concurring in part and dissenting in part:

I respectfully dissent from the majority’s decision to reverse Count 9 of the *605 Second Superceding Indictment. I also concur in the majority’s decision to vacate the sentence but on different grounds. I agree with the Government that the sentence imposed by the District Court was unreasonable and an extreme departure from the advisory Sentencing Guidelines.

I

Count 9 reads as follows:

Section 844(h)(2) provides as follows:

In Count 5 of the indictment, Mr. Ressam was charged as follows:

The district court gave the following instruction to the jury concerning the elements that the Government was required to prove to demonstrate a violation of § 844(h)(2).

In his opening brief, Mr. Ressam concedes that “[t]he government did present evidence that Mr. Ressam was carrying explosives in the trunk of the car he was driving at the time he completed and presented the customs form, and that Mr. Ressam falsely identified himself on the form.” Opening Brief of Appellant at 18. Mr. Ressam does not argue that the words used by Congress in § 844(h)(2) are ambiguous or lack plain meaning.

The Supreme Court instructed in Tennessee Valley Authority v. Hill, 437 U.S. 153 , 98 S.Ct. 2279 , 57 L.Ed.2d 117 (1978) that: “When confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look to legislative history as a guide to its meaning.” Id. at 184 , 98 S.Ct. 2279 n. 29 . In United States v. Missouri Pac. R. Co., 278 U.S. 269 , 49 S.Ct. 133 , 73 L.Ed. 322 (1929), the Court stated: “where the language of an enactment is clear, and construction according *606 to its terms does not lead to absurd or impracticable consequences, the words employed are to be taken as the final expression of the meaning intended.” Id. at 278 , 49 S.Ct. 133 .

More recently, in Lamie v. United States Trustee, 540 U.S. 526 , 124 S.Ct. 1023 , 157 L.Ed.2d 1024 (2004), Justice Kennedy, writing for the majority, stated:

Id. at 534 , 124 S.Ct. 1023 .

Mr. Ressam argues that we must read the words “in relation to” into the text of § 844(h)(2). He contends that we must reverse because the court refused an instruction he submitted that states as follows:

(emphasis added).

Mr. Ressam’s proposed instruction would have required the District Court to add an element to § 844(h)(2) that does not appear in the statute enacted by Congress. Justice Kennedy, in his opinion in Lamie , rejected a similar notion:

540 U.S. at 538 , 124 S.Ct. 1023 . (emphasis added).

We lack the constitutional authority to add an element to a criminal statute. That is Congress’ function. Our role is merely to interpret what Congress has enacted.

II

This Court has not previously addressed the question whether a trial court must instruct a jury that, to convict under § 844(h)(2), the Government must prove beyond a reasonable doubt that the defendant carried explosives during and in relation to the commission of a felony which may be prosecuted in a court of the United States. The Third and Fifth Circuits have expressly rejected this contention.

In United States v. Rosenberg, 806 F.2d 1169 (3rd Cir.1986), the Third Circuit affirmed a judgment of conviction for a violation of § 844(h)(2), wherein the trial court rejected the defendants’ argument that the Government was required to present evidence of a specific connection between the carrying of explosives and the alleged felony. The Third Circuit reasoned as follows:

Id. at 1178-79.

The Third Circuit’s determination in Rosenberg that a federal court cannot read absent words into a statute is faithfully consistent with Justice Kennedy’s statement in Lamie that federal courts cannot “rewrit[e] rules that Congress has affirmatively and specifically enacted.” Lamie, 540 U.S. at 538 , 124 S.Ct. 1023 (quoting Mobil Oil, 436 U.S. at 625 , 98 S.Ct. 2010 ). In United States v. Ivy, 929 F.2d 147 (5th Cir.1991) the Fifth Circuit, citing the Third Circuit’s opinion in Rosenberg , “refuse[d] to judicially append the relation element to § 844(h)(2).” Id. at 151.

The Rosenberg decision was written twenty years ago. Since then, Congress has not amended § 844(h)(2) to add a relational element. Under our constitutional doctrine of the separation of powers, we cannot usurp Congress’ authority.

Ill

The majority has refused to follow the Third Circuit’s decision in Rosenberg , and the Fifth Circuit’s opinion in Ivy , that we lack the authority to add an “in relation to” element to § 844(h)(2). Instead, the majority asserts that it is “constrained” to apply this Court’s opinion in United States v. Stewart, 779 F.2d 538 (9th Cir.1985), overruled in part on other grounds by United States v. Hernandez, 80 F.3d 1253, 1257 (9th Cir.1996), which read a relational element into 18 U.S.C. § 924 (c). The term “constrain” is defined as “to force by stricture, restriction, or limitation imposed by *608 nature, oneself, or circumstances and exigencies.” Webster’s Third New International Dictionary 489 (1976). I do not agree with my colleagues that we are forced, by the law of this Circuit, to follow Stewart in construing the words expressly and unambiguously set forth by Congress in a separate statute.

Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir.2003) (en banc).

More recently, in Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir.2006), Judge Berzon pointed out that “[w]e are ‘bound not only by the holdings of [such intervening] decisions but also by their mode of analysis.’ ” Id. at 1019 . (quoting Gill v. Stern (In re Stern), 345 F.3d 1036, 1043 (9th Cir.2003)). (internal quotations omitted).

In Stewart , a three-judge panel of this Court determined that it had the authority to add an element to a criminal statute that was unambiguous by referring to legislative history. We stated: “We interpret [§ 924(c) ] as if it contained the requirement that the firearm be possessed ‘during and in relation to’ the underlying offense.” 779 F.2d at 540 . The Supreme Court’s subsequent holding in Lamie that, where the language is plain, we cannot “read an absent word into the statute,” 540 U.S. at 538 , 124 S.Ct. 1023 , undercuts our conclusion in Stewart that we had the authority to add a relational element to § 924(c). Accordingly, we are constrained to apply the holding and mode of analysis set forth in Lamie and enforce § 844(h)(2) “according to its terms” and not to “rewrit[e] rules that Congress has affirmatively and specifically enacted.” Lamie, 540 U.S. at 538 , 124 S.Ct. 1023 .

I would affirm the District Court’s judgment of conviction with respect to Count 9 by employing the following logical syllogism.

Section 844(h)(2) provides that “[whoever ... carries an explosive during the commission of any felony which may be prosecuted in a court of the United States ... shall, in addition to the punishment provided for such felony, be sentenced to imprisonment for 10 years.”

It is undisputed that Mr. Ressam was carrying explosives in the trunk of his car when he falsely stated in a Customs Declaration Form # 6059B that his name was Benni Noris in violation of 18 U.S.C. § 1001 .

Therefore, Mr. Ressam is subject to the enhanced punishment prescribed in § 844(h)(2) because he was carrying an explosive during the commission of the crime set forth in § 1001.