                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 04-2651
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                v.

JOSEPH D. KONOPKA,
                                             Defendant-Appellant.
                         ____________
            Appeal from the United States District Court
               for the Eastern District of Wisconsin.
              No. 02-CR-87—Lynn Adelman, Judge.
                         ____________
        ARGUED APRIL 4, 2005—DECIDED MAY 31, 2005
                         ____________



  Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
  POSNER, Circuit Judge.         Between 1997 and 2001,
Joseph Konopka, alias Dr. Chaos, a self-styled supervillain,
together with accomplices (some recruited from the Web
site “Teens for Satan”), committed a series of criminal acts
apparently just for the hell of it—acts such as destroying
electrical and telecommunications facilities, disabling airline
navigation systems, setting fire to buildings, intercepting
electronic communications, and trafficking in counterfeit
goods. In the present litigation he pleaded guilty to a variety
of offenses, including both arson, in violation of 18 U.S.C.
2                                                 No. 04-2651

§ 844(i), for setting fire to a building in which sauerkraut
was being manufactured; and using fire to commit a federal
felony, in violation of 18 U.S.C. § 844(h). This latter section
provides, so far as bears on this case, that anyone who “uses
fire or an explosive to commit any felony which may be
prosecuted in a court of the United States . . . shall, in
addition to the punishment provided for such a felony, be
sentenced to imprisonment for 10 years.” Here the “any
felony” would have to be the torching of the sauerkraut
factory.
  Before sentencing, Konopka moved to withdraw his guilty
plea on the ground that Congress did not intend section 844(h)
to apply when the underlying felony (the “any felony” to
which the section refers) is arson. The district judge denied
the motion (and later sentenced the defendant to 20 years
and 10 months in prison) on the ground that Congress did
intend the section to apply; and this is the only ground on
which the government defends the judge’s ruling in this
court. It does not contend that the guilty plea waived the
defendant’s challenge to the 10-year section 844(h) add-on.
Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure
provides that “a defendant may withdraw a plea of guilty
or nolo contendere . . . after the court accepts the plea, but
before it imposes sentence if . . . the defendant can show a
fair and just reason for requesting the withdrawal.” Konopka
had a good reason. Even after sentencing, we note paren-
thetically, if “the State is precluded by the United States
Constitution from haling a defendant into court on a charge,
federal law requires that a conviction on that charge be set
aside even if the conviction was entered pursuant to a
counseled plea of guilty,” United States v. Menna, 423 U.S.
61, 62 n. 2 (1975) (per curiam); see United States v. Bell, 70
F.3d 495, 496 (7th Cir. 1995), provided that the constitutional
infirmity is apparent from the record, without need for
No. 04-2651                                                   3

further factual inquiry. United States v. Broce, 488 U.S. 563
(1989); Dawson v. United States, 77 F.3d 180, 183 n. 3 (7th Cir.
1996). Menna was a double jeopardy case, but this one is too,
even though there was no attempt to try the defendant a
second time; for the Supreme Court has ruled that the
double jeopardy clause also “prevent[s] the sentencing court
from prescribing greater punishment than the legislature
intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983); see
also United States v. McCarter, No. 04-1684, 2005 WL 1022983,
at *2 (7th Cir. Apr. 27, 2005).
   In any event, as we said, Konopka had a good reason for
asking for leave to withdraw his guilty plea. For why would
Congress want the use of fire to enhance the punishment for
using fire? Even the assistant U.S. attorney who argued the
appeal could not think of any reason for such a strange
result. He rested his case entirely on our decision in United
States v. Colvin, 353 F.3d 569 (7th Cir. 2003) (en banc), but it
is readily distinguishable. The underlying felony there was
intimidating people in the exercise of their federal housing
rights by means of fire, 42 U.S.C. § 3631, to wit the burning
of a cross in the front yard of a person’s home by members
of the Ku Klux Klan. We held that section 844(h) applied.
Cross burning, unlike arson, is not punished because fire is
dangerous, but because the burning of the cross is a method
of racist intimidation used by the Ku Klux Klan. United
States v. Hayward, 6 F.3d 1241, 1250 (7th Cir. 1993); S. Rep.
No. 149, 103d Cong., 1st Sess. 2 (1993); see Virginia v. Black,
538 U.S. 343, 343-44 (2003). Section 844(h) reflects the view
of Congress that fire (or the use of explosives, which is also
covered by the section) is especially dangerous because it can
so easily get out of hand and cause widespread destruction
and that therefore felonies effected by means of fire should
be punished more severely than felonies effected by other
means. United States v. Colvin, supra, 353 F.3d at 575; United
4                                                  No. 04-2651

States v. Patel, 370 F.3d 108, 115 (1st Cir. 2004); United States
v. Grassie, 237 F.3d 1199, 1215 (10th Cir. 2001). But the heavy
federal penalty for arson, see 18 U.S.C. § 844(i) (5 to 20 years
even if no one is injured), is based on precisely the same
idea— that fire is abnormally dangerous. United States v.
Zendeli, 180 F.3d 879, 880 (7th Cir. 1999); United States v.
Hicks, 106 F.3d 187, 192 (7th Cir. 1997). The policy of section
844(h) is not embodied in the cross-burning statute, but is in
the arson statute, so that the government’s position amounts
to arguing that in enacting that section Congress intended
to increase the sentence for arson by 10 years. There is no
indication of such an intention. The statute contemplates
some double enhancements, for the 10 years must be added
even to sentences for “a felony which provides for an
enhanced punishment if committed by the use of a deadly
or dangerous weapon or device.” See United States v. Colvin,
supra, 353 F.3d at 573. But arson is not such a felony.
  It seems, therefore, that the term “any felony” in section
844(h) means any felony other than arson and conspiracy to
commit arson. And so the cases hold, United States v.
Gardner, 211 F.3d 1049, 1056-57 (7th Cir. 2000); United States
v. Patel, supra, 370 F.3d at 115 n. 5; United States v. Corona,
108 F.3d 565, 571 (5th Cir. 1997); United States v. Karlic, 997
F.2d 564, 571 (9th Cir. 1993); see also United States v. Chaney,
559 F.2d 1094, 1096 (7th Cir. 1977), the Colvin case being as
we said distinguishable; and likewise Blacharski v. United
States, 215 F.3d 792 (7th Cir. 2000), on which the district
judge relied. Although there is some broad language in that
opinion (which does not cite any of the decisions we have
just cited) and one of the underlying felonies was indeed a
form of arson, at least one of the others (making an explo-
sive device, 26 U.S.C. § 5861(f)), was not, and so the section
844(h) add-on was proper. It was not here, and so the
defendant is entitled to withdraw his guilty plea. See United
No. 04-2651                                                 5

States v. Cook, No. 04-1923, 2005 WL 1022974, at *2 (7th Cir.
Apr. 29, 2005). The judgment is therefore vacated and the
case remanded.


A true Copy:
       Teste:

                          _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                    USCA-02-C-0072—5-31-05
