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No. 07-455

 

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

AHMED RESSAM

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PAUL D. CLEMENT
Solicitor General
Counsel of Record
KENNETH L. WAINSTEIN
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
TOBY J. HEYTENS
Assistant to the Solicitor
General
JOHN F. DE PUE
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Section 844(h)(2) of Title 18, United States Code, prescribes a mandatory ten-year term of imprisonment for any person who "carries an explosive during the commission of any felony which may be prosecuted in a court of the United States." The question presented is whether Section 844(h)(2) requires that the explosives be carried "in relation to" the underlying felony.

In the Supreme Court of the United States

No. 07-455

UNITED STATES OF AMERICA, PETITIONER

v.

AHMED RESSAM

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States of America, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App., infra, 1a- 23a) is reported at 474 F.3d 597.

JURISDICTION

The judgment of the court of appeals was entered on January 16, 2007. A petition for rehearing was denied on June 6, 2007 (App., infra, 24a-31a). On August 22, 2007, Justice Kennedy extended the time within which to file a petition for a writ of certiorari to and including October 4, 2007. The jurisdiction of this Court is in voked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions are reproduced in the appendix to this petition. App., infra, 32a-36a.

STATEMENT

Respondent was indicted on nine counts growing out of his attempt to enter the United States with an explosive, intending to detonate the explosive at Los Angeles International Airport (LAX). Following a jury trial in the United States District Court for the Western District of Washington, respondent was con victed of conspiring to commit an act of terrorism tran scending a national boundary, in violation of 18 U.S.C. 2332b(a)(1)(B) (Count 1); placing explosives in proximity to a terminal, in violation of 18 U.S.C. 33 (Count 2); pos sessing false identification documents with intent to de fraud the United States, in violation of 18 U.S.C. 1028(a)(4) (Count 3); entering the United States using a fictitious name, in violation of 18 U.S.C. 1546 (Count 4); making a false statement to a United States customs official, in violation of 18 U.S.C. 1001 (Count 5); smug gling explosives into the United States, in violation of 18 U.S.C. 545; transporting explosives without a permit, in violation of 18 U.S.C. 842(a)(3)(A) (Count 7); possessing an unregistered destructive device, in violation of 26 U.S.C. 5845(a), 5861(d) (Count 8); and carrying explo sives during the commission of a felony (the false state ment offense charged in Count 5), in violation of 18 U.S.C. 844(h)(2) (Count 9). He was sentenced to 22 years of imprisonment. A divided panel of the court of appeals reversed respondent's conviction on the Section 844(h)(2) count, holding that the government had been required to establish that the explosives were carried "in relation to" the underlying false statement offense charged in Count 5. App., infra, 1a-23a.

1. Section 844(h) prescribes a mandatory ten-year term of imprisonment for any person who

(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.

18 U.S.C. 844(h). The statute further states that a dis trict 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 * * * run concurrently with any other term of imprisonment including that imposed for the felony in which the explo sive was used or carried." Ibid.

2. Respondent is an Algerian citizen. In 1998, he was recruited by an al Qaeda operative while living in Canada. After using a forged baptismal certificate to obtain a Canadian passport in the name Benni Antoine Noris, respondent traveled to Afghanistan, where he received advanced training in the manufacture and use of explosives. During that period, respondent and oth ers conceived a plot to target a U.S. airport to coincide with the millennium. App., infra, 4a; C.A. E.R. 496. Respondent eventually selected LAX as his target. App., infra, 1a, 4a.

On December 14, 1999, respondent and another al Qaeda operative loaded explosives, electronic timing devices, detonators, fertilizer, and aluminum sulfite into the spare tire compartment of a rental car. Respondent then traveled to the United States by a circuitous route, ultimately boarding the day's last car ferry from Tswassen, British Columbia to Port Angeles, Washing ton. App., infra, 4a.

Upon arrival in the United States, respondent be came agitated when questioned by a customs inspector. The customs inspector instructed respondent to com plete a customs declaration form, on which respondent claimed to be a Canadian citizen and signed his name as Benni Noris. App., infra, 5a; C.A. E.R. 630-631. The customs inspector directed respondent to a secondary inspection station, where respondent's vehicle was searched and the explosives and other items were dis covered. An expert later determined that a bomb made from the materials found in respondent's car could have killed or injured hundreds of people if detonated during the holiday travel rush at LAX. App., infra, 5a.

3. On February 14, 2001, a grand jury returned a nine-count Second Superseding Indictment. App., infra, 5a. Count 9 charged a violation of 18 U.S.C. 844(h)(2). It read:

On or about December 14, 1999, * * * [respondent] knowingly carried an explosive during the commis sion of a felony prosecutable in a court of the United States, that is making a false statement to a U.S. Customs Inspector as charged in Count 5.

App., infra, 14a.

At trial, respondent filed a motion for a judgment of acquittal on Count 9, arguing that the act of carrying explosives had played no role in the false statement of fense charged in Count 5. The district court denied that motion. Respondent also unsuccessfully objected to the district court's jury instructions on Count 9 because they did not contain a relational requirement. The jury found respondent guilty on all counts. App., infra, 6a.

Shortly after the jury's verdict, respondent entered into a cooperation agreement with the government. Re spondent provided extensive assistance, but later "stopped cooperating." App., infra, 6a. "[A]t the court's instigation" and in the hope of encouraging additional cooperation, the government moved under Guidelines § 5K1.1 for a downward departure based on respon dent's testimony at one trial. Ibid.; C.A. E.R. 100. "Still, [respondent] did not resume cooperation." App., infra, 6a. As a result, the government was forced to dismiss pending indictments against two confederates who had been charged based on information provided by respondent. Gov't C.A. E.R. 116-142.

As calculated by the probation officer, respondent's convictions carried a Guidelines range of 65 years to life imprisonment. C.A. E.R. Under Seal 296. The district court sentenced respondent to 22 years of imprisonment and instructed the government "to allocate that [term of imprisonment] according to the statutory minimums among the counts in consecutive and concurrent as nec essary to arrive at a total of 22 years." App., infra, 6a- 7a. The district court "expressed no view on an appro priate Guidelines range, including the effect of the fac tors bearing on substantial assistance to authorities in § 5K1.1, and offered no explanation for imposition of the particular sentence in consideration of the factors in 18 U.S.C. § 3553(a)." Id. at 7a.

4. The government appealed the sentence as unrea sonable, and respondent filed a cross-appeal challenging the sufficiency of the evidence on Count 9. A divided panel of the court of appeals reversed respondent's con viction on Count 9 and remanded for resentencing with out reaching the government's arguments. App., infra, 1a-23a.

a. The court of appeals acknowledged that "the Third and Fifth Circuits have declined to interpret § 844(h)(2) as requiring that the explosives be carried in relation to the underlying felony." App., infra, 7a (citing United States v. Rosenberg, 806 F.2d 1169, 1179 (3d Cir. 1986), cert. denied, 481 U.S. 1070 (1987), and United States v. Ivy, 929 F.2d 147, 151 (5th Cir.), cert. denied, 502 U.S. 883 (1991)). But it held that its earlier decision in United States v. Stewart, 779 F.2d 538 (9th Cir. 1985) (Kennedy, J.), mandated a different result. App., infra, 8a-12a. Stewart involved 18 U.S.C. 924(c), which at the time of the defendant's conduct in that case had pro scribed "carr[ying] a firearm unlawfully during the com mission of any felony." 18 U.S.C. 924(c)(2) (1982). Shortly before the Ninth Circuit's decision in Stewart, Congress amended Section 924(c) by deleting the word "unlawfully" and adding "and in relation to" after "dur ing." See Act of Oct. 12, 1984, Pub. L. No. 98-473, § 1005, 98 Stat. 2138. The legislative history of that amendment, Stewart concluded, "reveal[ed] an under standing on the part of the amending Congress that the earlier Congress intended to require a relation be tween the firearm and the underlying crime." 779 F.2d at 540. Based on that subsequent history, as well as the "sparse" legislative history of the original statute, Stew art interpreted the pre-amended Section 924(c)(2) "as if it contained the requirement that the firearm be pos sessed 'during and in relation to' the underlying of fense." Ibid.

Here, the court of appeals reasoned that Stewart's construction of former Section 924(c)(2) mandated the conclusion that "§ 844(h)(2) necessarily always had a relational element as well." App., infra, 11a. Section 844(h), it emphasized, had been patterned after Section 924(c), and the original version of the explosives statute "was identical to the original firearms counterpart that we considered in Stewart." Id. at 9a-10a. The court of appeals acknowledged that Congress had, post-Stewart, amended Section 844(h)(2) by striking the word "unlaw fully" without at the same time adding "and in relation to." Id. at 10a-11a. But the court of appeals stated that the legislative history of that amendment "does not spe cifically say why" Section 844(h)(2) was amended in that manner, and it reasoned that "[b]ecause in Stewart we did not think addition of the phrase 'and in relation to' changed the scope of original § 924(c), we are hard- pressed now to say that its absence changes the scope of § 844(h)(2)." Id. at 11a.

Having interpreted Section 844(h)(2) as including an implicit relational element, the court of appeals stated that there was "no real dispute that [respondent's] con viction on Count 9 cannot stand." App., infra, 12a. Al though respondent had conceded that the government introduced "ample evidence" that he made a false state ment on his customs form and that "he carried explo sives in the trunk of his car," the court stated that there was "no evidence" that the explosives "facilitated" or "aided the commission of" the underlying false state ment offense. Id. at 12a-13a.

b. Judge Alarcón dissented from the court of ap peals' decision to reverse respondent's conviction on Count 9. App., infra, 14a-23a. In his view, the statutory text plainly and unambiguously demonstrates that Sec tion 844(h)(2) contains no relational requirement, and the court "lack[ed] the constitutional authority to add an element to a criminal statute." Id. at 19a. Judge Alarcón also observed that "Congress has not amended § 844(h)(2) to add a relational element" in response to the Third Circuit's twenty-year-old holding in Rosen berg, id. at 20a, and he argued that Stewart did not limit the court's ability to follow "the words expressly and unambiguously set forth by Congress in a separate stat ute," id. at 21a.

5. The court of appeals denied the government's petition for rehearing en banc. App., infra, 24a-25a. Judge O'Scannlain filed a dissent from the denial of rehearing that was joined by Judges Kleinfeld, Gould, Bybee, Callahan, and Bea. Id. at 25a-31a. Con gress's failure to add the words "and in relation to" when it amended the explosives statute in 1988, Judge O'Scannlain argued, meant that the court was "not 'con strained' by Stewart's reasoning in deciding the proper interpretation of § 844(h)(2)." Id. at 28a. He also ex plained that the panel's decision was "in conflict with every other circuit which has had occasion to consider the question." Id. at 29a (citing Rosenberg, supra; Ivy, supra; and United States v. Jenkins, 229 Fed. Appx. 362 (6th Cir. 2005), cert. denied, 126 S. Ct. 2022 (2006)). Finally, Judge O'Scannlain stated that it was "reason able to question the validity of Stewart's reasoning," because that decision had relied "upon the legislative history of an amendment to determine the scope of the pre-amendment statute" and because "other courts have not read the legislative history relied upon by Stewart to be so clear." Id. at 30a n.3 (citing Rosenberg, 806 F.2d at 1178).

REASONS FOR GRANTING THE PETITION

The court of appeals has misconstrued 18 U.S.C. 844(h)(2) in a way that conflicts with the decisions of other courts of appeals and could significantly diminish the statute's usefulness as a tool for combating ter rorism-related offenses. Nothing in the text of Section 844(h)(2) indicates that the explosives must have been carried "in relation to" the underlying felony, and this Court has repeatedly emphasized that courts should not "read * * * absent word[s] into [a] statute." Lamie v. United States Trustee, 540 U.S. 526, 538 (2004). That conclusion is bolstered by Congress's express inclusion of the very words the Ninth Circuit read into Section 844(h)(2), "in relation to," in the current version of Sec tion 924(c), whose predecessor provided the model for Section 844(h)(2). The contrast between the two stat utes confirms that the absence of comparable language in Section 844(h)(2) reflects a deliberate choice.

The court of appeals' erroneous holding warrants review. The panel majority acknowledged a square con flict between its decision here and the decisions of two other courts of appeals, App., infra, 7a-9a, and it stated that the proper resolution of that conflict "matters in this case," id. at 7a. Section 844(h)(2) applies to respon dent's conduct, if no relational element must be estab lished, because he clearly carried an explosive during his felony of making a false statement to a customs inspec tor. But under the court of appeals' holding, it does not, even though his possession of an explosive raised a sig nificant danger to others. The proper scope of Section 844(h)(2) is a matter of increasing importance in light of the provision's application to certain terrorist plots. Indeed, this case provides an apt illustration of why the court of appeals' holding will make it more difficult to obtain appropriate punishment in situations where the government foils an act of terrorism before the plan is put into action. Accordingly, this Court's review is war ranted.

A. The Decision Of The Court Of Appeals Conflicts With
Decisions Of Other Courts Of Appeals

Section 844(h)(2) provides a mandatory ten-year term of imprisonment for any person who "carries an explosive during the commission of any felony which may be prosecuted in a court of the United States." 18 U.S.C. 844(h)(2). The court of appeals held that this provision requires proof that the explosives were carried "in relation to" the specified felony, App., infra, 2a, 11a, and it reversed respondent's conviction on Count 9 be cause it concluded that no such relationship had been established in this case, id. at 12a-13a. As the panel ma jority acknowledged, id. at 7a-9a, that decision directly conflicts with the published decisions of two other courts of appeals.

1. In United States v. Rosenberg, 806 F.2d 1169 (1986), cert. denied, 481 U.S. 1070 (1987), the Third Cir cuit squarely held that Section "844(h)(2) has no rela tional element," id. at 1179, and it affirmed a conviction under that provision even though "no specific connection was shown between the carrying of the explosives and the [underlying] felony," id. at 1177.

The version of Section 844(h)(2) in effect at the time of Rosenberg was identical to the current statute except for its inclusion of the word "unlawfully" between "ex plosive" and "during." See 18 U.S.C. 844(h)(2) (1982) (mandating enhanced punishment for any person who "carries an explosive unlawfully during the commission of any felony which may be prosecuted in a court of the United States"). Because no colorable argument exists that Congress's elimination of the word "unlawfully" somehow added a relational element mentioned nowhere in the text of either version of Section 844(h)(2), the con flict between the court of appeals' decision here and Rosenberg is a square one. See App., infra, 7a-9a (ac knowledging conflict with Rosenberg); id. at 19a-21a (Alarcón, J., dissenting); id. at 29a (O'Scannlain, J., dis senting from denial of rehearing en banc).

2. In United States v. Ivy, 929 F.2d 147, cert. denied, 502 U.S. 883 (1991), the Fifth Circuit endorsed the Third Circuit's decision in Rosenberg, stated that "[w]e, too, refuse to judicially append the relation element to § 844(h)(2)," and rejected the defendant's argument that the district court had erred in refusing to instruct the jury that it could not convict unless "the defendant car ried the explosives 'during and in relation to' the kid- napping." Id. at 151.

The Fifth Circuit's rejection of a relational element in Ivy was not "an alternative holding," App., infra, 7a, or "best regarded as dicta," Resp. C.A. Reh'g Br. 17 n.4. The defendant in Ivy raised two distinct claims: (1) that the evidence was insufficient to demonstrate he carried the explosives during the felony; and (2) that the judge erred in refusing to instruct the jury that he must have carried the explosive "during and in relation to" the fel ony. Ivy, 929 F.2d at 151. The court considered the suf ficiency of the evidence of "carrying" first.1 Ibid. The principal thrust of the sufficiency argument was that the explosive device was in the trunk of the defendant's car, which remained at the site of the original abduction while the defendant and the estranged wife embarked on a multi-state tour in her car. Id. at 149, 151. The court of appeals, however, emphasized that the explosive de vice facilitated the original abduction, and thus was car ried during the offense. Id. at 151. In reaching that conclusion, the court pointed to evidence that might have satisfied an "in relation to" element, "[t]he evi dence was sufficient to support the jury's conclusion that the bomb facilitated the kidnapping and established an offense under § 844," but only in the context of finding ample evidence of carrying. Ibid. Cf. Muscarello v. United States, 524 U.S. 125, 127 (1998) (holding that a defendant "carries a firearm" within the meaning of 18 U.S.C. 924(c)(1) in situations where the firearm is con tained "in the locked glove compartment or trunk of a car[] which the person accompanies").

The court then went on to address the argument that the judge erred in failing to instruct the jury concerning the "and in relation to" element. Ivy, 929 F.2d at 151. Ivy's rejection of a relational element under Section 844(h)(2) was independent of its sufficiency holding and necessary to support the court's judgment. Although a trial court's failure to instruct a jury on an element of a criminal offense may be harmless error, see Neder v. United States, 527 U.S. 1 (1999), the Fifth Circuit's opin ion contains no harmlessness analysis and to the con trary the court expressly held that no instructional error occurred. See Ivy, 929 F.2d at 151. Accordingly, Ivy's conclusion that "Section 844(h)(2) * * * does not in clude the relation element Ivy urges," ibid., was essen tial to the result in that case.

This 2-1 conflict among published court of appeals decisions merits this Court's review.2 Although the is sue has not generated a volume of published opinions, it is increasingly important in terrorism prosecutions. Moreover, the government's ability to obtain an appro priate sentence for an attempted act of international terrorism should not depend on whether the defendant attempted to enter the United States through Washing ton State rather than New Jersey, Pennsylvania, or Texas.

B. The Court Of Appeals' Decision Incorrectly Constricts The Scope Of 18 U.S.C. 844(h)(2)

The decision of the court of appeals not only conflicts with the decisions of other courts of appeals, it is incor rect as well. Nothing in Section 844(h)(2)'s text indi cates that the government must establish that the explo sives were carried in relation to the underlying felony. The contrast between the text of Section 844(h)(1) and (2) as well as the presence of an express relational re quirement in current Section 924(c)(1)(A), the provision whose predecessor provided the model for Section 844(h)(2), confirm that the omission of such an element from Section 844(h)(2) reflects a deliberate choice. Nor does the court of appeals' own decision in United States v. Stewart, 779 F.2d 538 (9th Cir. 1985), which construed a different statute with different language and a differ ent legislative history, warrant interpreting Section 844(h)(2) to contain an unstated relational element.

1. The starting point for statutory construction is "the language of the statute." Bailey v. United States, 516 U.S. 137, 144 (1995). "And where the statutory lan guage provides a clear answer," the analysis "ends there as well." Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999).

Section 844(h)(2) mandates enhanced punishment for any person who "carries an explosive during the com mission of any felony which may be prosecuted in a court of the United States." As the Third Circuit has ob served, "[t]he plain everyday meaning of 'during' is 'at the same time' or 'at a point in the course of.' It does not normally mean 'at the same time and in connec- tion with.'" Rosenberg, 806 F.2d at 1178-1179 (citation omitted). "Thus, under the first criterion in the inter pretative hierarchy, a natural reading of the full text, [a relational nexus] would not be an element of [Section 844(h)(2)]." United States v. Wells, 519 U.S. 482, 490 (1997) (citation omitted); see App., infra, 29a (O'Scannlain, J., dissenting from denial of rehearing en banc) (stating that "the plain language of § 844(h)(2) says nothing about a relational element").

The contrast between Section 844(h)(1) and (2) con firms that the latter does not mandate proof that the explosives were carried in relation to the underlying felony. Whereas Section 844(h)(1) requires that the fire or explosives have been "use[d] * * * to commit" that felony, Section 844(h)(2) provides that the explosives must only have been "carrie[d] * * * during the com mission of" it. Because subsection (h)(1) clearly requires proof that the fire or explosives "aided the commission of the underlying felony in some way," App., infra, 13a, subsection (h)(2)'s use of the passive voice underscores that the only connection mandated by that provision is a temporal one.

A dissenting judge in Rosenberg argued that Sec- tion 844(h)(2) must contain an implicit relational ele- ment in order for the words "'the commission of'" to retain "some independent meaning." 806 F.2d at 1181 n.2 (Higginbotham, J., dissenting) (quoting 18 U.S.C. 844(h)(2) (1982)). But Judge Higginbotham did not ex plain how the words "the commission of" can be under stood as "connecting the possession of illegal explosives to the perpetration of some other felonious act," id. at 1180-1181, and, as we have already explained, see pp. 14- 15, supra, the contrast between the language of Sections 844(h)(1) and (h)(2) confirms that (h)(2) requires no such connection. Nor does such an interpretation result in surplusage, because the words "the commission of" con firm that it is the defendant-rather than some other individual-who must commit the underlying felony "during" which the explosives are carried.

The panel majority made no attempt to identify a source in the statutory language for its holding that Sec tion 844(h)(2) contains a relational element. Instead, it relied on circuit precedent construing another statute (former 18 U.S.C. 924(c)(2) (1982)), the relationship be tween that statute and Section 844(h)(2), and the man ner in which Section 844(h)(2) has evolved over time. App., infra, 8a-11a. But "[t]he starting point is discern ing congressional intent is the existing statutory text, and not the predecessor statutes." Lamie, 540 U.S. at 534 (citation omitted). And "when the statute's language is plain, the sole function of the courts-at least where the disposition required by the text is not absurd-is to enforce it according to its terms." Ibid. (citation omit ted).

There is nothing absurd about severely punishing any person who carries an explosive while committing another felony. As Judge O'Scannlain observed, "[t]he carrying of an explosive * * * greatly increases the risk of injury or death to others," especially given the high risk that explosives "may go off accidentally." App., infra, 28a n.1. Although the mandatory consecu tive ten-year sentence provided by Section 844(h)(2) might plausibly be characterized as harsh in some cases-though certainly not in this one-harshness of punishment alone is insufficient to render a statute's clear meaning absurd or ambiguous. See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 483-484 (1992); see also Lamie, 540 U.S. at 538 ("Our unwilling ness to soften the import of Congress' chosen words even if we believe the words lead to a harsh outcome is longstanding."). Nor is the rule of lenity at issue in this case. Because the rule is a "maxim of statutory con struction," it "cannot dictate an implausible interpreta tion of a statute, nor one at odds with the generally ac cepted contemporary meaning of a term." Taylor v. United States, 495 U.S. 575, 596 (1990).

Because the power to make laws resides with the legislature, it is improper for courts to "read * * * absent word[s] into [a] statute." Lamie, 540 U.S. at 538. The court of appeals' decision in this case does precisely that by "add[ing] an element to § 844(h)(2) that does not appear in the statute enacted by Congress." App., infra, 18a (Alarcón, J., dissenting); see Rosenberg, 806 F.2d at 1179 ("It is not fitting for this court to declare that the crime defined by § 844(h)(2) has more elements than those enumerated on the face of the statute.").

2. The court of appeals' conclusion that Section 844(h)(2) contains an unstated relational requirement also affords insufficient weight to the fact that such a requirement is set forth expressly in a closely related provision. The manner in which the two statutes have evolved, moreover, confirms the significance of that dis tinction.

As the panel recognized, see App., infra, 9a-10a, Sec tion 844(h)(2) was modeled after the predecessor of 18 U.S.C. 924(c)(1)(A), which prohibits the use or carrying of a firearm during certain specified offenses. See H.R. Rep. No. 1549, 91st Cong., 2d Sess. 69 (1970) ("Section 844(h) carries over to the explosives area the stringent provisions of the Gun Control Act of 1968 relating to the use of firearms and the unlawful carrying of firearms to commit, or during the commission of a Federal felony."). In its current form, Section 924(c)(1)(A) provides that the firearm must have been used or carried "during and in relation to" an underlying "crime of violence or drug trafficking crime." 18 U.S.C. 924(c)(1)(A) (emphasis ad ded). Given the close connection between the two provi sions, the omission of comparable language from Section 844(h)(2) would appear to reflect an "intentional[] and purpose[ful]" choice. Russello v. United States, 464 U.S. 16, 23 (1983). Indeed, "the question here is not whether identical or similar words should be read in pari materia to mean the same thing. Rather, the question is whether Congress intended its different words to make a legal difference." Burlington N. & Sante Fe Ry. v. White, 126 S. Ct. 2405, 2412 (2006) (citations omitted).

The manner in which Section 844(h)(2) has evolved confirms that Congress's failure to include a relational element in that statute was deliberate. When Section 844(h)(2) was originally enacted in 1970, both it and Sec tion 924(c)(2) prohibited "carr[ying] [a firearm or an explosive] unlawfully during the commission of any fel ony which may be prosecuted in a court of the United States." See 18 U.S.C. 844(h)(2) (1982) (App., infra, 33a); 18 U.S.C. 924(c)(2) (1982) (App., infra, 36a). In 1984, Congress amended the firearms statute to remove the word "unlawfully" and add "and in relation to" after "during." See Pub. L. No. 98-473, § 1005, 98 Stat. 2138 In 1985, the Ninth Circuit concluded that the pre-1984 firearms statute had contained an implicit relational element. See Stewart, 779 F.2d at 540. In 1986, the Third Circuit held that the explosives statute "has no relational element." Rosenberg, 806 F.2d at 1179. And in 1988, Congress amended Section 844(h)(2) by elimi nating the word "unlawfully" without at the same time adding "and in relation to." See Act of Nov. 18, 1988, Pub. L. No. 100-690, § 6474(b), 102 Stat. 4379. Although the legislative history of the 1988 amendment to Section 844(h)(2) "does not specifically say why 'unlawfully' was struck, or why 'and in relation to' was not added," App., infra, 11a,3 the best explanation is that Congress, faced with the "divergent decisions" in Stewart and Rosen berg, chose not to incorporate into Section 844(h)(2) the relational element that it had recently added to Section 924(c)(1)(A). App., infra, 28a (O'Scannlain, J., dissent ing from denial of rehearing en banc).

3. The court of appeals' earlier decision in United States v. Stewart, 779 F.2d 538 (9th Cir. 1985), does not support reading into Section 844(h)(2) a relational ele ment that appears nowhere in the statutory text. Stew art construed a different statute that was amended at a different time and in different ways. See pp. 17-18, su pra. And if Congress's subsequent addition of the words "and in relation to" can shed light on the meaning of pre- amendment Section 924(c)(2), see Stewart, 779 F.2d at 540, surely Congress's failure to add those same words suggests something about the meaning of current Sec tion 844(h)(2).

Stewart itself, moreover, did not attempt to explain how its holding was consistent with the governing statu tory text of Section 924(c), let alone make any claim about Section 844(h). Moreover, subsequent opinions of this Court render the opinion's heavy reliance "upon the legislative history of an amendment to determine the scope of the pre-amendment statute * * * question able." App., infra, 31a n.3 (O'Scannlain, J., dissenting from denial of rehearing en banc). See, e.g., Jones v. United States, 526 U.S. 227, 238 (1999) ("[S]ubsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress.") (internal quotation marks and citations omitted)); Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 185 (1994) ("[W]e have observed on more than one occasion that the interpretation given by one Congress (or a committee or Member thereof) to an earlier statute is of little assistance in discerning the meaning of that statute.") (quoting Public Employees Ret. Sys. v. Betts, 492 U.S. 158, 168 (1989). Even if such evidence may properly be considered, Stewart acknowledged that the legislative history of the 1984 amendment to Section 924(c) was "not entirely free of ambiguity," 779 F.2d at 540, and Stewart's interpretation of that history is de batable. See Rosenberg, 806 F.2d at 1178 (concluding that the Senate Report relied upon by the Stewart court "[a]t most * * * fails to explain why the 'in relation to' phrase was added to the [firearms] statute"). Finally, although Stewart concluded that firearms statute's "evi dent purpose * * * necessarily implies some relation or connection between the underlying criminal act and the use or possession of the firearm," 779 F.2d at 540, "the fact that a statute can be 'applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.'" Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (quot ing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985) (citation omitted)).

C. The Question Presented Is Of Substantial Importance

Review is also warranted because the question pre sented is important. As the relatively small number of reported decisions suggest, Section 844(h)(2) is not a frequently used provision. And it may be that in many cases the government will be able to establish that the carrying of explosives "facilitated or played a role in" (App., infra, 12a (citation omitted)) the underlying of fense.

But that will not always be the case. Unlike the fire arms statute, which applies only when the weapon is used or carried in connection with "a crime of violence or drug trafficking crime," 18 U.S.C. 924(c)(1)(A), Section 844(h)(2) is applicable whenever an explosive is "carrie[d] * * * during the commission of any felony." Many federal felonies-such as the false statement of fense charged as the underlying felony in this case- may not ordinarily lend themselves to proof that the explosives "aided the commission of the underlying fel ony" (App., infra, 13a), even though the explosives' mere presence "greatly increases the risk of injury or death to others." Id. at 28a n.1 (O'Scannlain, J., dissenting from denial of rehearing en banc).

The court of appeals0.' holding is likely to be particu larly significant in terrorism cases where a defendant ultimately intends to employ the explosives but is appre hended before the plan is put into action. A distinct fed eral offense whose commission would be facilitated by the carrying of explosives may not yet have evolved suf ficiently to permit its proof beyond a reasonable doubt. Or the evidence necessary to establish such an offense may be unavailable for use at trial, either because of national security concerns or because the evidence is in the custody of foreign governments. In such circum stances, the Ninth Circuit's decision could substantially diminish Section 844(h)(2)'s usefulness as a tool for com bating terrorist-related activity and thus make it more difficult to obtain appropriate punishment in such cases.

CONCLUSION

The petition for a writ of certiorari should be gran ted.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
KENNETH L. WAINSTEIN
Assistant Attorney General
MICHAEL R. DREEBEN Deputy Solicitor General
TOBY J. HEYTENS
Assistant to the Solicitor
General
JOHN F. DE PUE
Attorney

OCTOBER 2007

1 Respondent here has conceded that he "carried" the explosives found in the trunk of his car. See App., infra, 12a.

2 As Judge O'Scannlain observed (App., infra, 29a), the court of appeals' decision also conflicts with the Sixth Circuit's unpublished decision in United States v. Jenkins, 229 Fed. Appx. 362 (2005), cert. denied, 126 S. Ct. 2022 (2006). In Jenkins, the court of appeals stated that Rosenberg "correctly interpret[s] the statute," and it rejected the defendant's assertion that the government had been required to "show that the explosives were used to further the commission of the under lying crime." Id. at 365, 367; see ibid. ("[T]he plain language of [Sec tion 844(h)(2)] does not require a relational element.").

3 The "Senate Report" to which the court of appeals referred (App., infra, 11a) is a section-by-section bill analysis drafted and placed in the Congressional Record by Senator Biden, the then-Chairman of the Judiciary Committee. See 134 Cong. Rec. 32,692 (1988). The two sen tences that follow the one partially quoted by the court of appeals make clear that the need "to bring [Section 844(h)(2)] in line with" Congress's then-recent amendments to Section 924(c) involved a disparity in penalty rather than a general intent for the two statutes to be identical in every respect. See id. at 32,700 ("Presently, as a result of the above- referenced amendments to 18 U.S.C. 924(c), a person who uses a firearm to commit a bank robbery would be subject to harsher penalties than a person who committed the same offense using an explosive. There is no justification for this disparity.").

APPENDIX A

 

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Nos. 05-30422, 05-30441

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

v.

AHMED RESSAM, ALSO KNOWN AS
BENNI ANTOINE NORIS, DEFENDANT-APPELLEE

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v.

AHMED RESSAM, ALSO KNOWN AS
BENNI ANTOINE NORIS, DEFENDANT-APPELLANT

Filed: Jan. 16, 2007

Before: ALARCÓN, RYMER, and BERZON, Circuit Judges.

RYMER, Circuit Judge:

Ahmed Ressam trained with members of al Qaeda in Afghanistan and hatched a plot to detonate explosives at Los Angeles International Airport (LAX) in the days before the new Millennium. He was charged with, and convicted of, nine counts of criminal activity connected to this plot. Ressam challenges his conviction on one of

these counts, Count 9, for carrying an explosive dur- ing the commission of a felony-making false statements on a customs declaration-in violation of 18 U.S.C. § 844(h)(2). The issue is whether § 844(h)(2) must be read to include a relational element such that the crime is carrying an explosive during and in relation to com mission of a felony. We previously construed the statute upon which § 844(h)(2) was modeled, 18 U.S.C. § 924(c), to require this relational element, United States v. Stew art, 779 F.2d 538, 539-40 (9th Cir. 1985), even though it, too, lacked the phrase "and in relation to." We are con strained to follow Stewart's analysis here and conclude that § 844(h)(2) requires a relationship between the un derlying crime and the act of carrying an explosive. As the jury was neither instructed that such a relationship was a required element of the offense, nor did the gov ernment offer evidence that Ressam's explosives were used to facilitate his false customs declaration, his con viction on Count 9 must be reversed.

Ressam was exposed to a sentence of some 65 years, but after trial entered into a cooperation agreement with the United States according to which he would not seek, and the government would not recommend, a sentence of less than 27 years. Although he provided testimony and participated in numerous debriefings, Ressam ulti mately stopped cooperating. As a result, the govern ment recommended a sentence of 35 years. Ressam ar gued for a sentence of 120 months, and the district court imposed a sentence of 22 years. The government ap peals this sentence as unreasonable in light of Ressam's failure to continue to assist the government and the dis trict court's lack of explanation for what the government believes is an extreme departure. Given reversal of the conviction on Count 9 and its corresponding mandatory minimum sentence of 10 years, we vacate the entire sen tence so that the district court can resentence in light of this decision and developments in the law of sentencing in the meantime.

I

Ressam is an Algerian citizen. He left Algeria in 1992 for France, where he was arrested on an immigra tion-related violation. Ressam then obtained a genuine French passport under the name of Anjer Tahar Medjadi and fled for Montreal in February of 1994. Us ing his true name, Ressam sought asylum in Canada, claiming that he had been falsely accused by the Alge rian government of aiding Islamist insurgents and had served 15 months in prison. His petition was denied, but Ressam was allowed to stay in Canada because of a mor atorium on deportations to Algeria.

Ressam met an al Qaeda operative in Montreal named Abderraouf Hannachi sometime in 1998. Han nachi recruited individuals to train in al Qaeda camps in Afghanistan and to participate in jihadist activities. Us ing a forged Catholic baptismal certificate, Ressam ob tained a Canadian passport in the name of Benni An toine Noris in order to travel to Afghanistan. In March of 1998, Ressam-traveling as Benni Noris-left Mon treal for Karachi, Pakistan.

Once in Pakistan, Ressam met Abu Zubaydah, who arranged Ressam's travel to the Khalden training camp in Afghanistan. Ressam stayed with an Algerian terror group at Khalden for six months. During that time, he received firearms training and learned how to fire a rocket-propelled grenade launcher. Al Qaeda operatives at the camp taught Ressam to make explosive charges and showed him how to detonate particular types of plastic explosives. Ressam also learned how to destroy infrastructure targets, such as power plants, military installations, railroads, and airports. He later went to a second camp near Jalalabad where he received further training in explosives. It was during this time that Ressam and others hatched the plot to target a U.S. air port to coincide with the Millennium.

Ressam returned to Canada via LAX in February of 1999. He carried bomb-making notes, two chemicals used to manufacture explosives, and $12,000 in cash. Ressam resettled in Montreal where he continued to plan the LAX attack. On November 17, 1999, Ressam and Abdelmajid Dahoumane, another member of the Montreal al Qaeda cell, traveled to Vancouver, British Columbia. Ressam and Dahoumane rented a Chrysler 300M and checked into a motel. On December 14, 1999, Ressam and Dahoumane loaded the trunk of the rental car with explosives, electronic timing devices, detona tors, fertilizer, and aluminum sulfate. They drove to the ferry terminal at Tswassen, British Columbia. Dahou mane returned by bus to Vancouver while Ressam, using his Benni Noris passport, boarded the MV Coho, a ferry bound for Port Angeles, Washington. U.S. Customs in spectors1 searched the trunk of Ressam's car as part of a pre-screening process prior to departure. They did not discover the explosives which were hidden in the trunk's spare tire well.

The MV Coho docked at Port Angeles about 6:00 p.m. Customs Inspector Diana Dean was finishing her day shift when Ressam drove his vehicle off the ferry. He steered the car into the middle lane where Dean stopped him for inspection. Dean asked Ressam about his travel plans. His answers indicated that he was nervous and agitated. Dean asked Ressam to complete a customs declaration-which he signed as Benni Noris. Dean di rected Ressam to a secondary inspection station where Customs inspectors searched the vehicle. The inspec tors discovered what were later identified as the bomb's component parts. At the time, they believed Ressam was attempting to smuggle narcotics into the country.

The substances were inventoried and tested. Agents found two primary explosives (hexamethylene triper oxide diamine (HMTB) and cyclotrimethylene trini tramine (RDX)) in a Tylenol pill bottle and zinc lozenge case, a secondary explosive (ethylene glycol dinitrate (EGDN)) poured into two olive oil jars, fertilizer which can provide fuel for an explosion, and aluminum sulfate. Agents also found Ressam's fingerprints on four plastic boxes that contained timing devices. EGDN is a power ful explosive that packs twice the punch of the equiva lent amount of TNT. The detonation of the bombs dur ing the holiday travel rush at LAX would likely have killed and injured hundreds of people.

On February 14, 2001, the grand jury returned a nine-count Second Superceding Indictment against Res sam.2 It charged Ressam with an act of terrorism tran scending a national boundary, placing explosives in proximity to the ferry terminal, possessing false identifi cation, using a fictitious name, falsely identifying him self on a customs declaration form, the smuggling of and transportation of explosives, the illegal possession of a destructive device, and carrying an explosive during the commission of a felony, namely, signing the customs form as Benni Noris. The district court ordered the trial moved from Seattle to Los Angeles due to pre-trial pub licity.

Ressam filed a Federal Rule of Criminal Procedure 29 motion on Count 9, arguing that the act of carrying explosives had not played a role in the false statement made on the customs form. The district court denied the motion. Ressam also objected to the government's pro posed jury instruction on Count 9 because it lacked a relational requirement, which the district court over ruled. On April 6, 2001, the jury convicted Ressam on all counts.

Ressam's sentencing was delayed until July 27, 2005. Ressam provided extensive cooperation until early 2003, when he basically stopped cooperating. In February of that year Ressam asked the court to proceed with sen tencing, but at the court's instigation, the government filed a motion under U.S.S.G. § 5K1.1 to allow a down ward departure from the Guidelines range for substan tial assistance. Still, Ressam did not resume coopera tion. The court set a hearing for April 27, 2005, but de cided on its own to give Ressam three more months in order to be able to give him as much credit as possible for cooperation. No additional cooperation was forth coming before the reconvened hearing in July. The dis trict court imposed a sentence of 22 years in custody and instructed the government "to allocate that according to the statutory minimums among the counts in consecutive and concurrent as necessary to arrive at a total of 22 years." It expressed no view on an appropriate Guide lines range, including the effect of the factors bearing on substantial assistance to authorities in § 5K1.1, and offered no explanation for imposition of the particular sentence in consideration of the factors in 18 U.S.C. § 3553(a).

The United States appeals the sentence, and Ressam cross-appeals his conviction on Count 9.

II

Ressam's cross-appeal boils down to what 18 U.S.C. § 844(h)(2) means when it punishes one who "carries an explosive during the commission of any felony which may be prosecuted in a court of the United States," with a mandatory term of imprisonment of 10 years. Does it criminalize carrying an explosive during the commission of another felony, or does it criminalize carrying an ex plosive during and in relation to that other felony? The answer matters in this case because the government offered no evidence that Ressam's carrying the explo sives in any way facilitated his falsifying the customs declaration form.

This is an issue of first impression for us, although the Third and Fifth Circuits have declined to interpret § 844(h)(2) as requiring that the explosives be carried in relation to the underlying felony. See United States v. Rosenberg, 806 F.2d 1169, 1179 (3d Cir. 1986); United States v. Ivy, 929 F.2d 147, 151 (5th Cir. 1991) (following Rosenberg in an alternative holding). As these courts see it, "the plain everyday meaning of 'during' is 'at the same time' or 'at a point in the course of.' It does not normally mean 'at the same time and in connection with. . . .' It is not fitting for this court to declare that the crime defined by § 844(h)(2) has more elements than those enumerated on the face of the statute." Rosenberg, 806 F.2d at 1178-79 (internal citation omit ted); Ivy, 929 F.2d at 151 (citing Rosenberg, 806 F.2d at 1177). But see Rosenberg, 806 F.2d at 1180-1183 (Hig ginbotham, J., dissenting).

Unlike our colleagues in other circuits, we do not write on a clean slate. We interpreted a similar provi sion in the firearms statute, 18 U.S.C. § 924(c), in United States v. Stewart, 779 F.2d 538, 539-540 (9th Cir. 1985), overruled in part on other grounds by United States v. Hernandez, 80 F.3d 1253, 1257 (9th Cir. 1996). Section 924(c) as written when Stewart committed his offense provided that it was a crime to "carr[y] a firearm unlaw fully during the commission of any felony. . . ." 18 U.S.C. § 924(c)(2) (1982). Later, in 1984, it was amended to substitute for the word "during" the phrase "during and in relation to." 18 U.S.C. § 924(c) (1985) (emphasis added). The word "unlawfully" was also deleted. Our review of the legislative history indicated that the new "in relation to" language was not intended to create an element of the crime that did not previously exist, but rather was intended to make explicit what had been im plicit before-that a relation between the firearm and the underlying felony was required. Stewart, 779 F.2d at 539-40. The legislative history also indicated that when "unlawfully" was eliminated, the "in relation to" language was added to allay concern that a person could be prosecuted for committing an entirely unrelated crime while in possession of a firearm, but the "in rela tion to" language did not alter the scope of the statute. Id. As then-Judge Kennedy explained, "the evident purpose of the [original] statute was to impose more severe sanctions where firearms facilitated, or had the potential of facilitating, the commission of a felony." Id. at 540. "That purpose necessarily implies some relation or connection between the underlying criminal act and the use or possession of the firearm." Id. Consequently, we interpreted the statute that applied to Stewart as if it contained the requirement that the firearm be pos sessed "during and in relation to" the underlying crime. Put differently, the relational requirement "has always been an implicit element of the crime even before Con gress amended § 924 to include the specific 'in relation to' language." United States v. Mendoza, 11 F.3d 126, 129 (9th Cir. 1993) (describing Stewart's holding).

While Rosenberg and Ivy were free to (and did) re ject Stewart's analysis of § 924(c), we cannot. Therefore, we must decide whether a relational requirement has always been an implicit element of § 844(h)(2), as well. The two sections have much in common, and we are mindful of the canon in pari materia which provides that similar statutes are to be interpreted in a similar manner unless legislative history or purpose suggests material differences. See, e.g., Fogerty v. Fantasy, Inc., 510 U.S. 517, 523-24, 114 S. Ct. 1023, 127 L. Ed .2d 455 (1994); John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 104-106, 114 S. Ct. 517, 126 L. Ed. 2d 524 (1993); U.S. West Comm., Inc. v. Hamilton, 224 F.3d 1049, 1053 (9th Cir. 2000).

Section 844 was enacted as part of Title XI of the Organized Crime Control Act of 1970. Pub. L. No. 91-452, 84 Stat. 922, 956. Its purpose was to align explo sives with the firearms provisions in § 924(c), and it was modeled after § 924(c). United States v. Mueller, 463 F.3d 887, 891 (9th Cir. 2006). The House Report ex plains that "Section 844(h) carries over to the explosives area the stringent provisions of the Gun Control Act of 1968 [codified at 18 U.S.C. § 924(c)] relating to the use of firearms and the unlawful carrying of firearms to commit, or during the commission of a federal felony." H.R. Rep. 91-1549, reprinted in 1970 U.S.C.C.A.N. 4007, 4046. Its original text was identical to the original fire arms counterpart that we considered in Stewart. Thus, the original version of § 924(c) provided:

Whoever-

(1) uses a firearm to commit any felony which may be prosecuted in a court of the United States, or

(2) carries a firearm unlawfully during the commis sion of any felony which may be prosecuted in a court of the United States . . .

And the original version of § 844(h) provided:

Whoever-

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

(2) carries an explosive unlawfully during the com mission of any felony which may be prosecuted in a court of the United States . . .

Congress amended § 844(h)(2) in 1988 by striking "unlawfully" in paragraph (2), as the 1984 revisions to § 924(c) had done. Pub. L. No. 100-690, § 6474(b).3 By contrast with the 1984 amendment to § 924(c), however, the word "during" was not replaced with "during and in relation to." The legislative history does not specifically say why "unlawfully" was struck, or why "and in relation to" was not added. The Senate Report simply indicates that the new version strengthened the penalty provi sions of § 844(h) for "using or carrying an explosive dur ing the commission of a federal felony, so as to bring it in line with similar amendments adopted in the Compre hensive Crime Control Act of 1984. . . ." S. Rep. at 17367.

Because in Stewart we did not think addition of the phrase "and in relation to" changed the scope of original § 924(c), we are hard-pressed now to say that its absence changes the scope of § 844(h)(2). In other words, accept ing that § 924(c) always had a relational element, as we must, § 844(h)(2) necessarily always had a relational element, too. For this reason, we cannot accord the same weight as the government, and the Third Cir- cuit, give to the fact that § 844(h)(2) was not altered as § 924(c) was to add "and in relation to" language.4

Judge Alarcón contends that Stewart has been un dercut by intervening authority. Yet neither Stewart's holding, nor the "theory or reasoning" underlying the decision, has been called into question by this court sit ting en banc or by the United States Supreme Court. The dissent's citation to Lamie v. United States Trustee, 540 U.S. 526, 538, 124 S. Ct. 1023, 157 L. Ed. 2d 1024 (2004)-a case interpreting a bankruptcy statute-as supervening authority is inapposite. Lamie did not ar ticulate a new rule of statutory interpretation; it did not construe § 844(h)(2) or § 924(c); and there was no prior construction of a similar statute to contend with. Nothing about its holding, reasoning, or mode of analy sis is irreconcilable with Stewart's determination that a relational element was always implicit in the phrase "carries a firearm . . . during." Accordingly, we are obliged to follow Stewart's construction of § 924(c), which served as the template for § 844(h). See Mueller, 463 F.3d at 891.

Given this interpretation, there is no real dispute that Ressam's conviction on Count 9 cannot stand. The government introduced ample evidence that Ressam falsely signed the customs form as Benni Noris and that he carried explosives in the trunk of his car. Ressam so concedes. However, the evidence adduced at trial does not show that the explosives "facilitated or played a role in the crime" of lying on the customs declaration. See Ninth Cir. Model Crim. Jury Instr. No. 8.65; Stewart, 779 F.2d at 540 (contrasting Stewart's case with circum stances showing a violation of § 924(c) as interpreted, such as "the firearm facilitated or had a role in the crime, such as emboldening an actor who had the oppor tunity or ability to display or discharge the weapon to protect himself or intimidate others, whether or not such display or discharge in fact occurred"). It is not enough for the government to prove that Ressam lied because he was smuggling explosives in the trunk of his car. Rather, the government must demonstrate that the ex plosives aided the commission of the underlying felony in some way. There is no evidence that the explosives emboldened Ressam to lie or that he used them to "pro tect himself or intimidate others." Id. Accordingly, we vacate Ressam's conviction as to Count 9 only.

III

The government believes that Ressam's sentence is unreasonable and seeks to have it vacated because the district court failed to balance the cooperation that Res sam provided against the magnitude of his crimes and his continued aid to terrorists by his failure to complete his promised assistance. We decline to address the mer its of the government's position for two reasons. First, Ressam's conviction on Count 9 having been reversed, his sentence on that count necessarily falls as well. The district court articulated no basis upon which we could infer whether its sentence would be the same, or differ ent, without a conviction on this count. We prefer to leave it to the district court in the first instance to arrive at an appropriate sentence on the remaining counts of conviction. Even more significantly, the law applicable to sentencing is in flux. We are rehearing two cases en banc, United States v. Carty, 453 F.3d 1214 (9th Cir. 2006) reh'g en banc granted, 462 F.3d 1066 (9th Cir. 2006), and United States v. Zavala, 443 F.3d 1165 (9th Cir. 2006) reh'g en banc granted, 462 F.3d 1066 (9th Cir. 2006), and the United States Supreme Court has granted writs of certiorari in Claiborne v. United States, 75 U.S.L.W. 3243, 3246 (U.S. Nov. 3, 2006) (No. 06-5618), and Rita v. United States, 75 U.S.L.W. 3243, 3246 (U.S. Nov. 3, 2006) (No. 06-5754), which will have a good deal to say about the sentencing process in the wake of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). As the district court should have the initial opportunity to impose a sentence consistent with evolving law, we leave it to that court's discretion to defer resentencing until the Supreme Court has decided Claiborne and Rita, or we have de cided Carty and Zavala.

REVERSED IN PART; VACATED IN PART and REMANDED.

ALARCÓN, Circuit Judge, concurring in part and dis senting in part:

I respectfully dissent from the majority's decision to reverse Count 9 of the Second Superceding Indictment. I also concur in the majority's decision to vacate the sen tence but on different grounds. I agree with the Gov ernment that the sentence imposed by the District Court was unreasonable and an extreme departure from the advisory Sentencing Guidelines.

I

Count 9 reads as follows:

On or about December 14, 1999, at Port Angeles, within the Western District of Washington, AHMED RESSAM knowingly carried an explosive during the commission of a felony prosecutable in a court of the United States, that is making a false statement to a U.S. Customs Inspector as charged in Count 5 herein. All in Violation of Title 18, United States Code, Section 844(h)(2)

Section 844(h)(2) provides as follows:

Whoever-. . . (2) carries an explosive during the commission of any felony which may be prosecuted in a court of the United States, . . . shall, in addition to the punishment provided for such felony, be sen tenced to imprisonment for 10 years.

In Count 5 of the indictment, Mr. Ressam was charged as follows:

On or about December 14, 1999, at Port Angeles, within the Western District of Washington, in a mat ter within the jurisdiction of the United States Cus tom Service, an agency of the United States, AHMED RESSAM did knowingly and willfully make a false, fraudulent, and fictitious material state- ment and representation; in that the defendant pre sented to the U.S. Customs inspectors a Customs Declarations Form # 6059B identifying himself as Benni Noris, whereas in truth and fact, as he then well knew, this statement was false in that his true name is AHMED RESSAM. All in violation of Title 18, United States Code, Section 1001.

The district court gave the following instruction to the jury concerning the elements that the Government was required to prove to demonstrate a violation of § 844(h)(2).

The defendant is charged in Count 9 of the indict ment with carrying an explosive during the commis sion of a felony in violation of Section 844(h)(2) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the gov ernment must prove each of the following elements beyond a reasonable doubt.

First, the defendant knowingly carried explosive ma terials; and

Second, the defendant committed the felony of mak ing a false statement to a U.S. Customs Inspector (as charged in Count 5 of the Indictment) while he was carrying those explosive materials.

In his opening brief, Mr. Ressam concedes that "[t]he government did present evidence that Mr. Res sam was carrying explosives in the trunk of the car he was driving at the time he completed and presented the customs form, and that Mr. Ressam falsely identified himself on the form." Opening Brief of Appellant at 18. Mr. Ressam does not argue that the words used by Con gress in § 844(h)(2) are ambiguous or lack plain mean ing.

The Supreme Court instructed in Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S. Ct. 2279, 57 L. Ed. 2d 117 (1978) that: "When confronted with a statute which is plain and unambiguous on its face, we ordi narily do not look to legislative history as a guide to its meaning." Id. at 184, 98 S. Ct. 2279 n.29. In United States v. Missouri Pac. R. Co., 278 U.S. 269, 49 S. Ct. 133, 73 L. Ed. 322 (1929), the Court stated: "where the language of an enactment is clear, and construction ac cording to its terms does not lead to absurd or impracti cable consequences, the words employed are to be taken as the final expression of the meaning intended." Id. at 278, 49 S. Ct. 133.

More recently, in Lamie v. United States Trustee, 540 U.S. 526, 124 S. Ct. 1023, 157 L. Ed. 2d 1024 (2004), Justice Kennedy, writing for the majority, stated:

The starting point in discerning congressional intent is the existing statutory text, and not the predeces sor statutes. It is well established that when the stat ute's language is plain, the sole function of the courts-at least where the disposition required by the text is not absurd-is to enforce it according to its terms. (internal citations and quotation marks omitted).

Id. at 534, 124 S.Ct. 1023.

Mr. Ressam argues that we must read the words "in relation to" into the text of § 844(h)(2). He contends that we must reverse because the court refused an in struction he submitted that states as follows:

The defendant is charged in Count 9 of the Indict ment with knowingly carrying an explosive during and in relation to a felony prosecutable in a court of the United States in violation of Section 844(h)(2) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the gov ernment must prove each of the following elements beyond a reasonable doubt.

First, the defendant committed the crime of making a false statement to a United States customs inspec tor as charged in Count 5 of the Indictment;

Second, the defendant knowingly carried an explo sive; and

Third, the defendant carried the explosive during and in relation to the false statement crime alleged in Count 5 of the Indictment.

A defendant takes such action in relation to the crime if the explosive facilitated or played a role in the false statements charge alleged in Count 5.

(emphasis added).

Mr. Ressam's proposed instruction would have re quired the District Court to add an element to § 844(h)(2) that does not appear in the statute enacted by Congress. Justice Kennedy, in his opinion in Lamie, rejected a similar notion:

Petitioner's argument stumbles on still harder ground in the face of another canon of interpretation. His interpretation of the Act-reading the word "at torney" in § 330(a)(1)(A) to refer to "debtors' attor neys" in § 330(a)(1)-would have us read an absent word into the statute. That is, his argument would result "not [in] a construction of [the] statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence, may be included within its scope." Iselin v. United States, 270 U.S. 245, 251, 46 S. Ct. 248, 70 L. Ed. 566 (1926). With a plain, non-absurd meaning in view, we need not proceed in this way. "There is a basic difference between filling a gap left by Congress' silence and rewriting rules that Congress has affirmatively and specifically enacted." Mobil Oil Corp. v. Higgin botham, 436 U.S. 618, 625, 98 S. Ct. 2010, 56 L. Ed. 2d 581 (1978).

Our unwillingness to soften the import of Congress' chosen words even if we believe the words lead to a harsh outcome is longstanding. It results from "def erence to the supremacy of the Legislature, as well as recognition that Congressmen typically vote on the language of a bill." United States v. Locke, 471 U.S. 84, 95, 105 S. Ct. 1785, 85 L. Ed. 2d 64 (1985) (citing Richards v. United States, 369 U.S. 1, 9, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962)).

540 U.S. at 538, 124 S. Ct. 1023. (emphasis added).

We lack the constitutional authority to add an ele ment to a criminal statute. That is Congress' function. Our role is merely to interpret what Congress has en acted.

II

This Court has not previously addressed the question whether a trial court must instruct a jury that, to convict under § 844(h)(2), the Government must prove beyond a reasonable doubt that the defendant carried explosives during and in relation to the commission of a felony which may be prosecuted in a court of the United States. The Third and Fifth Circuits have expressly rejected this contention.

In United States v. Rosenberg, 806 F.2d 1169 (3rd Cir. 1986), the Third Circuit affirmed a judgment of con viction for a violation of § 844(h)(2), wherein the trial court rejected the defendants' argument that the Gov ernment was required to present evidence of a specific connection between the carrying of explosives and the alleged felony. The Third Circuit reasoned as follows:

Section 844(h)(2) by its terms only requires that the government show that the defendant unlawfully car ried an explosive "during the commission of any fel ony." The plain everyday meaning of "during" is "at the same time" or "at a point in the course of." See, Webster's Third New International Dictionary 703 (1961). It does not normally mean "at the same time and in connection with. . . ." It is not fitting for this court to declare that the crime defined by § 844(h)(2) has more elements than those enumerated on the face of the statute. If Congress sees fit to add a rela tional element to § 844(h)(2), it is certainly free to do so, in the same manner that it added a relational ele ment to § 924(c). Until such time, we will hold that § 844(h)(2) has no relational element, and accord ingly, we now hold that the district court correctly denied the defendants' motion to dismiss Count 5.

Id. at 1178-79.

The Third Circuit's determination in Rosenberg that a federal court cannot read absent words into a statute is faithfully consistent with Justice Kennedy's statement in Lamie that federal courts cannot "rewrit[e] rules that Congress has affirmatively and specifically enacted." Lamie, 540 U.S. at 538, 124 S. Ct. 1023 (quoting Mobil Oil, 436 U.S. at 625, 98 S. Ct. 2010). In United States v. Ivy, 929 F.2d 147 (5th Cir. 1991) the Fifth Circuit, citing the Third Circuit's opinion in Rosenberg, "refuse[d] to judicially append the relation element to § 844(h)(2)." Id. at 151.

The Rosenberg decision was written twenty years ago. Since then, Congress has not amended § 844(h)(2) to add a relational element. Under our constitutional doctrine of the separation of powers, we cannot usurp Congress' authority.

III

The majority has refused to follow the Third Cir cuit's decision in Rosenberg, and the Fifth Circuit's opinion in Ivy, that we lack the authority to add an "in relation to" element to § 844(h)(2). Instead, the major ity asserts that it is "constrained" to apply this Court's opinion in United States v. Stewart, 779 F.2d 538 (9th Cir. 1985), overruled in part on other grounds by United States v. Hernandez, 80 F.3d 1253, 1257 (9th Cir. 1996), which read a relational element into 18 U.S.C. § 924(c). The term "constrain" is defined as "to force by stricture, restriction, or limitation imposed by nature, oneself, or circumstances and exigencies." Web ster's Third New International Dictionary 489 (1976). I do not agree with my colleagues that we are forced, by the law of this Circuit, to follow Stewart in construing the words expressly and unambiguously set forth by Congress in a separate statute.

[A] three-judge panel may not overrule a prior deci sion of the court. That proposition is unassailable so far as it goes, but it does not take into account the possibility that our prior decision may have been undercut by higher authority to such an extent that it has been effectively overruled by such higher au thority and hence is no longer binding on district judges and three-judge panels of this court. . . . We hold that the issues decided by the higher court need not be identical in order to be controlling. Rather, the relevant court of last resort must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.

Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc).

More recently, in Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006), Judge Berzon pointed out that "[w]e are 'bound not only by the holdings of [such inter vening] decisions but also by their mode of analysis.'" Id. at 1019. (quoting Gill v. Stern (In re Stern), 345 F.3d 1036, 1043 (9th Cir. 2003)). (internal quotations omit ted).

In Stewart, a three-judge panel of this Court deter mined that it had the authority to add an element to a criminal statute that was unambiguous by referring to legislative history. We stated: "We interpret [§ 924(c)] as if it contained the requirement that the firearm be possessed 'during and in relation to' the underlying of fense." 779 F.2d at 540. The Supreme Court's subse quent holding in Lamie that, where the language is plain, we cannot "read an absent word into the statute," 540 U.S. at 538, 124 S. Ct. 1023, undercuts our conclu sion in Stewart that we had the authority to add a rela tional element to § 924(c). Accordingly, we are con strained to apply the holding and mode of analysis set forth in Lamie and enforce § 844(h)(2) "according to its terms" and not to "rewrit[e] rules that Congress has affirmatively and specifically enacted." Lamie, 540 U.S. at 538, 124 S. Ct. 1023.

I would affirm the District Court's judgment of con viction with respect to Count 9 by employing the follow ing logical syllogism.

Section 844(h)(2) provides that "[whoever . . . car ries an explosive during the commission of any felony which may be prosecuted in a court of the United States . . . shall, in addition to the punishment provided for such felony, be sentenced to imprisonment for 10 years."

It is undisputed that Mr. Ressam was carrying ex plosives in the trunk of his car when he falsely stated in a Customs Declaration Form # 6059B that his name was Benni Noris in violation of 18 U.S.C. § 1001.

Therefore, Mr. Ressam is subject to the enhanced punishment prescribed in § 844(h)(2) because he was carrying an explosive during the commission of the crime set forth in § 1001.

 

1 The Homeland Security Act of 2002, Pub. L. No. 107-296, § 403, 116 Stat. 2135, transferred the U.S. Customs Service from the Treasury Department to the Department of Homeland Security. The agency is now known as U.S. Customs and Border Protection. We refer to the agency as the Customs Service because Ressam was apprehended prior to the reorganization.

2 Dahoumane, who was a fugitive at the time, was also charged in four of the counts. Algerian security services arrested Dahoumane in March 2001.

3 The current version of § 844(h) provides, in pertinent part:

(h) Whoever-

(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, 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 impri sonment for 10 years. In the case of a second or subsequent con viction under this subsection, such person shall be sentenced to imprisonment for 20 years.

4 The government's brief argued that, unlike § 924(c), § 844(h)(2) never contained a requirement that the explosive be carried "unlaw fully during commission of any felony." However, this assertion is in correct, as the government has subsequently acknowledged.

APPENDIX B

 

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Western District of Washington, Seattle

Nos. 05-30422, 05-30441
D.C. No. CR-99-00666-001-JCC
UNITED STATES OF AMERICA,
PLAINTIFF-APPELLANT-CROSS-APPELLEE
AHMED RESSAM, ALSO KNOWN AS
BENNI ANTOINE NORIS, DEFENDANT-APPELLEE- CROSS-APPELLANT

Filed: June 6, 2007

ORDER

Before: ARTHUR L. ALARCÓN, PAMELA ANN RYMER, and MARSHA S. BERZON, Circuit Judges.

Order;

Dissent by Judge O'SCANNLAIN

A majority of the panel has voted to deny the peti tion for rehearing and to reject the suggestion for re hearing en banc. Judge Alarcón would grant the peti tion for rehearing and accept the suggestion for rehear ing en banc.

The full court has been advised of the suggestion for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. How ever, the matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consid eration. Fed. R. App. P. 35.

The petition for rehearing is DENIED and the sug gestion for rehearing en banc is REJECTED.

O'SCANNLAIN, Circuit Judge, dissenting from the denial of rehearing en banc, joined by KLEINFELD, GOULD, BYBEE, CALLAHAN and BEA, Circuit Judges:

With all due respect to my colleagues, this high-pro file case, involving an individual trained in Afghanistan by al-Qaeda and convicted of conspiring to detonate ex plosives at Los Angeles International Airport as part of a terrorist attack, is an ideal candidate for rehearing en banc. In United States v. Ressam, 474 F.3d 597 (9th Cir. 2007), a panel majority concluded that a conviction un der 18 U.S.C. § 844(h)(2) requires that explosives be carried not only during a felony, as the statute says, but also in relation to that felony, which the statute does not say. The panel thus reversed one count of conviction of "Millenium Bomber" Ahmed Ressam. I dissent from the denial of rehearing en banc because United States v. Stewart, 779 F.2d 538, 539-40 (9th Cir. 1985), the two-decade old decision of our court upon which the panel relied, does not compel the result reached, and, further, by extending Stewart and reading the "in rela tion to" language into § 844(h)(2), we have not only usurped the congressional function, but have also cre ated a split of authority with every other United States Court of Appeals that has addressed this question. See Fed. R. App. P. 35(b)(1)(B).

I

The facts and circumstances surrounding al-Qaeda trainee Ahmed Ressam's plot to detonate explosives at Los Angeles International Airport and his capture as he entered the United States are well-detailed in the panel opinion. Ressam, 474 F.3d at 599-601. In brief, Ressam and an associate loaded the trunk of a rental car with explosives, electronic timing devices, detonators, fertil izer, and aluminum sulfate, and drove to a ferry termi nal at Twassen, British Columbia. Id. at 600. Ressam drove the rental car aboard the ferry, which later that day docked in Port Angeles, Washington. When Ressam attempted to drive his car off, a customs inspector stopped him for inspection. Id. After the customs offi cer became suspicious and subjected Ressam's vehicle to a more intrusive search, inspectors discovered some of the bomb's component parts. Once the car and all its contents were inventoried and tested, authorities real ized that Ressam had all the materials for a full scale terrorist attack. Id. Ressam was indicted and convicted on nine counts, including one count of carrying an explo sive during the commission of a felony, in violation of 18 U.S.C. § 844(h)(2). Id. at 600-01.

II

The critical legal issue in this appeal is whether Res sam's conviction for carrying an explosive during the commission of a felony must be reversed because the government did not also prove that Ressam was carry ing the explosives in relation to the underlying felony (the "relational element"), which in this case the gov- ernment designated as making a false statement in a customs declaration. See 18 U.S.C. § 844(h) ("Whoever . . . carries an explosive during the commission of any felony which may be prosecuted in a court of the United States . . . shall, in addition to the punishment pro vided for such felony, be sentenced to imprisonment for 10 years.").

The panel reasoned that our decision in Stewart, 779 F.2d at 539-40 compelled it to conclude that 18 U.S.C. § 844(h)(2) contains a relational element. I respectfully disagree. Then-Judge Kennedy's majority opinion in Stewart construed 18 U.S.C. § 924(c), which made un lawful the carrying of a firearm during the commission of a felony. At the time of Mr. Stewart's conviction, § 924(c) did not include an explicit relational element. See Stewart, 779 F.2d at 539. But by the time his case reached our court on appeal, "Congress [had] revised section 924(c), combining former subsections 924(c)(1) and 924(c)(2). The 1984 amendment substituted for the word 'during' the phrase 'during and in relation to.'" Id.

In determining whether the jury was properly in structed at Mr. Stewart's trial, our court focused almost entirely upon the legislative history of the 1984 amend ment. The court's reading of the legislative history "indicate[d] the 'in relation to' language was not in tended to create an element of the crime that did not previously exist, but rather was intended to make clear a condition already implicit in the statute." Id. Thus, it concluded, because the relational element existed at the time of Stewart's trial, his jury instruction was in error.

But critically, there is no similar legislative history as to § 844(h)(2) because Congress never amended that statute to include the language that it added to § 924(c).1 As the Third Circuit reasoned in reaching a conflicting conclusion than that of our Ressam panel, "even if the Stewart court was correct in its analysis of why Con gress amended § 924(c), Congress has not seen fit to modify § 844(h) in the same manner." United States v. Rosenberg, 806 F.2d 1169, 1178 (3d Cir. 1986).

Indeed, it is telling that when Congress did amend § 844(h)(2) in 1988, it did not add the relational lan guage. At that time, Congress had before it our circuit's decision in Stewart, 779 F.2d at 539-40, and the Third Circuit's decision in Rosenberg, 806 F.2d at 1179. Rosenberg had rejected Stewart's general reasoning and its reasoning as specifically applied to § 844(h)(2), in stead relying upon the plain, unambiguous language of that section. With these divergent decisions before it, Congress chose in 1988 not to add the "in relation to" language to § 844(h)(2). As the Supreme Court has ex plained, "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclu sion or exclusion." Russello v. United States, 464 U.S. 16, 23 (1983). This presumption of a knowing and inten tional Congress in my view compels us to recognize that we are not "constrained" by Stewart's reasoning in de ciding the proper interpretation of § 844(h)(2).

III

But even were the panel constrained by Stewart, I think it appropriate to rehear this case en banc because our holding that § 844(h)(2) includes a relational ele ment is in conflict with every other circuit which has had occasion to consider the question. See Rosenberg, 806 F.2d at 1178; United States v. Ivy, 929 F.2d 147 (5th Cir. 1991); United States v. Jenkins, 2005 WL 3440416, **3-5 (6th Cir. 2005) (unpublished).2

The main thrust of our sister circuits' decisions is that the plain language of § 844(h)(2) says nothing about a relational element, but only requires carrying the ex plosives during the commission of a felony. As Rosen berg stated:

Section 844(h)(2) by its terms only requires that the government show that the defendant unlawfully car ried an explosive "during the commission of any fel ony." The plain everyday meaning of "during" is "at the same time" or "at a point in the course of." See, Webster's Third New International Dictionary 703 (1961). It does not normally mean "at the same time and in connection with. . . ." It is not fitting for this court to declare that the crime defined by § 844(h)(2) has more elements than those enumerated on the face of the statute. If Congress sees fit to add a re lational element to § 844(h)(2), it is certainly free to do so, in the same manner that it added a relational element to § 924(c).

806 F.2d at 1178-79.

Further, as the Supreme Court more recently ex plained, when interpreting a statute "[w]ith a plain, nonabsurd meaning in view," we should not undertake to add missing words or elements, or to soften the im pact of Congress' enactments. Lamie v. United States Trustee, 540 U.S. 526, 538 (2004). According to the Court, "[o]ur unwillingness to soften the import of Con gress' chosen words even if we believe the words lead to a harsh outcome is longstanding. It results from 'defer ence to the supremacy of the Legislature, as well as rec ognition that Congressmen typically vote on the lan guage of a bill.'" Id. (quoting United States v. Locke, 471 U.S. 84, 95 (1985) (internal citations omitted)). As Judge Alarcón stated in his dissent, "Mr. Ressam's pro posed instruction would have required the District Court to add an element to § 844(h)(2) that does not ap pear in the statute enacted by Congress." Ressam, 474 F.3d at 606 (Alarcón, J., dissenting in part). It remains to be seen how, in practice, this additional requirement will impact the ability of prosecutors in this circuit to obtain convictions in explosives and terrorism cases. But in my view, Lamie confirms that the wisdom of such additions are firmly left to the determination of the leg islative branch.

The reasoning and restraint of Lamie and of our sister circuits' decisions stand in stark contrast to Stew art and the panel decision in Ressam.3 The great ad vantage of rehearing this appeal before our en banc court is that we could decide the proper interpretation of § 844(h)(2) and overrule Stewart, even if it is true that decision has left our circuit with something less than a "clean slate." Ressam, 474 F.3d at 602.

IV

Regardless of whether Stewart was correctly de cided, I would quite simply not allow that decision to control the outcome of this case without en banc review. Because the panel's decision to vacate "Millennium Bomber" Ahmed Ressam's conviction under 18 U.S.C. § 844(h)(2) is in square conflict with the reasoning of our sister circuits and with the cautionary pronouncements of the Supreme Court, we should have reheard this case en banc. I respectfully dissent from the court's decision otherwise.

1 It should go without saying that this may have been a deliberate omission. The carrying of an explosive during the commission of a crime greatly increases the risk of injury or death to others, more so than even a firearm. Plus, it is more likely in the case of explosives than firearms that the "weapon" may go off accidentally. In short, as a policy matter, Congress may have had good reasons for not amending § 844(h)(2) as it amended the firearms statute.

2 The government also contends that the Eighth Circuit's decision in United States v. King, 230 F.3d 1364 (8th Cir. 2000) (unpublished), conflicts with Ressam, but I think King's reasoning too difficult to follow and too conclusory to give it much weight.

4 I think it is reasonable to question the validity of Stewart' s rea soning even though the statute has been amended to include the rela tional element. The reliance in that opinion upon the legislative history of an amendment to determine the scope of the pre-amendment statute is questionable. See United States v. Price, 361 U.S. 304, 313, 80 S. Ct. 326, 4 L. Ed. 2d 334 (1960) ("[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one."). And other courts have not read the legislative history relied upon by Stewart to be so clear. See Rosenberg, 806 F.2d at 1178 ("[W]e do not find that the legislative history to the 1984 amendment 'strongly implied' that the 'in relation to' language did not affect the scope of the statute as originally drafted. At most, we find that the legislative history fails to explain why the 'in relation to' phrase was added to the statute."); see also Stewart, 779 F.2d at 540 (noting that the legislative history upon which it relied was "sparse" and "not entirely free of ambiguity").

APPENDIX C

1. 18 U.S.C. 844(h) and (j) (2000) provides:

Penalties

(h) Whoever-

(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,

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.

* * * * *

(j) For the purposes of subsections (d), (e), (f), (g), (h), and (i) of this section and section 842(p), 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, 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.

* * * * *

2. 18 U.S.C. 844(h) (1982) provides:

Penalties

* * * * *

(h) Whoever-

(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 unlawfully during the commission of any felony which may be prosecuted in a court of the United States.

shall be sentenced to a term of imprisonment for not less than one year nor more than ten years. In the case of the second or subsequent conviction under this sub section, such person shall be sentenced to a term of imprisonment for not less than five years nor more than twenty-five years, and, notwithstanding any other provision of law, the court shall not suspend the sen tence of such person or give him a probationary sen tence.

* * * * *

3. 18 U.S.C. 924(c)(1) (2000) provides:

Penalties

(C)(1)(A) Except to the extent that a greater mini mum 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 traffick ing crime (including a crime of violence or drug traffick ing 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 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.

(B) If the firearm possessed by a person convicted of a violation of this subsection-

(i) is a short-barreled rifle, short-barreled shot gun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or

(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of im prisonment of not less than 30 years.

(C) In the case of a second or subsequent conviction under this subsection, the person shall-

(i) be sentenced to a term of imprisonment of not less than 25 years; and

(ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to impri sonment for life.

(D) Notwithstanding any other provision of law-

(i) a court shall not place on probation any person convicted of a violation of this subsection; and

(ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other terms of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.

* * * * *

4. 18 U.S.C. 924(c) (1982) provides:

Penalties

* * * * *

(c) Whoever-

(1) uses a firearm to commit any felony for which he may be prosecuted in a court of the United States, or

(2) carries a firearm unlawfully during the com mission of any felony for which he may be prosecuted in a court of the United States,

shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than ten years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to a term of imprisonment for not less than two nor more than twenty-five years and, notwith standing any other provision of law, the court shall not suspend the sentence in the case of a second or sub sequent conviction of such person or give him a proba tionary sentence, nor shall the term of imprisonment imposed under this subsection run concurrently with any term of imprisonment imposed for the commission of such felony.

* * * * *