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‘BOOM’ TIMES IN THE 9TH CIRCUIT

In 1990, Richard Mathews set a bomb to blow up the leader of a  motorcycle gang that has expelled him (probably not for being a pacifist).

Unfortunately for everyone (except the gang leader), the bomb blew up a passerby instead of its target, seriously injuring him.

Rick was convicted of maliciously damaging property by means of an explosive in violation of 18 U.S.C. § 844(i) and of using or carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1). (In the federal government’s world, a “firearm” under § 924(c) includes a “destructive device” such as a pipe bomb filled with black powder and ball bearings).

Rick got 135 months for the § 844 violation and a mandatory 360-month consecutive sentence for the § 924(c).

Last week, the 9th Circuit vacated Rick’s § 924(c) conviction.

A conviction under § 844(i) is not categorically a crime of violence, the Circuit said, and thus cannot serve as a predicate crime for a § 924(c) conviction. Section 924(c) defines a crime of violence as an offense committed against “the person or property of another.” However, the 9th observed, a person can be convicted under § 844(i) for “using an explosive to destroy his or her own property.” As such, Section 844(i) “criminalizes conduct that falls outside Section 924(c)’s definition of ‘crime of violence.’”

The average Joe or Jane would think that blowing someone up with a homemade is very much a “crime of violence.” Even the Circuit noted,

No doubt it is strange to classify placing a bomb in an alleyway for the purpose of causing harm to another person or their property as not a crime of violence, particularly where the bomb was picked up by an innocent bystander who was seriously injured by the detonation. But that is what the law requires of us in this case. 

Rick is probably not going home any time soon. The district court will be free to adjust his § 844(i) sentence – which can span from 10 to 40 years – to achieve nearly the same end.

United States v. Mathews, Case No. 19-56110, 2022 U.S. App. LEXIS 16167 (9th Cir, June 13, 2022)

– Thomas L. Root