided before Shabani, indicated that an overt act is required for 241, while the Sixth Circuit has also suggested, albeit in dicta and without reference to Shabani, that an overt act is necessary under 241. At trial, co-conspirators testified that Colvin carried a firearm during the cross burning, specifically mentioning an SKS assault rifle. Testimony confirmed he referred to the firearm as 'SK', and an affidavit linked him to a stolen SKS semiautomatic handgun, which was identified at trial as similar to the rifle he had. 

In a dissenting opinion, Circuit Judge Ripple disagrees with colleagues regarding the interpretation of 42 U.S.C. § 3631 as a predicate felony for 18 U.S.C. § 844(h)(1). While agreeing that 844(h)(1) should be broadly interpreted to include any felony involving the use of fire or explosives, Ripple contends that Congress did not intend for 3631 to serve as a basis for double enhancement for the same act of fire use. Section 3631 encompasses various discriminatory activities with escalating penalties based on the severity of the crime, with the potential for increased punishment specifically tied to the use of fire. The crux of the discussion focuses on whether Congress intended for a second enhancement under 844(h)(1) for the same action involving fire.

The statute clearly indicates that the enhancement under 18 U.S.C. 844(h) applies to individuals using fire or explosives in the commission of felonies but does not extend to felonies committed with fire alone. Congress intentionally omitted fire from the definition of "dangerous weapon or device," signifying a deliberate distinction. The language of 844(h)(1) implies that the enhancement is applicable when fire is used in a crime that is inherently felonious without depending on fire. In contrast, under 18 U.S.C. 3631, the use of fire is what renders the conduct a felony; intimidation without fire is merely a misdemeanor. The Blockburger test for determining whether cumulative punishments are permissible is not suitable here, as the statutory language is explicit. While opinions may vary about Congress's penalty structure in 3631, a straightforward interpretation of the statutes necessitates the conclusion that the enhancement in 844(h)(1) does not apply to this defendant. On all other matters, agreement with the majority opinion is noted.