United States v. Graham, No. 09-2819-cr (2d Cir. August 15, 2012) (Cabranes, Livingston, Carney, CJJ)
Title 18, U.S.C. § 844(h) makes it a separate offense to use “an explosive” to commit a federal felony. During an attempted extortion of one of his fellow-gang members – a dispute over some robbery proceeds – defendant Graham fired a cartridge from his 9-millimeter semi-automatic into the ground. A jury convicted defendant Graham under this section, amongst other offenses; his 50-year sentence included the ten-year mandatory consecutive sentence that the statute requires.
On appeal, however, the circuit agreed that the single cartridge in his semi-automatic handgun did not constitute an “explosive.” It reversed the conviction on the § 844(h) count and remanded the case for resentencing.
Superficially, it would seem like firing a bullet might well trigger the statute (bad pun, I know). Section 844(j) defines “explosive” for purposes of § 844(h) as, …