United States v. Thompson

Using a thermal lance tool that uses extreme heat to cut through metal does not constitute “using fire” under 18 U.S.C. § 844(h)(1) and does not warrant a penalty enhancement.

Clinton Thompson, Samuel Eaton, and Tavrion Dawson (“Defendants”) were convicted of bank larceny and given enhanced sentences under 18 U.S.C. § 844(h)(1). This enhancement is for anyone who “uses fire to commit any felony” and imposes a ten-year mandatory consecutive sentence. Defendants used a thermal lance, which uses extreme heat to cut metal, to cut through the metal of an ATM machine. Defendants avoided any risk of fire and no fire occurred during the bank larceny. On appeal, the Ninth Circuit had to decide whether the use of a thermal lance tool constituted “using fire” to commit a felony for purposes of the sentence enhancement. A thermal lance tool is used to gouge, pierce, and cut metal using extreme heat, but the tool does create sparks and “flickering flame.” The panel concluded that the use of a thermal lance tool does not fall “within the ordinary, contemporary and common meaning of ‘uses fire’” because the thermal lance uses extreme heat, not fire, to cut through metal. The panel’s ordinary understanding of “fire” was “flames that burn in a sustained manner,” and burning by heat is not included in the common meaning of “uses fire.” The history, purpose, and context of this statue applies to harm that was directly caused by uses of fire and not to tools that are not designed to cause fire, like the thermal lance. The panel noted that reversing Defendants’ convictions would also be allowed under the rule of lenity. Defendants did not have fair warning that using the thermal lance would subject them to an additional penalty. No prior applications or the statute itself gave fair warning in this case. The panel concluded that the use of the thermal lance did not fall under the penalty enhancement statute’s scope. REVERSED, VACATED, and REMANDED.