A thermal lance may be hot enough to cut metal but that doesn’t make it fire. The 9th U.S. Circuit Court of Appeals refused to allow 10 years to be added to a prison term for use of fire to commit a felony, when the “fire” is the thermal lance.
Three men were convicted of bank theft for using the tool to cut into an ATM and steal the money. In a 2-1 vote, the 9th Circuit, held their sentences could not be extended by the consecutive 10 years mandated when fire is used in a felony.
Samuel Eaton hatched a plan to rob the Los Angeles Federal Credit Union in El Monte using the thermal device to cut open the back of the ATM. He was helped by Christopher Williams, Clinton Thompson III and Tavrion Dawson.
They took $79,000.
Judge Stephen Reinhardt pointed out no fire alarms went off, no structural damage was done to the building and the men sprayed water on the ATM to avoid any risk of fire.
“We conclude that use of a thermal lance tool – designed to cut through metal using extreme heat, not fire – does not fall within the ‘ordinary, contemporary and common meaning’ of ‘uses fire,’” Reinhardt wrote. He was joined by visiting Judge Donald Molloy of Montana.
In dissent, Judge Mary Murguia sided with the government that fire should be defined as the chemical process of combustion involving heat, light and a combination of smoke and flame.
Case: U.S. v. Eaton, No. 11-50081