U.S.C. 844 (h) prescribes a mandatory sentence for anyone who “carries an explosive during the commission of a felony.” The defendant, trained by Al Queda, attempted to enter the United States but was arrested when he falsely identified himself during a border inspection. A search of his vehicle revealed explosives. Convicted in District Court on multiple counts, he appealed to the Ninth Circuit alleging U.S.C. 844 (h) required a “relationship” between the underlying felony (false declaration) and “[carrying] explosives.” After an extensive exegesis of the statute, the Ninth Circuit panel held a “relationship” between the crime of submitting a false declaration and carrying explosives did not exist ; U.S. v. Ressam, 474 F.3d 597 (9th Cir. 2007). Sentence on this count vacated.
Conceding that other Circuits had read the statute differently, the panel decided its own precedents in statutory interpretation precluded them from reaching a different result. The Third and Fifth Circuits had held that the word “during” the commission of a felony is self-explanatory. It would seem so. Five judges dissented from this opinion. The Supreme Court reversed and remanded: See, Blog, 128 S.Ct.1858 (2008)reported on May 20 2008.
After reversal, the 9th Circuit remanded the sentence; the rial court imposed the same sentence; the 9th Circuit remanded amd transferred the case to a different judge; 629 F.3d 793 (9th Cir.2008).