Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 99 CR 158--S. Hugh Dillin, Judge.
Before Easterbrook, Ripple, and Williams, Circuit Judges.
The opinion of the court was delivered by: Williams, Circuit Judge.
James Colvin was convicted of three fire-related felonies and of carrying a firearm in the commission of a felony, all arising out of his role in a cross-burning. Colvin challenges his 18 U.S.C. sec. 844(h)(1) conviction on double jeopardy grounds but, in our view, the Double Jeopardy Clause does not prevent the application of sec. 844(h)(1) to fire-related felonies because Congress clearly intended the multiple punishment. Colvin also asks us to vacate his 18 U.S.C. sec. 924(c) sentence for carrying a firearm in the commission of a felony because the district court failed to submit the firearm type to the jury. However, he failed to object below and cannot withstand plain error review. Therefore, we affirm.
Colvin and two of his acquaintances, Travis Funke and Lee Mathis, constructed a wooden cross in his garage. They doused the cross with flammable liquids and loaded it into Colvin's truck. The three then drove to the home of Luis Ortiz and set up the cross in his front yard. Mathis set the cross on fire while Colvin sat in his truck and watched. Funke, standing near the truck, asked Colvin to hand him one of the two guns lying in the truck, in case someone came out. After some initial reluctance, Colvin handed him a gun. Fortunately, no one came out of the home and the guns were never used.
Some time later, Colvin reported to the local police that two of his guns had been stolen from his truck, one of which he claimed was an "SKS folding stock semi-automatic handgun." By the time the police responded to his report, Funke and one of his co-workers had claimed responsibility for the theft and returned the guns to Colvin. After Colvin, Funke, and Mathis were arrested for the cross-burning, the government took these guns into custody.
Funke and Mathis entered into plea agreements with the government and received reduced sentences for agreeing to testify against Colvin, who had elected to go trial. At trial, the guns confiscated from Colvin were entered into evidence. He was ultimately convicted of: (1) intimidation and interference with the exercise of housing rights on the ba sis of race (42 U.S.C. sec. 3631); (2) conspiracy to threaten or intimidate persons in the free exercise or enjoyment of housing rights (18 U.S.C. sec. 241); (3) use of fire in the commission of a felony (18 U.S.C. sec. 844(h)(1)); and (4) use or carrying of a firearm in the commission of a felony (18 U.S.C. sec. 924(c)). The district court sentenced him to 264 months' imprisonment, including two concurrent 24-month sentences on the sec. 3631 and sec. 241 charges and two 120-month sentences on the sec. 844(h)(1) and sec. 924(c) charges, both to run consecutive to the sec. 3631 and sec. 241 sentences. He now challenges two of the sentences imposed.
Colvin first objects, on double jeopardy grounds, to the imposition of a consecutive sentence under 18 U.S.C. sec. 844(h)(1) for the use of fire in the commission of a felony (here, either substantive cross-burning under 42 U.S.C. sec. 3631 or conspiracy to interfere with housing rights under 18 U.S.C. sec. 241). Because sec. 844(h)(1) clearly expressesCongress' intent to cumulatively punish the felonious use of fire, there is no double jeopardy violation. Second, he challenges the district court's failure to submit the firearm type to the jury. We agree that the failure to do so was error, but do not believe the error was plain error because no manifest injustice resulted.
A. Fire-Related Felonies and 18 U.S.C. sec. 844(h)(1)
The Double Jeopardy Clause of the Fifth Amendment protects individuals from being subjected to trial and possible conviction more than once for the same offense. Missouri v. Hunter, 459 U.S. 359, 365 (1983). However, for multiple sentences imposed in a single trial, "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Id.; see also generally United States v. Handford, 39 F.3d 731, 735 (7th Cir. 1994) (explaining why the Double Jeopardy Clause has been interpreted in this way). Our focus, therefore, is on whether Congress intended to authorize the cumulative punishment of fire-related felonies such as cross-burning under 18 U.S.C. sec. 844(h)(1). See Hunter, 459 U.S. at 366-67.
We have previously held that Congress intended for fire-related felonies to serve as predicates for application of the sec. 844(h)(1) enhancement, which provides that "whoever uses fire . . . to commit any felony . . . shall, in addition to the punishment provided for such felony, be sentenced to imprisonment for 10 years . . . [not to] run concurrently with any other term of imprisonment." See Blacharski v. United States, 215 F.3d 792 (7th Cir. 2000); United States v. Hartbarger, 148 F.3d 777 (7th Cir. 1998); United States v. Hayward, 6 F.3d 1241 (7th Cir. 1993). In Hartbarger and Hayward, we held that the "any felony" language alone expressed Congress' intent to reach fire-related felonies. See Hartbarger, 148 F.3d at 785; Hayward, 6 F.3d at 1246. Our decision in Blacharski rested on the "in addition to" and "shall not run concurrently" language.*fn1
Colvin argues, however, that the language we relied upon in Hartbarger, Hayward, and Blacharski does not clearly express Congress' intent to authorize the multiple punishment of fire-related felonies as required by the Supreme Court's decision in Busic v. United States, 446 U.S. 398 (1980). The Busic court, interpreting an analogous statute, held that its "any felony," "shall [be] in addition to," and "shall not run concurrently" language was insufficiently clear to override the presumption that Congress did not enact two statutes proscribing the same offense. Busic, 466 U.S. at 405 (interpreting 18 U.S.C. sec. 924(c)'s statutory enhancement for use of a firearm in the commission of a felony); see also Simpson v. United States, 435 U.S. 6, 12-13 (1978). The Court reasoned ...