In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3400

United States of America,

Plaintiff-Appellee,

v.

James G. Colvin,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 99 CR 158--S. Hugh Dillin, Judge.

Argued April 12, 2001--Decided January 17, 2002



  Before Easterbrook, Ripple, and Williams,
Circuit Judges.

  Williams, Circuit Judge. James Colvin
was convicted of three fire-related
felonies and of carrying a firearm in the
commission of a felony, all arising out
of his role in a cross-burning. Colvin
challenges his 18 U.S.C. sec. 844(h)(1)
conviction on double jeopardy grounds
but, in our view, the Double Jeopardy
Clause does not prevent the application
of sec. 844(h)(1) to fire-related
felonies because Congress clearly
intended the multiple punishment. Colvin
also asks us to vacate his 18 U.S.C. sec.
924(c) sentence for carrying a firearm in
the commission of a felony because the
district court failed to submit the
firearm type to the jury. However, he
failed to object below and cannot
withstand plain error review. Therefore,
we affirm.

I.   BACKGROUND

  Colvin and two of his acquaintances,
Travis Funke and Lee Mathis, constructed
a wooden cross in his garage. They doused
the cross with flammable liquids and
loaded it into Colvin’s truck. The three
then drove to the home of Luis Ortiz and
set up the cross in his 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 the two guns lying in the
truck, in case someone came out. After
some initial reluctance, Colvin handed
him a gun. Fortunately, no one came out
of the home and the guns were never used.

  Some time later, Colvin reported to the
local police that two of his guns had
been stolen from his truck, one of which
he claimed was an "SKS folding stock
semi-automatic handgun." By the time the
police responded to his report, Funke and
one of his co-workers had claimed
responsibility for the theft and returned
the guns to Colvin. After Colvin, Funke,
and Mathis were arrested for the cross-
burning, the government took these guns
into custody.

  Funke and Mathis entered into plea
agreements with the government and
received reduced sentences for agreeing
to testify against Colvin, who had
elected to go trial. At trial, the guns
confiscated from Colvin were entered into
evidence. He was ultimately convicted of:
(1) intimidation and interference with
the exercise of housing rights on the ba
sis of race (42 U.S.C. sec. 3631); (2)
conspiracy to threaten or intimidate
persons in the free exercise or enjoyment
of housing rights (18 U.S.C. sec. 241);
(3) use of fire in the commission of a
felony (18 U.S.C. sec. 844(h)(1)); and
(4) use or carrying of a firearm in the
commission of a felony (18 U.S.C. sec.
924(c)). The district court sentenced him
to 264 months’ imprisonment, including
two concurrent 24-month sentences on the
sec. 3631 and sec. 241 charges and two
120-month sentences on the sec. 844(h)(1)
and sec. 924(c) charges, both to run
consecutive to the sec. 3631 and sec. 241
sentences. He now challenges two of the
sentences imposed.

II. ANALYSIS
  Colvin first objects, on double jeopardy
grounds, to the imposition of a
consecutive sentence under 18 U.S.C. sec.
844(h)(1) for the use of fire in the
commission of a felony (here, either
substantive cross-burning under 42 U.S.C.
sec. 3631 or conspiracy to interfere with
housing rights under 18 U.S.C. sec. 241).
Because sec. 844(h)(1) clearly
expressesCongress’ intent to cumulatively
punish the felonious use of fire, there
is no double jeopardy violation. Second,
he challenges the district court’s
failure to submit the firearm type to the
jury. We agree that the failure to do so
was error, but do not believe the error
was plain error because no manifest
injustice resulted.

A. Fire-Related Felonies and 18 U.S.C.
sec. 844(h)(1)

  The Double Jeopardy Clause of the Fifth
Amendment 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 (1983). However, for multiple
sentences imposed in a single trial, "the
Double Jeopardy Clause does no more than
prevent the sentencing court from
prescribing greater punishment than the
legislature intended." Id.; see also
generally 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 the cumulative
punishment of fire-related felonies such
as cross-burning under 18 U.S.C. sec.
844(h)(1). See Hunter, 459 U.S. at 366-
67.

  We have previously held that Congress
intended for fire-related felonies to
serve as predicates for application of
the sec. 844(h)(1) enhancement, which
provides that "whoever uses fire . . . to
commit any felony . . . shall, in
addition to the punishment provided for
such felony, be sentenced to imprisonment
for 10 years . . . [not to] run
concurrently with any other term of
imprisonment." See Blacharski v. United
States, 215 F.3d 792 (7th Cir. 2000);
United States v. Hartbarger, 148 F.3d 777
(7th Cir. 1998); United States v.
Hayward, 6 F.3d 1241 (7th Cir. 1993). In
Hartbarger and Hayward, we held that the
"any felony" language alone expressed
Congress’ intent to reach fire-related
felonies. See Hartbarger, 148 F.3d at
785; Hayward, 6 F.3d at 1246. Our
decision in Blacharski rested on the "in
addition to" and "shall not run
concurrently" language./1

  Colvin argues, however, that the
language we relied upon in Hartbarger,
Hayward, and Blacharski does not clearly
express Congress’ intent to authorize the
multiple punishment of fire-related
felonies as required by the Supreme
Court’s decision in Busic v. United
States, 446 U.S. 398 (1980). The Busic
court, interpreting an analogous statute,
held that its "any felony," "shall [be]
in addition to," and "shall not run
concurrently" language was insufficiently
clear to override the presumption that
Congress did not enact two statutes
proscribing the same offense. Busic, 466
U.S. at 405 (interpreting 18 U.S.C. sec.
924(c)’s statutory enhancement for use of
a firearm in the commission of a felony);
see also Simpson v. United States, 435
U.S. 6, 12-13 (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, 466 U.S.
at 405.

  While Busic’s holding that Congress must
clearly express its intent to authorize
cumulative punishment is still good law,
see United States v. Gonzales, 520 U.S.
1, 10-11 (1997), the Court has apparently
retreated from its restrictive
interpretation of this sort of language.
In Gonzales, the Supreme Court was asked
whether the 18 U.S.C. sec. 924(c) phrase
"any other term of imprisonment" "mean[t]
what it sa[id]" and could not be limited
to some subset of prison sentences. Id.
at 5-6 (internal quotation marks and
citation omitted). The Court held that
this language clearly expressed Congress’
desire to run sec. 924(c) enhancements
consecutive to all prison terms, without
limitation. Id. at 10. Therefore, we
believe that our reliance on the breadth
of the phrase "any felony" in
interpreting sec. 844(h)(1) in Hartbarger
and Hayward is consistent with the
Supreme Court’s more recent
pronouncement. Accord Sicurella, 157 F.3d
at 179 (citing Gonzales).

  But even assuming that Hartbarger and
Hayward (and Blacharski) are inconsistent
with Supreme Court precedent, we believe
the "deadly or dangerous weapon or
device" language added by the 1988
amendment makes clear Congress’ intent to
authorize cumulative punishment of fire-
related felonies. The 1988 amendment
clarified that "any felony" "includ[es] a
felony which provides for an enhanced
punishment if committed by the use of a
deadly or dangerous weapon or device." As
we explained in Hayward, the incidental
use of fire does not fall within sec.
844(h)(1)’s ambit. See 6 F.3d at 1246. So
the thief who uses a cigarette lighter to
illuminate a keyhole does not use fire to
commit the crime of burglary, but merely
to facilitate commission. Id. By
contrast, a defrauder who sets fire to
his business to collect insurance
proceeds uses fire to commit his crime.
See United States v. Ruiz, 105 F.3d 1492,
1503-04 (1st Cir. 1997) cited with
approval in United States v. Zendeli, 180
F.3d 879, 885 (7th Cir. 1999). This use
of fire is inherently dangerous. See
United States v. Grassie, 237 F.3d 1199,
1215 (5th Cir. 2001).

  The dangerousness of fire when used to
commit a felony is evidenced in part by
the fact that the use of uncontained
gasoline, the accelerant used by many
arsonists (and probably here by Colvin,
Funke, and Mathis), is subject to federal
regulation to reduce the hazard to
persons and property arising from its
misuse. See 18 U.S.C. sec.sec. 842-43;
cf. United States v. Agrillo-Ladlad, 675
F.2d 905, 909 (7th Cir. 1982) (referring
to Congressional concern over the
difficulty in "controlling the malicious
use of . . . gasoline [and] other
flammable liquids."). And cross-burnings,
in particular, are dangerous. Indeed, it
is their violent character that so
effectively communicates their underlying
racist ideology. Cross-burnings also have
the serious potential to cause
significant property damage, even when
not so intended.

  Furthermore, the circumstances
surrounding the 1988 amendment support
our interpretation. Congress amended sec.
924(c) after the Supreme Court’s decision
in Busic to ensure that sec. 924(c)’s
enhancement is available even when the
underlying felony already provides for
enhanced punishment "if committed by the
use of a ’deadly or dangerous weapon or device.’"
Gonzales, 520 U.S. at 10 (citing
Comprehensive Crime Control Act of 1984,
P.L. 98-473, sec. 1005(a)); Handford, 39
F.3d at 734-35. The Supreme Court stated
in Gonzales that this language eliminated
the ambiguities it saw in the pre-
amendment version of sec. 924(c). Id.

  We see no reason to treat Congress’
amendment to sec. 844(h)(1) differently
than the Gonzales court treated the
amendment of sec. 924(c). Fire used in
the commission of a felony is no less
inherently deadly or dangerous than a
firearm. Cf. Grassie, 237 F.3d at 1215
("[B]y pairing fire with explosives in
sec. 844(h)(1), Congress clearly placed
these weapons in parity."). Actually,
fire has the potential to be much more
destructive and uncontrollable. A fire,
for example, may destroy an entire
building and those residing within it. A
firearm cannot. And (although we need not
resort to it because the statutory
language is clear) the legislative
history supports our analysis. See H.R.
Rep. No. 91-1549, 91st Cong., 2d Sess. at
70, reprinted in 1970 U.S.C.C.A.N. 4007,
4046 (stating that Congress enacted sec.
844(h)(1) to "carr[y] over . . . the
stringent provisions of the Gun Control
Act of 1968 relating to the use of
firearms and the unlawful carrying of
firearms to commit . . . a federal
felony").

  Reading the statute in this way comports
with the federal criminal sentencing
scheme. Cf. Stewart, 65 F.3d at 928 n. 2
(noting that this interpretation is
consistent with its resolution of the
similar language of sec. 924(c)); United
States v. Pospisil, 186 F.3d 1023, 1031
(8th Cir. 1999) (implicitly holding that
cross-burnings are "crimes of violence,"
and therefore subject to enhancement
under sec. 924(c)). Like sec. 924(c),
sec. 844(h)(1) was designed to discourage
people who choose to commit a felony with
a deadly or dangerous weapon from making
a certain weapon their weapon of choice.
See Simpson, 435 U.S. at 911 (discussing
the legislative design behind sec.
924(c)); H.R. Rep. No. 91-1549, 91st
Cong., 2d Sess. at 70, reprinted in 1970
U.S.C.C.A.N. 4007, 4046 (stating that
sec. 844(h)(1) was similarly designed).
Under sec. 844(h)(1), that weapon is
fire.

  Finally, even if we believed that the
statutory text was unclear, we would
reach the same result applying the "same
elements" rule of construction set forth
in Blockburger v. United States, 284 U.S.
299, 304 (1932). Applying this rule, we
conclude that Congress intended to
authorize cumulative punishment if each
offense contains an element the other
does not unless Congress expresses a
contrary intent. Zendeli, 180 F.3d at
886; United States v. Fiore, 821 F.2d
127, 131 (2d Cir. 1987). One of the
predicate offenses of which Colvin was
convicted--intimidation and interference
with the exercise of housing rights on
the basis of race (42 U.S.C. sec. 3631)--
requires proof of several elements in
addition to those elements required by
sec. 844(h)(1)./2 And, of course, there
is no clear indication in the legislative
history that Congress did not intend
cumulative punishment. Fiore, 821 F.2d at
131-32, 132 n. 6 (discussing legislative
history).

  For these reasons, we stand by our
holdings in Blacharski, Hartbarger, and
Hayward that 18 U.S.C. sec. 844(h)(1)
authorizes the cumulative punishment of
fire-related felonies. Colvin also argues
that 18 U.S.C. sec. 241 (conspiracy to
violate civil rights) may not serve as a
predicate felony for the application of
sec. 844(h)(1) because one cannot use
fire to form an agreement, relying on the
Fifth Circuit’s decision in United States
v. Corona, 108 F.3d 565 (5th Cir. 1997).
While we are inclined to agree with the
Fifth Circuit’s analysis, we leave
resolution of that issue for another day.
We rest our decision on the use of
substantive cross-burning, 42 U.S.C. sec.
3631, as the predicate felony.

B. Failure to Submit Firearm Type to
Jury

  The district court imposed a ten-year
sentence under 18 U.S.C. sec. 924(c)(1)
for Colvin’s carrying of a machine gun
during the commission of the cross-
burning. Under the current version of
sec. 924(c)(1), firearm type is a
sentencing factor, which means that it
need not be submitted to the jury. United
States v. Sandoval, 241 F.3d 549, 551
(7th Cir. 2001)./3 Colvin, however, was
convicted under an earlier version of
sec. 924(c)(1) that created a separate
crime for the use of a machine gun in the
commission of a felony. See Castillo v.
United States, 530 U.S. 120 (2000).
Therefore, it was error for the district
court not to submit the firearm type to
the jury. But under plain error review
(Colvin did not object below), Colvin
must also show that no reasonable jury
could have found beyond a reasonable
doubt that the firearm he used or carried
was a semiautomatic assault weapon. See
United States v. Olano, 507 U.S. 725, 734
(1993); United States v. Pena-Lora, 225
F.3d 17, 31 (1st Cir. 2000). Even then we
will not vacate his sentence unless our
refusal to do so would result in a
miscarriage of justice. See Olano, 507
U.S. at 736.

  With this standard in mind, we turn to
the evidence adduced at trial. Mathis
testified that Colvin said he had to "get
his SK" as the three were preparing to
leave Colvin’s home on the night of the
cross-burning. Based on his military
experience, Mathis testified that "SK" is
a shorthand reference for an SKS assault
rifle, a semiautomatic assault weapon.
Both Funke and Mathis testified that
Colvin carried the firearm in his truck
that night. Finally, in a stolen property
affidavit, Colvin stated that one of his
stolen guns was an SKS folding stock
semiautomatic handgun. This same firearm
was admitted at trial (government’s
exhibit 11) and identified by both Funke
and Mathis as at least similar to, if not
the same rifle carried in Colvin’s truck.

  Colvin argues that no reasonable jury
could have found that the firearm was a
semiautomatic rifle; at best, he argues,
the evidence shows that he carried a
semiautomatic handgun, and handguns are
not assault weapons. Even assuming that
he is correct, we affirm because Colvin’s
concessions make clear that no
miscarriage of justice resulted. He
conceded in his opening brief (p. 24)
that he carried a firearm while
committing the cross-burning: "the
[firearm] remained in the truck, with
Colvin." See United States v. Mancillas,
183 F.3d 682, 708 (7th Cir. 1999)
(holding that an individual who knowingly
possesses firearms in a vehicle he
accompanies "carries" a firearm for sec.
924(c) purposes). And defense counsel
conceded at sentencing that this firearm
was a semiautomatic assault weapon. In
light of these concessions, we see no
reason to vacate the district court’s
imposition of a ten-year sentence under
sec. 924(c)(1).

III.   CONCLUSION

  For these reasons, we AFFIRM Colvin’s
sentence.
FOOTNOTES

/1 These decisions are in accord with those of other
circuits. See, e.g., Sicurella v. United States,
157 F.3d 177, 179 (2d Cir. 1998) (relying on "any
other term of imprisonment" language); United
States v. Wildes, 120 F.3d 468, 470 (4th Cir.
1997) (relying on "any felony" language); United
States v. Stewart, 65 F.3d 918, 928 (11th Cir.
1995) (relying on "in addition to" language).

/2 "Whoever, whether or not acting under color of
law, by force or threat of force willfully in-
jures, intimidates or interferes with, or at-
tempts to injure, intimidate or interfere with .
. . any person because of his race . . . because
he . . . has been . . . occupying . . . any
dwelling . . . shall be fined under Title 18 or
imprisoned . . . not more than ten years, or both
. . . ." 42 U.S.C. sec. 3631(a).

/3 As we noted in Sandoval, the rule established by
Apprendi v. New Jersey, 530 U.S. 466 (2000)--that
any fact, other than a prior conviction, that
increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to
the jury and proven beyond a reasonable doubt--
does not apply to sec. 924(c)(1) convictions
because they all carry a statutory maximum of
life. Id.




  RIPPLE, Circuit Judge, dissenting in
part. This case presents an issue of
statutory construction that this court
previously had reserved explicitly in
United States v. Hartbarger, 148 F.3d
777, 785 n.8 (7th Cir. 1998). In a
thoughtful opinion, my colleagues take
the view that a conviction for cross-
burning under 42 U.S.C. sec. 3631 can
serve as a predicate felony for
application of 18 U.S.C. sec. 844(h)(l).
Because I believe that this
interpretation is contrary to the plain
text of the statutory provisions, I
respectfully part company from my
colleagues on this issue.

  I begin with a point of agreement
between my colleagues and myself. It is
quite clear that Congress intended that
sec. 844(h)(l) be given a broad reading.
The text of the statute requires its
application, and the consequent
imposition of a consecutive sentence, on
a person who "uses fire or an explosive
to commit any felony." 18 U.S.C. sec.
844(h)(l). To emphasize its intended
scope, the text makes clear that the term
"felony" includes any felony "which
provides for an enhanced punishment if
committed by the use of a deadly or
dangerous weapon or device." Id. sec.
844(h).

  At this point, then, we must turn to
sec. 3631 and determine whether it can
serve as a predicate for the operation of
sec. 844(h)(l). Section 3631 proscribes a
broad range of discriminatory activity
and, consequently, also prescribes a
variety of penalties that depend on
Congress’ estimation of the gravity of
the particular criminal activity
committed. The baseline incarceration
penalty is for a term of one year. See 42
U.S.C. sec. 3631. Only if bodily injury
results or if the acts include the use,
attempted use or threatened use of a
dangerous weapon, explosives, or fire
does the permitted incarceration penalty
rise above the one year limitation. See
id. In short, Congress determined that
the use of fire was a factor that made
the perpetrator a felon and deserving of
a greatly enhanced punishment.

  We therefore are faced with the issue of
whether Congress, in enacting sec.
844(h)(l), intended to impose a second
enhancement for the same act--the use of
fire. Here, the plain text of the statute
supplies the answer. Congress explicitly
determined that this enhancement was to
be imposed on a person who used fire or
an explosive to commit a felony,
"including a felony which provides for an
enhanced punishment if committed by the
use of a deadly or dangerous weapon or
device." 18 U.S.C. sec. 844(h). Notably,
Congress did not include in this latter
phrase felonies committed by the use of
fire. This omission cannot be considered
an oversight. Congress clearly knows how
to distinguish "fire" from "dangerous
weapon or device." Indeed, the very
portion of sec. 3631 at issue in this
case makes that distinction. The natural
reading of sec. 844(h)(l) is that,
although Congress wanted the enhanced
penalty to apply when the felony already
had been increased because it involved a
deadly or dangerous weapon or device, it
did not intend for this enhancement to
apply when the criminal activity was
caused by fire.
  The language employed by Congress in the
initial sentence of sec. 844(h)(l) is
also important. The statutory language is
aimed at a person who "uses fire or an
explosive to commit any felony which may
be prosecuted in a court of the United
States." 18 U.S.C. sec. 844(h)(l). This
language is most naturally read as
requiring the enhancement when fire is
used in the commission of a crime whose
felonious nature is not dependent on the
use of fire. Such a reading would
certainly be in keeping with Congress’
manifest intent to increase the
punishment when a crime is committed
using a means--fire or an explosive--that
increases substantially the probability
of death or injury. In the case of acts
in violation of sec. 3631, however, there
is no pre-existing felony. Rather, it is
the use of fire that causes the activity
to be felonious. In short, Congress
already has provided for the increased
dangerousness by the imposition of
theenhancement. In effect, sec. 3631
makes it a felony, punishable by a
maximum sentence of ten years, to
intimidate a person on the grounds set
forth in the statute through the use of
fire. That felony is committed only when
fire is used; intimidation without the
fire (or another implement named in the
statute) is a misdemeanor offense.

  Resort to the elements test enunciated
in Blockburger v. United States, 284 U.S.
299 (1932), is inappropriate in this
situation because the statutory language
is clear. We must remember that, even
when the elements of the offenses are
different, Congress may have intended
that cumulative punishments were not
desirable. See Whalen v. United States,
445 U.S. 684, 693 n.7 (1980).

  Reasonable people can differ in their
estimation of the wisdom of Congress in
setting the penalties of sec. 3631. A
straightforward reading of the text of
the two statutory sections requires,
however, that we hold that the
enhancement contained in sec. 844(h)(l)
does not apply to the defendant in this
case.
