United States v. Graham
2012 U.S. App. LEXIS 17145
| 2d Cir. | 2012Background
- Graham discharged a 9‑mm pistol during extortion of Thompson; district court imposed 10‑year explosive and 10‑year firearm enhancements; the government sought §844(h)(1) explosive enhancement based on cartridge contents; court held cartridge not an “explosive” under §844(h)(1); Graham was convicted on Counts Five, Six, Ten, Eleven with Rule 29 motions denied; the panel reverses Count Eleven and remands for resentencing on affirmed counts; the appeal concerns whether §844(h)(1) applies to a single cartridge and the relation to §924(c).
- Statute at issue: §844(h) imposes 10 years for using an explosive to commit a felony, with nonconcurrent sentencing; §844(j) defines “explosive”; §924(c) imposes firearm enhancements in crimes of violence or drug trafficking.
- Court’s reasoning: cartridge not within §844(j)’s category of explosives despite containing gunpowder; “explosive” requires specific categories and quantities; treating a single cartridge as an explosive would create anomalous harsher penalties for minor, non-relational conduct.
- Graham’s theory and district court’s Rule 29 denial: argued §844(h) not intended to cover a commonplace firearm discharge; district court rejected the argument.
- Remand: Court reverses Count Eleven and remands for resentencing on affirmed counts; accompanying summary order dismisses other challenges to conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a single 9‑mm cartridge fall within §844(h)(1) as an “explosive”? | Graham: cartridge contains gunpowder and should be explosive | Government: cartridge falls within explosive when fired | No; cartridge not an explosive under §844(j) or §844(h) |
| If not, may Graham be punished under both §924(c)(1)(A)(iii) and §844(h)(1) for the same act? | Double jeopardy concerns; avoid double punishment for same act | Government: penalties operate independently; no intrusion on double jeopardy | Not reached; issue effectively reserved as the §844(h) enhancement does not apply. |
| Did the government’s interpretation create an anomalous result that Congress could not have intended? | Explosives enhancement would excessively punish minimal firearm use | Statutory structure supports enhancement | Yes; the construction is unreasonable; §844(h) does not apply to a single cartridge. |
Key Cases Cited
- United States v. Ressam, 553 U.S. 272 (U.S. 2008) (interprets relation between §844(h) and §924(c) amendments)
- United States v. Gelb, 700 F.2d 875 (2d Cir. 1983) (limits on what constitutes an explosive under §844(j))
- United States v. Lorence, 706 F.2d 512 (5th Cir. 1983) (classification of explosives and related conduct)
- United States v. Mazza-Alaluf, 621 F.3d 205 (2d Cir. 2010) (de novo review of §844(h) issue; statutory interpretation)
- United States v. Hepp, 656 F.2d 350 (8th Cir. 1981) (explosives definitions context)