Lawrence Florentine shot and killed his wife during an interstate road trip, attempting to conceal his crime by burning her remains at a cemetery. A federal grand jury charged him with interstate domestic violence resulting in death under 18 U.S.C. § 2261(a)(2), use of a firearm during a crime of violence causing death, obstruction of justice, and “use of fire to commit a felony” under 18 U.S.C. § 844(h)(1), which in turn was predicated on interstate domestic violence. Florentine moved to dismiss the § 844(h)(1) count, arguing that he only used fire after the victim’s death.
The district court denied the motion, treating the predicate offense as continuing past the murder and into the burning of the victim’s body, and imposed 360 months’ imprisonment. In doing so, the Court stated that it would have imposed the same sentence even without the § 844(h)(1) count.
On appeal, the Fourth Circuit reversed the defendant’s conviction on the § 844(h)(1) count and remanded solely for entry of an amended judgment, without any resentencing proceedings.
In explaining its vacatur of the defendant’s conviction, the panel held that interstate domestic violence “ends when the victim dies.” Thus, Florentine’s after-the-fact concealment of the victim’s body via burning lies beyond the reach of § 844(h)(1). While acknowledging cases reading “uses fire” broadly when fire is employed during a felony, the court distinguished kidnapping, which Congress expressly treats as continuing even if the victim dies during transport, from § 2261(a)(2), which lacks comparable language. Concealment, the Court explained, is generally not part of the crime itself.
In terms of the appropriate remedy for the district court’s error, the court declined to order resentencing for the defendant because the record made clear that the district court judge would have imposed the same 360-month sentence based on the § 3553(a) factors even if the § 844(h)(1) count were dismissed. The court therefore remanded only for entry of an amended judgment dismissing the § 844 count.
Appeal from the District of South Carolina.
Opinion by Berner, joined by Agee and Thacker.