United States v. Terence Earl Davis

MICHAEL, Circuit Judge,

dissenting in part:

Terence Davis was convicted for firing several shots into an occupied house on a military base, see 18 U.S.C. § 1363 , but he was sentenced for “property damage by use of explosives,” USSG § 2K1.4. Sergeant Alvin York, the World War I sharpshooter who knew all about guns, would not have agreed with the majority that damage to a house caused by bullets fired from a handgun is “property damage by use of explosives.” A demolition worker who uses explosives every day would not agree with the majority either. It just doesn’t sound right to say that bullet holes in wood or brick are damage caused by explosives. Nor can the majority’s construction be saved by all of the definitions and cross-definitions in the guidelines and statutes. I usually agree with my col *222 leagues in the majority, but this time I must respectfully dissent on the guidelines issue. I agree with the rest of their opinion.

I.

“Property damage by use of explosives” has a plain, common sense meaning. Explosives blow things apart through the violent expansion of internal energy. See The Oxford Encyclopedic English Dictionary 493 (3d ed. 1996) (defining “explode” and “explosive”). The explosion and the physical (property) damage are contiguous. Shooting small caliber bullets into property is different. There is damage from the impact of the bullets, but it is not explosion damage. Simply put, bullet hole damage is damage by use of a gun, not damage by use of explosives. It is too much of a stretch to say anything else.

The official commentary to § 2K1.4 supports this plain reading of the guideline language. Application Note 3 defines “explosives” as follows: “ ‘Explosives,’ as used in the title of this guideline, includes any [1] explosive, [2] explosive material, or [3] destructive device.” USSG § 2K1.4 cmt. 3. The first two terms in the definition are repetitive and do not help us. However, the third term, “destructive device,” does add useful context because that term is defined in the general definitions section of the guidelines:

“Destructive device” means any article described in 26 U.S.C. § 5845 (f) (including an explosive, incendiary, or poison gas — (i) bomb, (ii) grenade, (iii) rocket having a propellant charge of more than four ounces, (iv) missile having an explosive or incendiary charge of more than one-quarter ounce, (v) mine, or (vi) device similar to any of the devices described in the preceding clauses).

USSG § 1B1.1 cmt. l(k). Davis’s .380 caliber handgun is not covered by any of the specific examples (bomb, grenade, etc.) in the guideline definition. The guideline definition, of course, incorporates “any article described in 26 U.S.C. § 5845 (f),” and that statute goes further and includes the following in its definition of “destructive device:”

any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes.

26 U.S.C: § 5845(f)(2). Thus, the guideline definition of “explosives,” insofar as it incorporates the statutory definition of “destructive device,” excludes small caliber handguns with a bore of one-half inch or less. Davis’s .380 caliber handgun is therefore excluded from the “destructive device” category of explosives.

The majority contends that Davis used explosives because the bullets he fired were propelled by a charge of gunpowder, which is an explosive. But in common parlance Davis used a gun, not gunpowder. The majority’s strained and overly technical read of the word “use” in “use of explosives” misses the basic intent of the guideline phrase. Again, it means the use of explosives to blow something apart. It does not mean the use of gunpowder to propel a bullet, as the majority argues. If the majority is right, then ramming a two-ton truck into a house would be property damage by use of explosives. It would be because the truck is propelled by the explosion of gasoline in the engine block just as a bullet is propelled by the explosion of gunpowder in a gun’s chamber. Thus, the majority’s construction lacks practical and predictable limits.

A scan through the guidelines reveals that there is a difference between using a gun and using explosives. Offenses involving explosives and offenses involving firearms are often treated separately. For example, § 2K1.3 covers the “Unlawful Receipt, Possession, or Transportation of *223 Explosive Materials” (emphasis added). A separate guideline, § 2K2.1, covers the “Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition” (emphasis added). If the term “explosives” included all guns, there would be no need for separate guidelines. Language in individual guidelines also differentiates between the use of explosives and the use of firearms. Section 2K2.4 is typical. It applies to “Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes.” See also USSG § 2Bl.l(c)(l) (referring to theft, receipt, possession, etc. of “a firearm, destructive device, explosive material, or controlled substance”) (emphasis added).

Common sense and the structure of the guidelines both dictate that use of a handgun and use of an explosive are different acts. Because Davis damaged property (an occupied dwelling) by using his handgun to shoot small caliber bullets into it, he should not be sentenced under § 2K1.4 for property damage by use of explosives.

II.

I recognize that the district judge struggled to find a guideline with a sentencing range long enough to match Davis’s crime. The problem is this: any guideline that fits neatly, such as § 2B1.3 (Property Damage or Destruction) or § 2A2.2 (Aggravated Assault), carries a lighter sentence. Nonetheless, we do a disservice to the guidelines system when we stretch the meaning of one guideline in order to increase the sentence to a level that appears to be deserved. A major purpose of the guidelines is to bring predictability to sentencing. The majority ignores that purpose today.

All would not be lost if Davis was sentenced under another guideline with a lower base offense level. In particular, an upward departure could be considered because Davis fired a semi-automatic weapon in the residential area of a military base. As a result, § 5K2.6 (Weapons and Dangerous Instrumentalities) or § 5K2.17 (High-Capacity, Semiautomatic Firearms) might apply. These guideline policy statements allow for a substantial upward departure when a gun is fired and its use endangers lives or increases the likelihood of death or injury. I do not know whether the district judge on resentencing would reach the original sentence of 170 months, but Davis’s original sentence should-still be vacated. The guidelines would be better served in the long run, and the process of guideline development could work the way Congress intended. The Sentencing Commission could study the matter and, if warranted, write a new guideline with punishment that takes better account of the seriousness of the crime Davis committed. See 28 U.S.C. § 994 (o).

I would remand for resentencing.