Tuesday, September 03, 2013

US v. Eaton, No. 11-50081 (8-29-13) (Reinhardt with Molly, D.J.; dissent by Murguia).

Betcha you never heard of a "thermal lance"?  I didn't until this case, a win for the defendant on a sentencing enhancement issue,   A thermal lance is a tool designed to cut through metal using extreme heat (the opinion explains the mechanics--pressurized oxygen, steel pipes, magnesium rods, a large battery, striker plates, and a pistol-like nozzle with flickering flame or sparks).  It was used to cut open an ATM (clever).  But is the high heat a fire?  If a fire, then using it to commit bank larceny results in a mandatory sentence under 18 USC 844.   If not a fire, then the enhancement does not apply.    The 9th held that it wasn't fire.  "Fire" is not defined in the statute, but it is not a thermal lance because fire is understood to be flames that burn in a sustained manner and not heat.  Sparks were incidental.  Dissenting, Murguia adopts the gov't's definition of fire as a chemical process of combustion involving light and heat  and smoke and flame.  Murguia says that a common sense understanding of a thermal lance is using fire.


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