USA. v. Carr.

• Decision Date: 27 September 2001
• Docket Number: No. 00-4345,00-4345
• Citation: 271 F.3d 172
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LENT CHRISTOPHER CARR, II, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 172

271 F.3d 172 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LENT CHRISTOPHER CARR, II, Defendant-Appellant.

No. 00-4345

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: September 27, 2001

Decided: November 5, 2001

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, District Judge.

(CR-99-30)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL ARGUED: Terry F. Rose, Smithfield, North Carolina, for Appellant. Banumathi Rangarajan, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Before MOTZ, KING, and GREGORY, Circuit Judges.

Dismissed in part and vacated and remanded in part by published opinion. Judge King wrote the opinion, in which Judge Motz and Judge Gregory joined.

OPINION

KING, Circuit Judge:

Appellant Lent Christopher Carr, II, was convicted and sentenced on his pleas of guilty to maliciously damaging and destroying a building used in interstate commerce by means of fire, in violation of 18 U.S.C. S 844(i) (Count One), conspiracy to commit mail fraud, in violation of 18 U.S.C. S 371 (Count Five), and bank fraud, prohibited by 18 U.S.C. S 1344 (Count Six). There are two aspects to his appeal. Carr first challenges his 125-month sentence, consisting of 125 months each on Counts One and Six and 60 months on Count Five, all to run concurrently. He alleges that the district court failed to recognize its authority to depart based on his physical condition, U.S. Sentencing Guidelines Manual S 5H1.4 (1998), and abused its discretion in declining to depart. Second, Carr challenges his S 844(i) conviction in light of the Supreme Court's decision in Jones v. United States, 529 U.S. 848 (2000). As explained below, we dismiss the appeal of the court's decision not to depart, but we vacate Carr's conviction on Count One and remand for further Rule 11 proceedings on the Jones issue.

I.

A.

In 1998, Carr applied for a fire insurance policy for a mobile home in Greenville, North Carolina, which served as a residence and as a place of worship known as the World Harvest Oasis Temple of Praise Church. Five days after the insurance policy became effective, Carr reported that the mobile home had been totally destroyed by fire. Investigators discovered the origin of the fire to be a cabinet near the stove, and concluded that the fire had been started by the application and ignition of gasoline.

Carr and his wife Davina thereafter made insurance claims for several items of value, including items that had been repossessed from them, were never purchased by them, and were obtained from merchants under false pretenses, as well as items that were grossly overvalued. Carr also met with witnesses in order to "get their stories straight." J.A. 158. Those who supported Carr's version of events were to get a share of the insurance proceeds. Davina Carr later admitted that she had lied to an investigating grand jury under pressure from her husband.

B.

Carr was indicted in the Eastern District of North Carolina in June 1999, and again by superseding indictment in October 1999, for, inter alia, setting fire to real property used in interstate commerce, in violation of 18 U.S.C. S 844(i). Pursuant to a plea agreement, he entered a plea of guilty to this charge as well as to the charges of bank fraud and mail fraud, and the remaining counts of the superseding indictment were dismissed.

At Carr's sentencing hearing on April 17, 2000, defense counsel sought a downward departure based on extraordinary physical impairment, i.e., Carr's AIDS diagnosis, noting that his probable life expectancy was only four or five years. The court requested Fourth Circuit authority to support an adjustment for AIDS, but his counsel presented none. In response, the Government contended that the prison system could handle Carr's illness. The court then denied the downward departure and sentenced Carr to a total of 125 months' imprisonment.

II.

A district court's decision not to depart from the Sentencing Guidelines is not reviewable unless the court mistakenly believed that it lacked authority to depart. See United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992). According to Sentencing Guideline S 5H1.4, physical condition or appearance . . . is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.

USSG S 5H1.4. In this case, the court had to decide whether Carr's diagnosis was an extraordinary impairment warranting departure under S 5H1.4. The example given by the Guideline, i.e., the efficiency of home detention versus prison, shows that assessing whether the Bureau of Prisons could adequately care for an individual with this condition is relevant under the Guideline.

The court carefully ascertained that there was no authority in this circuit requiring departure, and observed that it was "not inclined to grant the Defendant's motion."¹ It is clear that the court understood its ability to depart, but did not find the presence of an extraordinary factor warranting departure. Because the court was under no misperception as to its authority, its refusal to depart is not subject to appellate review. United States v. Edwards, 188 F.3d 230, 238 (4th Cir. 1999), cert. denied, 528 U.S. 1130 (2000). We therefore may not disturb its ruling on this matter, and we must dismiss this portion of the appeal.

III.

Carr's challenge to his S 844(i) conviction presents us with three issues, one more difficult than the others. Section 844(i) of Title 18 requires that the building damaged or destroyed by fire or explosive was used in interstate commerce or in an activity affecting interstate commerce.² Our analysis of the interstate commerce element is informed by the Supreme Court's recent decision in Jones v. United States, 529 U.S. 848, 850-51 (2000), in which 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; arson of such a dwelling, therefore, is not subject to federal prosecution under S 844(i)." The building must be actively employed "for commercial purposes and not merely a passive, passing or past connection to commerce." Id. at 855. The Court determined that such slight connections with interstate commerce as receiving natural gas, a mortgage, or an insurance policy from outside the state are insufficient to bring a residence within the scope of S 844(i). Id. at 856; see also United States v. Rea, 223 F.3d 741, 744 (8th Cir. 2000) (vacating conviction for arson of church annex in light of Jones and remanding for fact-finding and determination of whether building was used in commerce as required by S 844(i)).³

Carr asserts that Jones error exists here, and makes the following contentions based on the Jones decision: (1) that Count One of the superseding indictment is fatally flawed and fails to properly charge a S 844(i) offense; (2) that the court lacks subject matter jurisdiction due to failure to prove the "jurisdictional" interstate commerce element; and (3) that there was an insufficient factual basis for the court to accept his guilty plea. We will address each of these contentions in turn.

A.

The Government maintains, and we agree, that Count One of the superseding indictment sufficiently alleges a violation of S 844(i), because it specifically asserts that the building Carr burned was used in interstate commerce.⁴ In order to sustain a challenge to Count One, Carr is obliged to demonstrate that the indictment does not, by any reasonable construction, charge the offense for which he was convicted. Hayle v. United States, 815 F.2d 879, 881-82 (2d Cir. 1987). Carr entered a guilty plea to Count One, and the interstate commerce element of S 844(i) was clearly and properly alleged therein; thus this challenge to Count One must fail.

B.

Carr next contends that because the interstate commerce element is "jurisdictional," the federal courts lack subject matter jurisdiction over his case if the interstate commerce element was not proven. This part of the Jones claim also must fail, however, because the "jurisdictional element" is merely one element of the criminal activity proscribed by S 844(i), and whether it is demonstrated in an individual circumstance does not affect "a court's constitutional or statutory power to adjudicate a case." United States v. Beck, 250 F.3d 1163, 1165 (8th Cir. 2001) (quoting United States v. Martin, 147 F.3d 529, 531-32 (7th Cir. 1998), and citing United States v. Rea, 169 F.3d 1111, 1113 (8th Cir. 1999), vacated and remanded on other grounds, 223 F.3d 741 (8th Cir. 2000)). The interstate commerce element of S 844(i) implicates the power of Congress to regulate the conduct at issue, not the jurisdiction of the court to hear a particular case. See, e.g., United States v. Riddle, 249 F.3d 529, 536 (6th Cir. 2001). After a judgment of conviction is validly entered on a guilty plea, a defendant cannot challenge the interstate commerce prong of S 844(i) as "jurisdictional," because such a challenge merely contests the sufficiency of the evidence supporting that element of the offense. See id. ("[A] claim of an insufficient connection to interstate commerce is a challenge to one of the elements of the government's case and is therefore considered a claim about the sufficiency of the evidence."). The question therefore becomes whether the judgment of conviction on Count One was validly entered.⁵

C.

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