U.S. v. Gillespie

• Decision Date: 30 June 2006
• Docket Number: No. 05-6292.,05-6292.
• Citation: 452 F.3d 1183
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sean Michael GILLESPIE, Defendant-Appellant.

452 F.3d 1183

UNITED STATES of America, Plaintiff-Appellee, v. Sean Michael GILLESPIE, Defendant-Appellant.

No. 05-6292.

United States Court of Appeals, Tenth Circuit.

June 30, 2006.

COPYRIGHT MATERIAL OMITTED

Submitted on the briefs:^* Paul Antonio Lacy, Assistant Federal Public Defender, Office of the Federal Public Defender for the Western District of Oklahoma, Oklahoma City, OK, for Appellant.

John C. Richter, United States Attorney, and Scott L. Palk, Assistant United States Attorney, Office of the United States Attorney, Oklahoma City, OK, for Appellee.

Before TACHA, Chief Circuit Judge, HOLLOWAY, and HARTZ, Circuit Judges.

TACHA, Chief Circuit Judge.

After Defendant-Appellant Sean Michael Gillespie admitted to throwing a Molotov cocktail into Temple B'nai Israel located in Oklahoma City, a jury convicted him of using a destructive device during a violent crime in violation of 18 U.S.C. § 924(c)(1)(A); maliciously damaging a building used in interstate commerce or used in any activity affecting interstate commerce by means of an explosive in violation of 18 U.S.C. § 844(i); and possessing an unregistered destructive device in violation of 26 U.S.C. § 5861(d). Mr. Gillespie now challenges both his conviction and sentence. We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.

I. BACKGROUND

The facts are undisputed. Temple B'nai Israel is a Jewish synagogue in Oklahoma City. Besides offering religious services and instruction, the Temple also houses a nonreligious preschool responsible for approximately sixty-five children. The preschool charges for its services and has a yearly income of over $100,000. In addition, Temple B'nai Israel maintains a gift shop that offers Judaica—such as Hanukkah items, Stars of David, and Seder plates—as well as children's videotapes, candy, and gift wrap for sale. Ninety-five percent of the gift shop's approximately $33,000 worth of inventory is purchased from out-of-state vendors.

On April 1, 2004, Mr. Gillespie made a Molotov cocktail from a beer bottle and a rag, ignited it, and threw it at an outside door alcove at the Temple. Mr. Gillespie videotaped himself in the act, and his actions were also recorded on Temple B'nai Israel's video surveillance security system. Fortunately, no one was injured and damage to the Temple was minor, consisting mostly of some broken glass and charred walls.

Following an investigation, Mr. Gillespie was arrested and admitted to the crime. He was indicted on the three counts outlined above: (1) using a destructive device during a violent crime in violation of 18 U.S.C. § 924(c)(1)(A); (2) maliciously damaging a building used in interstate commerce or used in any activity affecting interstate commerce by means of an explosive in violation of 18 U.S.C. § 844(i); and (3) possessing an unregistered destructive device in violation of 26 U.S.C. § 5861(d). After the verdict but prior to sentencing, Mr. Gillespie wrote a letter to the Temple that was intercepted by correctional facility officials. The letter, which is set forth in full below, contained racially motivated epithets and claimed that Temple members falsely testified against him at his trial.

At sentencing, the District Court found that the letter provided a basis for a two-level offense enhancement for obstruction of justice under United States Sentencing Guidelines Manual ("U.S.S.G.") § 3C1.1. Mr. Gillespie was ultimately sentenced to 360 months' imprisonment as to the first count and 108 months' imprisonment as to the remaining two counts. Counts Two and Three were ordered to be served concurrently with each other and consecutively to Count One, which produced an aggregate sentence of 468 months.

On appeal, Mr. Gillespie argues: (1) insufficient evidence supports the jury's conclusion that Temple B'nai Israel is a building used in or affecting an activity in interstate commerce within the meaning of 18 U.S.C. § 844(i); (2) the District Court erroneously applied the obstruction of justice enhancement; (3) his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment; and (4) his sentence is unreasonable.

II. DISCUSSION

A. The evidence was sufficient to support the conclusion that Temple B'nai Israel is a building used in or affecting an activity in interstate commerce.

Whether the evidence presented at trial is sufficient to support a conviction is a matter we review de novo. United States v. Smith, 413 F.3d 1253, 1265 (10th Cir.2005). Viewing the direct and circumstantial evidence in the light most favorable to the Government, we will uphold a conviction as supported by sufficient evidence so long as a reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.

18 U.S.C. § 844(i) states that:

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 less than 5 years and not more than 20 years . . . .

In Jones v. United States, the Supreme Court interpreted the phrase "used in interstate [] commerce or in any activity affecting interstate [] commerce." 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). In that case, the defendant was convicted under 18 U.S.C. § 844(i) after he set fire to his Indiana home. The Government argued that although the home was not used for any commercial purpose— such as when a private residence is rented to tenants, see Russell v. United States, 471 U.S. 858, 862, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985)—the statutory term "affecting . . . commerce" in the statute signaled Congress' intent to invoke its full authority under the Commerce Clause. 529 U.S. at 854, 120 S.Ct. 1904. Accordingly, the Government maintained that home was used in activities affecting interstate commerce in the following ways:

First, the homeowner "used" the dwelling as collateral to obtain and secure a mortgage from an Oklahoma lender; the lender, in turn, "used" the property as security for the home loan. Second, the homeowner "used" the residence to obtain a casualty insurance policy from a Wisconsin insurer. That policy, the Government points out, safeguarded the interests of the homeowner and the mortgagee. Third, the homeowner "used" the dwelling to receive natural gas from sources outside Indiana.

Id. at 855, 120 S.Ct. 1904.

The Court disagreed with the Government's expansive interpretation, holding instead that the words "used in" qualify the scope of § 844(i). Therefore, the Court determined that "[t]he proper inquiry. . . is into the function of the building itself, and then a determination of whether that function affects interstate commerce." Id. at 854, 120 S.Ct. 1904 (quotation omitted). Applying that two-step approach, the Court held that "an owner-occupied residence not used for any commercial purpose does not qualify as property `used in' commerce or commerce-affecting activity." Id. at 850-51, 120 S.Ct. 1904. This Court has explained that:

In reaching that conclusion, the Court employed a functional analysis to a building used solely as a private home, reasoning that it is not the common perception that the function of a private home is active employment for commercial purposes. It follows, the Court noted, that the delivery of natural gas to the house, insurance, and committing the home as security for a mortgage loan are merely passive, passing or past connections to commerce, thus failing the "use" or "active" employment requirement of the statute.

United States v. Grassie, 237 F.3d 1199, 1207-08 (10th Cir.2001).

After Jones, the prevailing view is that "[t]he fact that a building is a church, without more . . . does not bring it within the ambit of section 844(i)." United States v. Rea, 300 F.3d 952, 960 (8th Cir.2002) This is because "[a] church, like the owner-occupied residence considered in Jones, generally does not function in a manner that places it in any significant relationship with commerce, let alone interstate commerce." United States v. Lamont, 330 F.3d 1249, 1254 (9th Cir.2003); see also United States v. Davies, 394 F.3d 182, 193 (3d Cir.2005) ("[A] normal church is no more `active[ly] used for commercial purposes' than was the residential house in Jones."); United States v. Carr, 271 F.3d 172, 179 (4th Cir.2001) ("[U]se of a building as a church does not alone qualify it as being `used in' interstate commerce."). Accordingly, the circuits have held that "a passive, past, or passing connection to interstate commerce," United States v. Odom, 252 F.3d 1289, 1296 (11th Cir.2001), such as receiving donations from out-of-state donors, using Bibles purchased from an out-of state source, and indirectly contributing to an out-of-state organization, see id. at 1296-97; collecting money from members to purchase church supplies from out-of-state vendors and to fund out-of-state missions, see Davies, 394 F.3d at 186; and receiving gas from out-of-state pipelines, obtaining insurance from an out-of-state company, purchasing goods from out-of-state, and serving out-of-state worshipers, see Lamont, 330 F.3d at 1250, do not bring a church within the scope of § 844(i).

This is not to say, however, that no place of worship engages in commercial functions sufficient to trigger the federal statute. See Davies, 394 F.3d at 193. For example, it has been suggested that "megachurches" offering banking, shopping, and barbershop services may be sufficiently unrelated to worship so as to warrant application of § 844(i) due to their commercial function. See Lamont, 330 F.3d at 1255. Similarly, this Court has upheld a conviction where the four churches at issue were the only Latter Day Saints churches in their four respective cities, and where the churches functioned in part like community centers, offering a wide range of social, recreational, and educational...