United States v. Graham

09-2819-cr
United States v. Graham

United States Court of Appeals
FOR THE SECOND CIRCUIT

August Term 2011

(Argued: October 20, 2011 Decided: August 15, 2012)

No. 09-2819-cr
_____________________________________

UNITED STATES OF AMERICA,
Appellee,

-v.-

LARONE GRAHAM, also known as ABGOD GRAHAM,
Defendant-Appellant.
_____________________________________

Before: CABRANES, LIVINGSTON, and CARNEY, Circuit Judges.

Defendant-Appellant Larone Graham, a/k/a Abgod Graham (“Graham”),
appeals from a June 17, 2009, judgment of the United States District Court for
the Eastern District of New York (Seybert, J.) convicting him, following a jury
trial, of conspiracy to affect commerce by robbery, affecting commerce by
robbery, conspiracy to affect commerce by extortion, and affecting commerce by
extortion, all in violation of the Hobbs Act, 18 U.S.C. § 1951; discharging a
firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii);
and using an explosive to commit a felony, in violation of 18 U.S.C. § 844(h)(1).
The district court sentenced Graham principally to a term of imprisonment of
600 months and five years of supervised release. Graham’s sentence included
two consecutive, mandatory 10-year terms, on the theory that his discharge of
a single bullet from a 9 millimeter semiautomatic pistol in furtherance of the
crime of extortion constituted both a violation of 18 U.S.C. § 924(c)(1)(A)(iii) and
a violation of 18 U.S.C. § 844(h)(1). On appeal, Graham argues that the
cartridge in his semiautomatic pistol did not constitute an “explosive” for
purposes of 18 U.S.C. § 844(h)(1), and therefore that his conviction under that
statute pursuant to Count Eleven of the Superseding Indictment must be
reversed. We agree. Accordingly, we REVERSE the district court’s judgment as
to Count Eleven, convicting Graham of a violation of 18 U.S.C. § 844(h)(1),
without reaching the other challenges that Graham makes as to Count Eleven.
In an accompanying summary order filed today, we reject Graham’s remaining
challenges to his conviction on the other counts and AFFIRM as to all remaining
counts. The matter is REMANDED for resentencing on these affirmed counts of
conviction.

DONNA R. NEWMAN, Buttermore Newman
Delanney & Foltz, LLP, New York, NY, for
Defendant-Appellant.

LARA TREINIS GATZ, Assistant United States
Attorney (Jo Ann M. Navickas, Assistant United
States Attorney, on the brief), for Loretta E.
Lynch, United States Attorney for the Eastern
District of New York, Brooklyn, NY, for Appellee.

LIVINGSTON, Circuit Judge:

This case presents the question of whether the discharge of a cartridge

from a 9-millimeter semiautomatic pistol constitutes the use of an “explosive” for

purposes of 18 U.S.C. § 844(h)(1). For the reasons that follow, we conclude that

it does not.

Defendant-Appellant Larone Graham, a/k/a Abgod Graham (“Graham”),

appeals from a June 17, 2009, judgment of the United States District Court for

the Eastern District of New York (Seybert, J.) sentencing him principally to a

total of 50 years’ imprisonment and five years’ supervised release, following his

conviction, upon a jury trial, of: conspiracy to affect commerce by robbery, in

2
violation of 18 U.S.C. § 1951(a); affecting commerce by robbery, in violation of

18 U.S.C. §§ 1951(a) and 2; conspiracy to affect commerce by extortion, in

violation of 18 U.S.C. § 1951(a); affecting commerce by extortion, in violation of

18 U.S.C. § 1951(a) and 2; discharging a firearm during a crime of violence, in

violation of 18 U.S.C. § 924(c)(1)(A)(iii); and using an explosive to commit a

felony, in violation of 18 U.S.C. § 844(h)(1). Graham’s 50-year sentence included

two consecutive, mandatory 10-year terms of imprisonment for the violations of

18 U.S.C. § 924(c)(1)(A)(iii) and 18 U.S.C. § 844(h)(1), both based on Graham’s

firing of a gun at the ground next to the victim of his extortion.

On appeal, Graham argues principally that his conviction on Count Eleven

of the Superseding Indictment for use of an explosive to commit a felony, in

violation of 18 U.S.C. § 844(h)(1), should be reversed because the cartridge in the

9-millimeter semiautomatic pistol he discharged during the course of his

extortion does not constitute an “explosive” for purposes of the statute.1 In the

1
18 U.S.C. § 844(h) provides that

[w]hoever —

(1) uses fire or an explosive to commit any felony
which may be prosecuted in a court of the United
States, or
(2) carries an explosive during the commission of
any felony which may be prosecuted in a court of the
United States,

3
alternative, Graham argues that convicting him for one act of discharging a gun

in furtherance of extortion under both 18 U.S.C. § 844(h)(1), the explosives

statute, and 18 U.S.C. § 924(c)(1)(A)(iii), the statute punishing the discharge of

a firearm used or carried during and in relation to a crime of violence,

constitutes multiple punishments for the same offense and therefore violates the

Double Jeopardy Clause of the Fifth Amendment, U.S. CONST. amend. V.2

including a felony which provides for an enhanced
punishment if committed by the use of a deadly or
dangerous weapon or device shall, in addition to the
punishment provided for such felony, be sentenced to
imprisonment for 10 years. In the case of a second or
subsequent conviction under this subsection, such person
shall be sentenced to imprisonment for 20 years.
Notwithstanding any other provision of law, the court shall
not place on probation or suspend the sentence of any
person convicted of a violation of this subsection, nor shall
the term of imprisonment imposed under this subsection
run concurrently with any other term of imprisonment
including that imposed for the felony in which the
explosive was used or carried.
2
18 U.S.C. § 924(c)(1)(A) provides that

[e]xcept to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other
provision of law, any person who, during and in relation to
any crime of violence or drug trafficking crime (including
a crime of violence or drug trafficking crime that provides
for an enhanced punishment if committed by the use of a
deadly or dangerous weapon or device) for which the
person may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall, in addition to the
4
 For the reasons stated below, we conclude that the term “explosive” in 18

U.S.C. § 844(h)(1) does not include within its ambit the cartridge in the 9-

millimeter semiautomatic pistol used by Graham. Accordingly, we reverse the

judgment of the district court on Count Eleven of the Superseding Indictment.3

In an accompanying summary order filed today, we reject Graham’s remaining

challenges to his conviction. Accordingly, we reverse his conviction on Count

punishment provided for such crime of violence or drug
trafficking crime —

(i) be sentenced to a term of imprisonment of not less
than 5 years;
(ii) if the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a
term of imprisonment of not less than 10 years.

A “crime of violence” is defined as an offense that is a felony under United
States law and:

“(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course
of committing the offense.”

18 U.S.C. § 924(c)(3).
3
In light of this disposition, we need not address Graham’s arguments that
18 U.S.C. § 844(h)(1) is void for vagueness as applied to him; that his convictions
under both 18 U.S.C. § 844(h)(1) and 18 U.S.C. § 924(c)(1)(A)(iii) constitute
multiple punishments for the same offense, in violation of the Double Jeopardy
Clause; and that the evidence presented at trial was insufficient to convict him
of a violation of 18 U.S.C. § 844(h)(1).
5
Eleven, affirm his conviction on Counts One, Two, Three, Five, Six, Seven, and

Ten, and remand for de novo resentencing on these affirmed counts, see United

States v. Rigas, 583 F.3d 108, 115–119 (2d Cir. 2009) (citing United States v.

Quintieri, 306 F.3d 1217 (2d Cir. 2002)).

BACKGROUND

I. Offense Conduct

The following background relates to the conduct charged in Count Eleven

of the Superseding Indictment and is taken from the testimony at trial.

Graham was the leader of a group of violent robbers associated with the

Louis H. Pink Houses (the “Pink Houses”), a public housing project in Brooklyn,

New York. The group, which was sometimes known as the “Pink Houses

Group,” carried out robberies of jewelry and specialty stores, collecting, among

other things, jewelry, cash, and fur coats. After Graham’s henchmen completed

the robberies, they would often gather in the parking lot of the Pink Houses and

distribute the loot amongst themselves and to Graham, their leader.

On December 3, 2003, members of the Pink Houses Group robbed the

Diamond Oro jewelry store at Broadway and 144th Street in Manhattan. The

group was led by Graham’s lieutenant, Kareem Davis (“Davis”) and included

Pink Houses Group member Tyrone Redrick (“Redrick”) and Jamel Thompson

(“Thompson”), a member of another gang known as NFL. Following this

6
successful armed robbery, the robbers drove back to Brooklyn, stopping briefly

to drop Thompson off at his girlfriend’s home. There, Thompson examined the

jewelry he had taken, electing to keep a few items for himself. These items

included a gold, diamond-encrusted ornament depicting the head of Jesus Christ

and referred to at trial as the “Jesus head.” Thompson put the remaining

jewelry into a bag.

Later that same day, Thompson called NFL’s leader, Michael Harriston

(“Harriston”), and explained that he had just executed a robbery with members

of the Pink Houses Group and would give Harriston some of the jewelry he had

stolen. The two men drove to Thompson’s house, where Thompson retrieved the

Jesus head and gave it to Harriston in exchange for a diamond ring.

That night, a group that included Graham, Davis, and other Pink Houses

Group members met in the Pink Houses parking lot with Thompson. Thompson

handed the bag of jewelry (less the items he had removed) over to the group.

After reviewing the contents of the bag, Graham indicated that he was

disappointed in the loot and that Thompson had “botched up the job.” After this

meeting, Graham and Davis became suspicious that Thompson had taken

jewelry for himself without the group’s knowledge when Thompson stopped at

his house on the way back from the robbery. Davis called Thompson, who

admitted that he had taken jewelry from the robbery, pawned it, and purchased

a white Acura with the proceeds.

7
 Graham discussed Thompson’s theft from the group with Davis and

indicated that he wanted to go find Thompson and make him give back the

jewelry he had taken for himself. Graham (accompanied by other members of

the group) located Thompson at a barber shop. After doing so, Graham forced

Thompson to get into Graham’s vehicle by, inter alia, firing a single shot into the

ground with a 9-millimeter pistol when Thompson appeared ready to flee the

scene.

The group drove to a pier in Far Rockaway, Queens; during the drive,

Thompson told Graham and the others that he had given the Jesus head to

Harriston in exchange for a ring. At the pier, Graham and his lieutenants

threatened Thompson, who promised (at gunpoint) that he would pay back his

debt to the Pink Houses Group if he was allowed to live. The group then drove

back to the Pink Houses and, later that night, released Thompson on the

condition that he commit more robberies to “make it up” to them

The group convened at a gas station on Atlantic Avenue in Brooklyn the

next day to plan a robbery that Thompson would commit to repay his debt.

Graham provided Thompson with a Mac-10 to commit the robbery and directed

him to rob a jewelry store on Canal Street in Manhattan. Though Thompson

ultimately did not commit the robbery due to the presence of a traffic policeman

and a crowd of people around the store, later that same day or the next day

8
Redrick saw Graham wearing the Jesus head that had been stolen from the

Diamond Oro.

II. Proceedings in the District Court

As relevant here, Graham was indicted on the following charges: Count

Five, conspiracy to extort Thompson, in violation of 18 U.S.C. §§ 1951(a) and

3551 et seq.; Count Six, extortion of Thompson, in violation of 18 U.S.C. §§

1951(a), 2 and 3551 et seq.; Count Ten, discharging a firearm during a crime of

violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), 2 and 3551 et seq.; and

Count Eleven, using an explosive to commit a felony, in violation of 18 U.S.C. §§

844(h)(1), 2 and 3551 et seq.4 Count Ten charged that Graham was subject to a

mandatory consecutive 10-year prison term for discharging the 9-millimeter

semiautomatic into the ground during and in relation to the extortion of

4
Graham was also charged in the following counts: Count One, conspiracy
to commit a robbery of a jewelry store on Canal Street, in violation of 18 U.S.C.
§§ 1951(a) and 3551 et seq.; Count Two, conspiracy to rob the Cellini Uomo
clothing store, in violation of 18 U.S.C. §§ 1951(a) and 3551 et seq.; Count Three,
robbery of the Cellini Uomo clothing store, in violation of 18 U.S.C. §§ 1951(a),
2 and 3551 et seq.; Count Four, attempted robbery of a jewelry store on Canal
Street, in violation of 18 U.S.C. §§ 1951(a), 2 and 3551 et seq.; Count Seven,
conspiracy to rob an international jeweler, in violation of 18 U.S.C. §§ 1951(a)
and 3551 et seq.; Count Eight, use and carrying of a firearm during a crime of
violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 2 and 3551 et seq.; Count
Nine, brandishing a firearm during a crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A)(ii), 2 and 3551 et seq.; and Count Twelve, possession of a firearm
during the shooting of Steven Morris, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), and 3551 et seq.
9
Thompson, while Count Eleven charged that the cartridge in the gun constituted

an explosive used by Thompson to commit the extortion, for which he was also

liable for a mandatory consecutive 10-year term.

Trial began on January 3, 2007. Agent John McKenna (“McKenna”) of the

Bureau of Alcohol, Tobacco and Firearms (“ATF”) testified for the Government

regarding how firearms and ammunition work. McKenna explained the

mechanics of a semiautomatic pistol of the type fired by Graham during the

extortion of Thompson:

When you pull the trigger, the mechanics . . . will cause a
hammer to fall, which will cause a firing pin to move
forward, strike the rear of the ammunition, and in striking
the rear of the ammunition, it will strike an area called the
primer, which contains very volatile explosive material in
it. So just the mere friction of it will cause a reaction and
a fire.

From there, that primer will then light a propellant
powder that is in the casing area. That . . . propellant
powder . . . will burn very, very rapidly and create a lot of
gas and heat. The gas is now looking for an area to escape,
and it will cause the projectile at the top of the
ammunition, the bullet, to then exit the firearm down the
barrel and then out the firearm.

McKenna characterized this process as a “mini-explosion” within the bullet.

On February 16, 2007, the jury returned a verdict of guilty on Counts Five,

Six, Ten, and Eleven of the Indictment, regarding the Thompson extortion. The

jury also found Graham guilty of Counts One, Two, Three, and Seven, acquitting

him as to Counts Four, Eight, Nine, and Twelve.

10
 With regard to Counts Five, Six, and Eleven, Graham moved for a

judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal

Procedure.5 Def.-Appellant’s Rule 29 Motion, at 1 (Apr. 23, 2007). Graham

argued, inter alia, that 18 U.S.C. § 844(h)(1) “was never intended to prosecute

the commonplace act of discharging a firearm,” id. at 7, and that if applicable in

this context, § 844(h)(1) was unconstitutionally vague as applied because “the

term explosive is being applied to the common and legal item, a bullet, and

legally permissible conduct, discharging a firearm,” id. at 8.

The Government responded that the plain language of the statute includes

ammunition because the definition of “explosive” in 18 U.S.C. § 844(j) refers to

“gunpowders and the various ignition methods which comport with the way

ammunition functions.”6 Gov’t Opp’n to Rule 29 Motion, at 7 (July 12, 2007).

5
In his Rule 29 motion, Graham also argued that the evidence was
insufficient as to Counts Two and Three.
6
18 U.S.C. § 844(j) defines “explosive” for the purpose of § 844(h). It
provides in relevant part that the term “explosive” means:

gunpowders, powders used for blasting, all forms of high explosives,
blasting materials, fuzes (other than electric circuit breakers),
detonators, and other detonating agents, smokeless powders. . . and
any chemical compounds, mechanical mixture, or device that
contains any oxidizing and combustible units, or other ingredients,
in such proportions, quantities, or packing that ignition by fire, by
friction, by concussion, by percussion, or by detonation of the
compound, mixture, or device or any part thereof may cause an
explosion.

11
The Government further argued that ammunition is explicitly excluded from

§ 844(g), a nearby subsection of § 844 that prohibits the possession of an

explosive in an airport, thereby indicating that ammunition is not excluded from

the definition of “explosive” applicable to § 844(h)(1). Id. Finally, the

Government pointed out that 18 U.S.C. § 845, a section of the Explosives Act

listing exceptions to the Act’s applicability, provides that “small arms

ammunition and components thereof” are excepted from some applications of the

Act, but not from the ambit of § 844(h). Id. at 7-8.

The district court heard oral argument on Graham’s Rule 29 motion at a

July 27, 2007, hearing. It began by inquiring of the Government as to whether

it had charged a violation of § 844(h)(1) based on the discharge of a firearm

during the commission of a felony in any other case. Rule 29 Trns., at 3. The

Government replied that the only instance of which it was aware in the Eastern

District in which the Government had prosecuted the discharge of a firearm

under § 844(h)(1) had ended in dismissal of the charge, and that “there is no

appellate law” on the issue of whether § 844(h)(1) covers the gunpowder in a

cartridge. Id. at 2-3. Graham’s counsel argued that the inclusion of a cartridge

under § 844(h)(1) “is beyond Congress’ intent” and that “a single shot” from

Graham’s firearm was not an “explosive” because it was not in “such proportions,

quantities, or packaging” as to fit within the definition of “explosive.” Id. at 4.

12
After hearing argument, the district court rejected Graham’s Rule 29 arguments

and denied the motion “in its entirety.” Id. at 7.

By a judgment of June 17, 2009, the district court sentenced Graham to

600 months in prison, to be followed by five years’ supervised release, and

ordered Graham to make restitution in the amount of $130,550.00. Graham’s

600-month sentence included a consecutive, 10-year mandatory term on each of

his convictions under 18 U.S.C. § 844(h)(1) and 18 U.S.C. § 924(c)(1)(A)(iii). This

appeal followed.

DISCUSSION

This case presents the question of whether the discharge of a cartridge

from a 9-millimeter semiautomatic pistol during the commission of an extortion

implicates not only the 10-year mandatory sentence in § 924(c)(1)(A)(iii) of the

Gun Control Act of 1968, Pub. L. No. 90-618, § 102, 82 Stat. 1213, 1224, codified

as amended at 18 U.S.C. § 924(c) (2000 ed. and Supp. V), prohibiting the

discharge of a firearm used or carried “during and in relation to any crime of

violence or drug trafficking crime . . . for which the person may be prosecuted in

a court of the United States,” but also the mandatory 10-year term provided for

in 18 U.S.C. § 844(h)(1) of the Explosives Control Act, enacted as Title XI of the

Organized Crime Control Act of 1970, Pub. L. No. 91-452, § 1102, 84 Stat. 922,

952 (1970) codified at 18 U.S.C. § 841 et seq., which prohibits the use of an

13
explosive to commit any felony which may be federally prosecuted. We review

this question de novo. See United States v. Mazza-Alaluf, 621 F.3d 205, 209 (2d

Cir. 2010). Graham argues that the cartridge he discharged during Thompson’s

extortion does not fall within the meaning of “explosive” as used in § 844(h)(1).

We agree.

* * *

The Explosives Control Act both regulates explosives “by controlling [their]

distribution, transportation and storage” and criminalizes conduct related to

explosives “by providing criminal penalties for their intentional misuse.” United

States v. Lorence, 706 F.2d 512, 514–515 (5th Cir. 1983). We begin, as we must,

with the Act’s text. In conducting statutory analysis, we review “the statutory

text, considering the ordinary or natural meaning of the words chosen by

Congress, as well as the placement and purpose of those words in the statutory

scheme.” United States v. Aguilar, 585 F.3d 652, 657 (2d Cir. 2009) (internal

quotation marks omitted); see also County of Nassau v. Leavitt, 524 F.3d 408,

414 (2d Cir. 2008) (noting that statutory language is read “in light of the

surrounding language and framework of the statute”). A text’s plain meaning

“can best be understood by looking to the statutory scheme as a whole and

placing the particular provision within the context of that statute.” Saks v.

Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003). Statutory construction, as

14
the Supreme Court has said, “is a holistic endeavor” in which the meaning of a

superficially ambiguous provision “is often clarified by the remainder of the

statutory scheme . . . because only one of the permissible meanings produces a

substantive effect that is compatible with the rest of the law.” United Sav. Ass’n

of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988).

Section 844(h) provides in relevant part that

[w]hoever . . . uses fire or an explosive to commit any
felony . . . including a felony which provides for an
enhanced punishment if committed by the use of a deadly
or dangerous weapon or device shall, in addition to the
punishment provided for such felony, be sentenced to
imprisonment for 10 years. . . . Notwithstanding any other
provision of law . . . the term of imprisonment imposed
under this subsection [shall not] run concurrently with any
other term of imprisonment including that imposed for the
felony in which the explosive was used or carried.

18 U.S.C. § 844(h). The term “explosive” is defined for purposes of § 844(h) as:

gunpowders, powders used for blasting, all forms of high
explosives, blasting materials, fuzes (other than electric
circuit breakers), detonators, and other detonating agents,
smokeless powders, other explosive or incendiary devices
within the meaning of paragraph (5) of section 232 of this
title, and any chemical compounds, mechanical mixture, or
device that contains any oxidizing and combustible units,
or other ingredients, in such proportions, quantities, or
packing that ignition by fire, by friction, by concussion, by
percussion, or by detonation of the compound, mixture, or
device or any part thereof may cause an explosion.

15
18 U.S.C. § 844(j).7 “Explosives” are therefore “defined as falling into three

categories: (1) articles like gun powder and blasting material that are commonly

used as explosives; (2) explosive or incendiary devices within the meaning of 18

U.S.C. § 232(5)(C); and (3) chemical compounds or mixtures that may cause an

explosion when ignited.” Lorence, 706 F.2d at 515 (footnote omitted); see also

United States v. Hepp, 656 F.2d 350, 352 (8th Cir. 1981) (same); United States

v. Hewitt, 663 F.2d 1381, 1389 (11th Cir. 1981) (same). The Government invokes

two of these three categories in urging that the discharge of a firearm constitutes

the use of an explosive: the first category, on the theory that the fired cartridge

contained gunpowder; and the third category, on the theory that a cartridge is

a device containing ingredients that, when ignited, cause an explosion. With

regard to both contentions, we disagree.

7
Section 232(5) further defines the term “explosive or incendiary device”
as
(A) dynamite and all other forms of high explosives, (B) any
explosive bomb, grenade, missile, or similar device, and (C)
any incendiary bomb or grenade, fire bomb, or similar
device, including any device which (i) consists of or includes
a breakable container including a flammable liquid or
compound, and a wick composed of any material which,
when ignited, is capable of igniting such flammable liquid
or compound, and (ii) can be carried or thrown by one
individual acting alone.

18 U.S.C. § 232(5).
16
 As to the first theory, the Government is correct that firearms like

Graham’s 9-millimeter semiautomatic expel bullets by the combustion of

gunpowder or other explosive material contained within the cartridge. See

Black’s Law Dictionary 710 (9th ed. 2009) (defining firearms). Section 844(j),

however, does not specifically list either single cartridges or ammunition

generally as a form of explosive falling within its ambit. Instead, it defines

“explosive” to mean, in relevant part, “gunpowders, powders used for blasting,

all forms of high explosives, blasting materials, fuzes (other than electric circuit

breakers), detonators, and other detonating agents [and] smokeless powders.”

18 U.S.C. § 844(j).

As the Supreme Court has advised, “words and people are known by their

companions.” Gutierrez v. Ada, 528 U.S. 250, 255 (2000); id. at 254–258

(invoking the canon noscitur a sociis to narrow the relevant phrase “in any

election” where the phrase was closely surrounded by six specific references to

gubernatorial elections); accord Gustafson v. Alloyd Co., 513 U.S. 561, 575

(1995). Here, we deem it significant that the word “gunpowders” in § 844(j)

appears in a list of materials that also includes high explosives, detonators, and

detonating agents—all used in detonation, a particularly fierce and explosive

chemical reaction “producing vigorous evolution of heat and sparks or flame and

moving through the material detonated (as a high explosive such as dynamite

17
or TNT) at a speed greater than that of sound.” Webster’s Third New Int’l

Dictionary 617 (2002). The list also includes blasting materials, commonly used

for the “breaking up of heavy masses (as of rock) by means of explosives.” Id. at

231.

To be sure, gunpowder is also a powerful explosive that can be used in

blasting. And absent some indication in the text we hesitate to conclude that §

844(j) requires some minimum quantity of gunpowder to be present before it will

apply. In ordinary usage, however, a person carrying a single unspent pistol

cartridge in his pocket—a cartridge containing a small amount of gunpowder—is

hardly deemed by virtue of this to be armed with gunpowder or an explosive. We

do not think Congress intended this result, nor do we think the Government’s

interpretation of § 844(j)—that a single 9-millimeter cartridge falls within its

definition of explosive, simply because the cartridge contains a small quantity

of gunpowder—is reasonable.

This conclusion is not altered by the Government’s second argument—that

the cartridge in Graham’s 9-millimeter weapon was, in effect, a device

containing ingredients such that ignition could cause an explosion. Section

844(j) defines explosive, in relevant part, as any “chemical compound[],

mechanical mixture, or device that contains any oxidizing and combustible units,

or other ingredients, in such proportions, quantities, or packing that ignition by

18
fire, by friction, by concussion, by percussion, or by detonation of the compound,

mixture, or device or any part thereof may cause an explosion.” 18 U.S.C.

§ 844(j). The Government argues that this definition is applicable here because,

as Agent McKenna testified, a bullet fires via a “mini-explosion.” Accepting this

argument, however, would mean that the getaway driver in every bank robbery

would also be subject to § 844(h)—not for robbing the bank, but for using an

explosive to do so. After all, the internal combustion engine relies on a mini-

explosion to produce “the hot gaseous products of combustion acting on moving

surfaces of the engine, such as the face of a piston, a turbine blade, or a nozzle,”

that cause the engine to run. See Encyclopaedia Britannica, Internal-

Combustion Engine, http://www.britannica.com/EBchecked/topic/290504/

internal-combustion-engine (last visited Aug. 7, 2012). Indeed, the chamber of

the engine in which the combustion process occurs is sometimes known as the

“explosion chamber.” 5 Oxford English Dictionary 576 (2d ed. 1991).

We do not deem the Government’s construction of § 844(j) to be reasonable.

In United States v. Gelb, 700 F.2d 875 (2d Cir. 1983), we rejected the notion that

spilled gasoline, used to set a commercial building afire, constituted an explosive

for the purpose of § 844(j), simply because “chemical compounds such as gasoline

may cause an explosion under certain atmospheric conditions.” Id. at 878. The

19
Government, curiously, fails to cite Gelb, much less discuss its implications here.

At any rate, we need not speculate as to the line between “mini” explosions and

larger ones, nor address § 844(j)’s potential application to incendiary bullets,

“intended to ignite flammable materials such as gasoline,” see Encyclopaedia

Britannica, Ammunition, http://www.britannica.com/EBchecked/topic/21113/

ammunition (last visited Aug. 7, 2012), or to ammunition generally, in order to

conclude that a single 9-millimeter cartridge does not constitute an explosive for

the purpose of § 844(j), simply because it may be fired from a gun.

This conclusion is confirmed by consideration of the Explosive Control

Act’s penalty provisions in light of those contained in the Gun Control Act. Cf.

United Sav., 484 U.S. at 371 (interpreting § 362(d)(1) of the Bankruptcy Code so

as to “produce[ ] a substantive effect . . . compatible with the rest of the law”).

In the version of § 924(c)(2) of the Gun Control Act in effect when § 844(h) was

enacted, Congress mandated a term of no less than one year and no more than

10 years for anyone who “carrie[d] a firearm unlawfully during the commission

of any felony which may be prosecuted in a court of the United States.” 18

U.S.C. § 924(c)(2) (1964 ed., Supp. IV). Section 844(h)(2) was modeled on this

provision: “Except for the word ‘explosive’ in § 844(h)(2), instead of the word

‘firearm’ in § 924(c)(2), the two provisions as originally enacted were identical.”

20
United States v. Ressam, 553 U.S. 272, 275 (2008). Thus, it is clear that

Congress meant to establish a sentencing enhancement for use of explosives as

a counterpart to the existing firearms enhancement, in order to address “an

emerging social concern [with] the tragedy of lost lives and damage to property

caused by . . . bombings,” Gelb, 700 F.2d at 878. Despite the close relationship

between the two provisions, however, there is no hint in the text or structure of

the Explosives Control Act that Congress also intended to heighten substantially

the existing firearms enhancement, so long as the firearm at issue happened to

contain at least one cartridge.

As the Supreme Court pointed out in Ressam, moreover, Congress

thereafter redrafted what was then § 924(c)(2) (the firearms enhancement) to,

inter alia, increase its penalties, “delete[ ] the word ‘unlawfully’ and insert[ ] the

words ‘and in relation to’ immediately after the word ‘during.’” Ressam, 553 U.S.

at 275. The provision was amended to apply to those who “carr[y] a firearm

during and in relation to” the commission of qualifying felonies in order to allay

concerns that a person could be prosecuted under this provision for committing

“an entirely unrelated crime while in possession of a firearm,” id. at 276

(internal quotation marks omitted). Section 844(h) (the explosives

enhancement) was thereafter also amended to delete the word “unlawfully” but,

21
significantly, not to insert the words “in relation to,” as was done with regard to

§ 924(c)(2). See id. at 276.

The Supreme Court in Ressam concluded from this enactment history that

Congress in amending § 844(h) “did not intend to introduce a relational

requirement into the explosives provision.” Id. at 277. Accordingly, unlike §

924(c), § 844(h) applies whenever explosives are carried during the commission

of a felony under United States law.8 The careful distinction between explosives

and firearms that the Ressam Court perceived Congress to have enacted in

amending § 844(h), however, comes substantially undone if § 844(j), when

enacted, brought a 9-millimeter cartridge within the terms of § 844(h). For if the

Government’s construction is correct, an individual will always be subject to the

explosives enhancement for committing a felony under United States law while

carrying a firearm, so long as the gun is loaded.

Nor do the difficulties with the Government’s construction end there.

Congress in 1984 confined the heightened penalties applicable pursuant to §

924(c) to those who use or carry firearms during and in relation to crimes of

8
As previously noted, see supra note 1, § 844(h)(2) provides an enhanced
penalty not only for those who use explosives in committing such a felony, but
also for those who carry them “during the commission of any felony which may
be prosecuted in a court of the United States.” 18 U.S.C. § 844(h)(2).
22
violence, thereafter also making them applicable in the context of drug

trafficking crimes. Section 844(h), however, applies to those who use explosives

to commit any felony under United States law, or who carry explosives during

the commission of such a crime. Indeed, pursuant to the Government’s

construction, if an individual merely happened to have a pistol cartridge in his

pocket during the commission of any felony under United States law (including,

one may suppose, telemarketing fraud, 18 U.S.C. §§ 2325–26; software piracy,

18 U.S.C. § 2319; and illicitly cutting and removing timber on public land, 18

U.S.C. § 641), he thereby triggers the Explosives Act’s 10-year mandatory

consecutive term in addition to whatever penalty he might receive for the

underlying crime. Again, however, carefully limiting the reach of the Gun

Control Act’s enhanced penalties makes little sense if the possession of a loaded

firearm automatically triggers the sentencing enhancement in the Explosives

Act. And the Government’s construction—that a person like Graham triggers

application of both § 924(c)(1)(A)(iii) and § 844(h)—produces the very odd result

that a bank robber armed only with a pistol, who shoots it once into the air to

intimidate the bank’s customers, could be punished more severely—10 years

more severely, to be exact—than a robber who uses a flask of nitroglycerin to

accomplish the same result.

23
 The Government suggests that the Fourth Circuit’s decision in United

States v. Davis, 202 F.3d 212 (4th Cir. 2000), supports its reading of the statute.

Suffice it to say that the Davis court, which concluded that the sentencing

enhancement for property damage by use of explosives, see USSG § 2K1.4,

“includes the damage caused by projectiles discharged from a firearm,” Davis,

202 F.3d at 220–221, was merely interpreting a sentencing guideline, and so had

no occasion in its (quite brief) discussion of “explosive,” id. at 218–219, to grapple

with the relationship between the respective sentencing enhancements in §

844(h) (explosives) and § 924(c) (firearms).

The Government also relied in its opposition to Graham’s Rule 29 motion

on a provision of the Explosives Control Act providing for exceptions from the

Act’s regulatory scheme, 18 U.S.C. § 845(a). Section 845 exempts specified forms

of manufacture, transport, and use of explosive material—such as certain uses

in medicine, for instance—from the Explosives Control Act’s regulatory scheme,

but directs that these categories shall not be exempted from the subsections of

§ 844 which criminalize the use of explosives in furtherance of illegal acts

(including § 844(h), the subsection at issue here). The Government argues that

the exemption in § 845 for “small arms ammunition and components thereof”

shows that Congress declined to exempt small arms ammunition from the ambit

of § 844(h).

24
 The Government points similarly to 18 U.S.C. § 844(g), which criminalizes

the possession of an explosive in an airport, but exempts from its ambit the

possession of ammunition in checked baggage.9 The Government argues that

this exclusion clearly signifies that “explosive” includes “ammunition,” or else an

9
18 U.S.C. § 844(g) provides in full that

(1) Except as provided in paragraph (2), whoever possesses
an explosive in an airport that is subject to the regulatory
authority of the Federal Aviation Administration, or in any
building in whole or in part owned, possessed, or used by,
or leased to, the United States or any department or
agency thereof, except with the written consent of the
agency, department, or other person responsible for the
management of such building or airport, shall be
imprisoned for not more than five years, or fined under
this title, or both.

(2) The provisions of this subsection shall not be applicable
to —

(A) the possession of ammunition (as that term is
defined in regulations issued pursuant to this
chapter) in an airport that is subject to the
regulatory authority of the Federal Aviation
Administration if such ammunition is either in
checked baggage or in a closed container; or

(B) the possession of an explosive in an airport if the
packaging and transportation of such explosive is
exempt from, or subject to and in accordance with,
regulations of the Pipeline and Hazardous Materials
Safety Administration for the handling of hazardous
materials pursuant to chapter 51 of title 49.
25
exception for the possession of “ammunition” in checked baggage and closed

containers would be unnecessary.

Suffice it to say that the Government’s arguments are aimed at a different

case than the one before us today. We do not hold here that ammunition

generally (small arms or otherwise), which may conceivably be employed in

quantities or in a manner far different from the single 9-millimeter cartridge

discharged by Graham, cannot fall within § 844(j)’s definition of explosive, and

thus trigger the § 844(h) enhancement. We decide only the case before us. We

do pause, however, to note—without deciding the question—the alternative

possibility that the exemptions here, though “technically unnecessary, . . . were

inserted out of an abundance of caution — a drafting imprecision venerable

enough to have left its mark on legal Latin (ex abundanti cautela).” Fort Stewart

Schs v. Fed. Labor Relations Auth., 495 U.S. 641, 646 (1990). At any rate, to the

extent that the exemptions in § 844(g) and § 845 support the Government’s

reading of § 844(j), we think that this support is outweighed by the contrary

arguments from text and structure set out above. Deciding only the case before

us, we conclude that it is not reasonable to construe § 844(j) as including within

its ambit a single 9-millimeter cartridge, simply because it contains a small

amount of gunpowder and can be fired from a gun. Accordingly, we conclude

that § 844(h) does not apply in the circumstances present here.

26
 CONCLUSION

For the foregoing reasons, we REVERSE the judgment of the district court

on Count Eleven of the Indictment. In the summary order that accompanies this

opinion and that is filed today, we reject Graham’s challenges to his conviction

on Counts One, Two, Three, Five, Six, Seven, and Ten and AFFIRM the judgment

as to these counts. The matter is REMANDED for resentencing, United States v.

Rigas, 583 F.3d 108, 115-119 (2d Cir. 2009) (citation omitted), and for further

proceedings consistent with this opinion.

27