OPINION
ENSLEN, District Judge.
The matter before the Court is the sentencing of defendant David Quigley. When Mr. Quigley was nineteen years of age, he and two other defendants assembled pipe bombs with timing devices and/or fuses. These pipe bombs were then placed under motor vehicles, each time at approximately 1:00 a.m., and detonated for the purpose of damaging or destroying the vehicles. On one occasion, Mr. Quigley picked up a bomb the defendants constructed and it detonated in his hand, injuring him and damaging his parents’ home. One of the vehicles the defendants damaged was a station wagon used by a business to transport mail to and from the United States Post Office, rendering it a vehicle used in interstate commerce.
On April 20, 1992, Mr. Quigley was found guilty by jury verdict of Counts One through Nine of an original ten count indictment.
All of the counts concerned the creation, possession, and/or registration of an illegal firearm with the exception of Counts Four and Five, which contain the statutes at issue in this opinion. Count Four (Aiding and
Abetting in the Detonation of a Vehicle) charged violation of 18 U.S.C. § 844(i), and Count Five (Aiding and Abetting in the Use, Possession and Carrying of a Destructive Device During the Commission of a Crime of Violence) charged violation of 18 U.S.C. § 924(c).
In accordance with the Sentencing Guidelines, Counts 1-4 and 6-9 were grouped, producing a sentencing range of 41-51 months. In addition, Count 5, 18 U.S.C. § 924(c), calls for a mandatory sentence of 30 years. Therefore, upon initial calculation, the sentencing range for malicious destruction of motor vehicles with a pipe bomb is between 33 years and 5 months and 34 years and 3 months. However, I have determined that Mr. Quigley may not be sentenced under 18 U.S.C. § 924(e). The relationship between 18 U.S.C. § 844(i) and 18 U.S.C. § 924(c) is an issue of first impression in the Sixth Circuit.
The Statutes
18 U.S.C. § 844(i) states:
Whoever maliciously damages or destroys, Or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than ten years or fined not more than $10,000, or both.
It is important to note that while 844(i) contains an enhancement penalty if injuries or death result from the fire or explosion, it does not contain an “enhancement” for use of an explosive. The means of destruction, use of fire or an explosive, is defined as an element of the crime.
18 U.S.C. § 924(c)(1) states:
Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle, or short-barreled shotgun to imprisonment for ten years, and if the firearm is a machine gun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years_ Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence or the drug trafficking crime in which the firearm was used or earned. No person sentenced under this subsection shall be eligible for parole during the term of imprisonment herein.
§ 924(e)(3) defines “crime of violence” as a felony which has as an element of the use, attempted use, or threatened use of force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense.
§ 844(i) Is An Insufficient Predicate for § 924(c)
The first reason I believe that Mr. Quigley cannot be sentenced under § 924(c) in this case is based on no intrinsic failing of either § 844(i) or § 924(c). Instead, it is based on their precise relationship to one another in this case: that of predicate offense and compound offense. My contention is simply that these two particular statutes may not be juxtaposed.
Several circuits have held that § 924(c) authorizes cumulative punishment for crimes in which the use of a weapon provides an enhanced penalty, or in which it is not necessary to prove the use of a weapon in order to establish a violation of the statute. These eases further, stand for the proposition that Congress’ authorization of cumulative punishment in these circumstances is constitutional.
E.g., United States v. Powell,
894 F.2d 895 (7th Cir.),
cert. denied,
495 U.S. 939, 110 S.Ct. 2189, 109 L.Ed.2d 517 (1990) (drug trafficking);
United States v. Lanzi,
933 F.2d 824 (10th Cir.1991) (bank robbery);
United States v. Browne,
829 F.2d 760 (9th Cir.1987),
cert. denied,
485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988) (bank robbery);
United States v. Shavers,
820 F.2d 1375 (4th Cir.1987),
aff'd after remand,
842 F.2d 1293 (4th Cir.1988) (bank robbery);
United States v. York,
830 F.2d 885 (8th Cir.1987),
cert. denied,
484 U.S. 1074, 108 S.Ct. 1047, 98 L.Ed.2d 1010 (1988) (bank
robbery); United States v. Springfield,
829 F.2d 860 (9th Cir.1987) (involuntary manslaughter).
I do not question these holdings. However, none of the opinions cited above address the novel circumstance presented by this case: the interaction between § 924(c) and a statute which makes the use of a particular weapon
an element
of the underlying offense, such that if no weapon is used, there is no violation
of
the statute.
§ 924 clearly defines a crime separate from the underlying offense.
Simpson v. United States,
435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). Therefore, an underlying crime such as § 844(i) is not a lesser included offense of § 924(e). Instead, the relationship between § 924(c) and its underlying offenses is that of compound offense and predicate offense.
§ 844(i) is not a proper predicate offense for § 924(c). Chief Justice Rehnquist explained why this permutation is impermissible when he used § 924(c) to illustrate a point concerning statutory construction and the rule of
Blockburger v. United States,
284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. In
Whalen v. United States,
445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), then Justice Rehnquist stated:
[T]he Blockburger test, although useful in identifying statutes that defined greater and lesser included offenses in the traditional sense, is less satisfactory, and perhaps even misdirected, when applied to statutes defining ‘compound’ and ‘predicate’ offenses. Strictly speaking, two crimes do not stand in the relationship of greater and lesser included offenses unless proof of the greater necessarily entails proof of the lesser.... On the other hand, two statutes stand in the relationship of compound and predicate offenses when one statute incorporates several other offenses by reference and compounds those offenses
if a certain additional element is present.
To cite one example, 18 U.S.C. 924(c)(1) states that ‘[wjhoever ... uses a firearm to commit any felony for which he may be prosecuted in a court of the United States ... shall ... be sentenced to a term of imprisonment for not less than one year nor more than ten years.’ Clearly, any one of a plethora of felonies could serve as the predicate for a violation of § 924(c)(1).
Id.
at 708-09, 100 S.Ct. at 1446-47 (Rehnquist, J., dissenting) (emphasis added). Therefore, according to Chief Justice Rehnquist, § 924(c) is a “compound” offense. Although many felonies may serve as its predicate, § 924(c) cannot compound predicate offenses unless an
additional element
is present. The additional element in the case of § 924(c) is a firearm, as is the case when the predicate offense is robbery or drug trafficking.
Therefore, while I agree that “in the ease of § 924(c)(1) Congress made its intention explicit, stating unequivocally that the pun
ishment for violation of that statute should be imposed ‘in addition to the punishment provided for the commission of [the predicate] felony’ ”,
Whalen,
445 U.S. at 709, 100 S.Ct. at 1447 (Rehnquist, J. dissenting), § 844(i) is not a proper predicate felony to be used in conjunction with § 924(c). In the case of § 844(i), § 924(c) adds no additional element: the use of an explosive is an element of the predicate offense. As a result, I conclude that § 924(c) may not be applied in order to compound a § 844(i) offense.
This holding is supported by the analysis of
Garrett v. United States,
471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985). In that case, the Court was “required ... to consider the relationship between substantive predicate offenses and a CCE [continuing criminal enterprise statute, 21 U.S.C. § 848].”
Id.
at 794-95, 105 S.Ct. at 2419. The Court first concluded that Congress intended CCE to be a separate offense, and that it intended to permit prosecution- for both the predicate offenses and the CCE offense. It then went on to determine that a prosecution for a CCE offense after an earlier prosecution for a predicate offense does not violate the Double Jeopardy Clause of the Fifth Amendment. The linchpin of its analysis on this point was that
“the CCE offense is not, in any common sense or literal meaning of the term, the ‘same’ offense as one of the predicate offenses ....
[In addition to fínding commission of the substantive offense,
] [t]he CCE offense requires the jury to find that the predicate offense was a part of a continuing series of predicate offenses undertaken by the defendant in concert with five or more persons, that the defendant occupied the position of an organizer or manager, and that the defendant obtained substantial income from the continuing series of violations.”
Id.
at 786, 105 S.Ct. at 2415 (emphasis added).
As was the case with the statutes in
Garrett,
the typical § 924(c) predicate offense (a crime of violence or a drug trafficking crime) does not require proof of the use of a weapon to establish the crime. Application of the compounding statute requires further proof: the use of a weapon. However, § 844(i) is unique among § 924(c) predicates, because the use of an explosive does not “add” anything to the crime. Instead, use of an explosive is an original element of the crime Congress chose to define. Therefore, § 844(i) may not be used as a predicate offense for § 924(c).
The Multiplicity Argument
One way of identifying the defect in the charges against Mr. Quigley I have discussed above is to say that § 844(i) is an improper predicate offense for § 924(c). Another way of expressing why § 924(c) cannot be used in conjunction with § 844(i) is to say that the use of § 924(c) in this situation violates the prohibition against multiplicitous charges. According to the Sixth Circuit,
the ‘multiplicity’ doctrine [] is related to double jeopardy multiple punishment analysis .... Multiplicity is the charging of a single offense in several counts or in several charging instruments. The danger of a multiplicitious indictment is that it may violate double jeopardy by resulting in multiple sentences or punishments for a single offense,
United States v. Hearod,
499 F.2d 1003, 1005 (5th Cir.1974), or that it may prejudice the defendants by causing the jury to convict on a five count solely on the strength of evidence on the counts remaining.
Wieland v. Brown,
1990 WL 172689 at *5, 1990 U.S.App. LEXIS 19856 at *14 (unpublished opinion of the 6th Cir.).
See also, United States v. Kennedy,
726 F.2d 546, 547-48 (9th Cir.),
cert. denied,
469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984) (quoting
United States v. Glanton,
707 F.2d 1238 (11th Cir.1983) (The traditional test of multiplicity “determines whether each count ‘requires proof of a fact which the other does not.’ ”)
The one court which has considered the multiplicity argument in the context of § 844(i) and § 924(c) rejected the defendant’s challenge. In
United States v. Moran,
1987 WL 5418, 1987 U.S.Dist. LEXIS 248 (unpublished opinion, N.D.Ill.), the defendant moved to dismiss the § 844(i) and § 924(c) counts of his indictment because no additional proof was required to establish the latter after a violation of the former was proven. In the course of three paragraphs of an unpublished opinion, the district court recognized that two counts in an indictment are
not multiplicitous if each count requires proof of a fact which the other does not.
Id.,
1987 WL 5418 at *1, 1987 U.S.Dist. LEXIS 248 at *3, citing
United States v. Marquardt,
786 F.2d 771, 778 (7th Cir.1986). The court concluded that a § 844(i) violation contains elements distinct from those required to establish a § 924(c) violation, and a § 924(c) violation
could
be proven with elements distinct from § 844(i).
In order to achieve this result, the
Moran
court detached the § 924(e) offense from its predicate, and looked to the face of the statutes individually. It relied on
United States v. Woodward,
469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985), to justify this maneuver, which allowed it to conclude that “a violation of § 924(c) could be proved without necessarily proving a case of property destruction by fire or an explosive under § 844(i)”.
Id.
The
Moran
court’s reliance on
Woodward
and
Marquardt
was misplaced, because both of these cases analyzed independent statutes. In
Woodward,
the circuit court ruled that a defendant could not be punished for violation of a statute prohibiting false statements to an agency of the U.S. and willfully failing to report that he was carrying over $5,000 into the U.S. The circuit court’s conclusion was based on the fact that the same conduct— answering “no” to a form question — formed the basis of each count. The Supreme Court reversed, because it disagreed with the circuit court’s finding that the false statement felony was a lesser included offense of the currency reporting statute. The Court concluded that proof of a currency reporting violation does not necessarily include proof of a false statement offense, despite the fact that in this case it did.
Similarly,
Mar-quardt
involved two statutes which could be prosecuted independently.
In contrast to the statutes considered in
Woodward
and
Marquardt,
§ 844(i) and § 924(c) are not independent statutes. A § 924(c) charge cannot be sustained without a predicate offense. Therefore, while the
Moran
court’s statement that “a violation of § 924(c) could be proved without necessarily proving a case of property destruction by fire or an explosive under § 844(i)” is technically true, proof of a violation of § 924(c) “must necessarily” prove destruction by fire or explosive when it is predicated on § 844(i).
When statutes share a predicate/compound relationship, I believe that the
Woodward, Marquardt
and
Moran
courts’ approach should be rejected. While it might be appropriate for a court to consider the statutes instead of the facts of the case, it should look at the statutes which are actually being used in tandem, and it should focus on those portions of the statute
applicable
to the case. In this situation, that analysis must lead to the conclusion that charges of both § 844(i) and § 924(e) are multiplicitous.
I believe that the pairing of charges under § 844(i) and § 924(c) is multiplicitous. My conclusion that the
Moran
court’s analysis of this matter is incorrect is supported by
Ball v. United States,
470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). In
Ball,
the Supreme Court concluded that a felon could not be convicted of both receiving a firearm in violation of 18 U.S.C. § 922(h) and possessing it in violation of 18 U.S.C.App. § 1202(a)(1). Because the statutes were contained in the same congressional act, the Court had more complete legislative history than exists in this case, which involves statutes from two different acts, enacted at different times. However, relying largely on the drafting and effect of the statutes themselves, the Court concluded,
it is clear that Congress did not intend to subject felons to two convictions; proof of illegal receipt' of a firearm
necessarily
includes proof of illegal possession of that weapon. ‘[Wjhen received, a firearm is necessarily possessed[,]’ [citation omitted] [although] the converse may not be true.
' * * * * * *
In short, we are persuaded that Congress had no intention of creating duplicative punishment for one limited class of persons falling within the overlap between the two Titles — convicted felons who receive firearms and who, by definition, possess them. The independent, but not overlapping statutes simply are not ‘directed to separate evils’ under the circumstances, [citation omitted]
Id.
at 862, 863-864, 105 S.Ct. at 1672, 1673. I believe that this passage describes the circumstance at bar. Proof of an § 844(i) violation necessarily includes proof of a § 924(c) violation, and, under these circumstances, these statutes are not directed .to separate evils.
As a result, I believe that the remedy directed by
Ball
must be applied in this case:
Having concluded that Congress did not intend petitioner’s conduct to be punishable under both [statutes], the only remedy consistent with the congressional intent is for the district court, where the sentencing responsibility resides, to exercise its discretion to vacate one of the underlying convictions. The remedy' of ordering one of the sentences to be served concurrently with the other cannot be squared with Congress’ intention.’ One of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense.
Id.
at 864, 105 S.Ct. at 1673.
Conflicting Instruction From Congress and Its Surrogate, the Sentencing Commission
The only ease which gives serious consideration to the question of the interaction of § 844(i) and § 924(c) is
United States v. Swapp,
719 F.Supp. 1015 (D.Utah 1989),
aff'd
as to Jonathan Swapp and
aff'd and remanded
as to Addam Swapp, 934 F.2d 326 (10th Cir.1991) (unpublished opinion).
The
Swapp
defendants were charged with violations of § 844(i) and § 924(c) in conjunction with the bombing of a Mormon church.
The
Swapp
court refused to sentence on the § 924(c) count for two reasons.
First, it argued that because no additional proof is necessary to prove a § 924(c) violation when the predicate offense is § 844(i), the imposition of a § 924(c) penalty would be unlawfully cumulative. ' Secondly, the court offered an interesting argument concerning the inter
play between the Sentencing Guidelines and mandatory mínimums. It noted that U.S.S.G. § 2K2.4(a) anticipated the use of enhancement statutes.
When § 924(c) is charged, Guideline § 2K2.4(a) instructs sentencing courts to disregard the enhancements the Guidelines provide for the use of a weapon when calculating the sentence for the underlying offense!
Therefore, in one sense, § 924(c) “replaces” the enhancement. The policy behind this practice is that the use of the weapon should only be counted once: either in the sentence for the substantive crime, or in the form of an enhancement statute like § 924(c), but not both places. As the Background Note to Guideline § 2K2.4 states, “[t]o avoid double counting, when a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for firearm discharge, use, or possession is not applied in respect to such underlying offense.”
The
Swapp
court noted that it was “left with the impossible task of trying to reconcile conflicting directions given to the court by Congress and by its surrogate, the Commission.”
Id.
at 1020. From this fact, it concluded that the statutes which provide the Guideline sentence and § 924(c) were in conflict, and the court could not follow both.
I agree with the
Swapp
court’s conflict analysis. Furthermore, I view this conflict as additional evidence that Congress did not anticipate the use of § 924(c) with a statute like § 844(i). In short, § 844(i) is an anomaly. Through its surrogate the Sentencing Commission, Congress has instructed sentencing courts to avoid “double counting” in general, and has said specifically that the use of a firearm should not be counted twice. However, when the predicate crime is a violation of § 844(i), it is impossible to follow that instruction and also follow the instruction of § 924, because use of an explosive is an element of the predicate offense.
The result of this conflict in statutes is the same as that of the improper predicate and multiplicity analyses above: these statutes cannot be used in conjunction.
The Choice Between § 844(i) and § 924(c)
For the reasons discussed above, I conclude that § 844(i) and § 924(c) cannot coexist. It would be impossible for the government to argue that the element of § 844(i) which requires the use of an explosive is severable, and § 924(c) should somehow be read to “replace” that element. The statutes simply cannot be read in tandem. Therefore, I must choose between them. There are three reasons why I must apply § 844(i), and
not § 924(c). First, and most significantly, § 924(c) does not completely define a crime: it is dependent upon conviction of a different violent crime. Therefore, as between the two, § 844(i) is able to stand alone; § 924(c) is not. The second reason is an extension of the first. When choosing between two statutes, the more specific statute governs over the more general, even when the more general was enacted later.
Green v. Bock Laundry Machine Co.,
490 U.S. 504, 524, 109 S.Ct. 1981, 1992, 104 L.Ed.2d 557 (1989);
Simpson v. United States,
435 U.S. 6, 15, 98 S.Ct. 909, 914, 55 L.Ed.2d 70 (1978). Because § 844(i) contains a precise definition of the elements of a crime, as opposed the more general enhancement provisions of § 924(c), § 844(i) must prevail. Finally, the fact that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,”
United States v. Bass,
404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971), reinforces my conclusion that § 844(i) should be applied in this case.
Conclusion
The executive branch, through its agent prosecutors, has great discretion in determining what to charge. When those charges are brought pursuant to the Guidelines, the judiciary may guard against the abuse of that discretion through the grouping of offenses. U.S.S.G. Ch. 3, Part D. When the grouping provisions of the Guidelines do not remedy concerns about excessive, abusive, or inappropriate charging, judges may invoke U.S.S.G. Ch. 1, Part A(4), which authorizes sentencing courts to “control any inappropriate manipulation of the indictment through use of its departure power.”
However, when a penal statute carries a mandatory sentence, these remedies are unavailable,
and the judiciary has no control over sentencing. In determining whether to charge a § 924(c) violation in addition to its predicate, the prosecutor essentially chooses the sentence. In cases like this, that choice is the difference between a sentence of approximately 3-4 years, and a sentence of 33-34 years. When the stakes are this high, the judiciary must be particularly vigilant to insure both that Congress clearly intended to grant such discretion to the Executive, and if so, that Congress properly enacted its intent into law.
In this case, I do not believe that Congress extended this choice to the prosecutor.
Finally, I would like to note that on July 14, 1992, this Court issued an Opinion denying defendants’ motion for a judgment of acquittal on double jeopardy grounds.
United States v. Quigley,
798 F.Supp. 451 (W.D.Mich.1992). Although this Opinion reaches the opposite result as
Quigley,
it does so on different grounds. If this Opinion is perceived to be inconsistent with any part of
Quigley,
this Opinion is intended to control.
For the foregoing reasons, Mr. Quigley’s conviction under Count 5 will be vacated.
Ball v. United States,
470 U.S. at 864, 105 S.Ct. at 1673. As a result of his conviction on the remaining counts, Mr. Quigley is sentenced to a term of 48 months imprisonment.
ORDER
In accordance with the Opinion entered on this date;
IT IS HEREBY ORDERED that the pri- or sentence imposed on defendant David Quigley from the bench on February 16, 1993, and in a judgment dated February 18, 1993, is WITHDRAWN;
IT IS FURTHER ORDERED that Count 5 of the indictment of David Quigley is VACATED.
IT IS FURTHER ORDERED that David Quigley is sentenced to 48 months imprisonment. Additional conditions of this sentence are contained in the judgment filed in this case.