United States v. Michael White

documents. Id. Accordingly, despite Ar- ent dates of offense, the same “do not otherwise, chie’s contention there is no upend the trial court’s sound conclusion” prohibition secondary on records simply when there is additional evidence to “indi- they may contain discrepancies cate the ... erroneous ... [likely] date regarding prior conviction. a scrivener’s error.” Washington, 629 F.3d at 413. We therefore decline to dis-

Archie argues nevertheless turb the district finding. court’s Government “failed its burden because the they projected conviction upon [him] dated, indeterminately premised upon sec- III. records, ondary and even those records For the foregoing reasons, judgment contradictory

were unreliable.” of the district court is 15.) (Opening Br. unpersuaded. are AFFIRMED. When upon called to determine prior existence of a conviction for sen tencing purposes, a district court en can

gage in permitted “fact-finding in a routine

and conscientious sense” even if “inconsis

tencies and clerical mistakes [exist]

state Washington, records[.]” 629 F.3d at

414-15. That is precisely what occurred

here. The court weighed district the evi UNITED America, STATES of reasonably dence and found that the same Plaintiff-Appellee, defendant, Archie, named was convicted of third-degree robbery in 1977 in Kings County, New York based upon infor WHITE, Michael L. Defendant-

mation in all the underlying documents, Appellant. the conviction date listed in Appendix B, No. 13-4949. the consistent incarceration in Appen date A, dix and the uniform docket numbers. United States Court of Appeals, (See (“[I]f you J.A. 67 follow the records Fourth Circuit. submitted, Government has it Argued: Aug. looks like all the crimes were charged in ’76. appears It to me Decided: Nov. had a plea in ’77 and then a sentence in ’78. At least that’s the way it looks to

me.”).) We see no clear error in this

conclusion. Wooden, See United States v. (4th Cir.2012) (“A court

reviewing for may clear.error not ‘reverse [unless],

... on evidence, the entire it is

left with the definite and firm conviction ” (ci that mistake has been committed.’ omitted)).

tation

When faced with records that contain

inconsistencies, this court has concluded

that certain discrepancies, such as differ-

commit fraud, arson and mail see 18 U.S.C. (Count §§ 844(i), 1); aiding and abetting arson, 2(a), see 18 §§ 844(i) (Count 2); and accessory after the arson, fact to 844(i) see §§ (Count 3). The district imposed court 78-month term of imprisonment for each count, to run concurrently.

On appeal, White raises two challenges to the 'sufficiency First, of the evidence. White contends that government failed to establish the nexus to interstate com- required merce to sustain arson-related convictions as charged in’ Counts 1 and 2. Second, he argues the evidence is insuffi- cient to establish that he assisted an un- charged co-conspirator in evading appre- hension and punishment required as for accessory-after-the-fact conviction ARGUED: James Cagle, McCall charged in Finally, Count 3. White chal- Charleston, Virginia, West Appellant. for lenges sentence, his arguing that the dis- Larry Ellis, Robert Office of the United trict court an used inflated base offense Charleston, States Attorney, West Virgi- level as a result of the court’s erroneous nia, for Appellee. ON BRIEF: R. Booth determination that duplex qualified as Goodwin, II, Attorney, United States Of- a “dwelling” under United States Sentenc- fice of the United States Attorney, ing (“U.S.S.G.”) Guidelines Manual Charleston, Virginia, Appellee. West for 2K1.4(a)(l). reject each of White’s arguments affirm his convictions and TRAXLER, Before Chief Judge, sentence. WYNN, Judge, Circuit and GEORGE L. RUSSELL, III, United District I. Judge for the District of Maryland, sitting by designation. White was a in Logan businessman County, Virginia, West who owned or held Affirmed published opinion. Chief an interest in local several ventures includ- Judge TRAXLER wrote the opinion, ing service, a helicopter an airport man- which Judge joined. RUSSELL Judge agement company, and coal several mines. WYNN opinion wrote dissenting White also a two-unit duplex owned near part. Van, (the the town of Virginia West “du- plex” or duplex”), “Van TRAXLER, which he began Chief Judge: renting to tenants Appellant Michael L. White was with crimes related to the intentional burn- the summer of expe- White was ing of a duplex two-unit owned riencing financial setbacks and defaulted managed recovery and to his lease, on his helicopter resulting in the proceeds from the fire. Following jury and, closure of helicopter his business trial, White was convicted of conspiracy to eventually, entry of a judgment duplex $80,000 coverage $556,000. personally

him that sum- Later $20,000 contents. for its $40,000 acquain- from to borrow forced talk wanted mer, told Kinder he expenses. cover tance kind some “Doug about husband to her re- longer no Additionally, White with the he could do what as to proposition duplex from stream ceiving an income met The Kinders duplex.” J.A. The Van of 2009. summer by the was not mak- explained who hous- government-subsidized qualified want- duplex and from the any money ing time, Department period aFor ing. possi- as soon it down Doug to burn ed Development and Urban Housing no accelerants instructed payments rent ble. White (“HUD”) sent subsidized be fire would last so that be used on behalf to White directly 283, and that him,” J.A. occupy back “traced Christy Ketcher- for at least fire. him not contact October Kinders the the liv- (“Ketcherside”), began who Finally, Smith the fire. White setting side after week of spring in ex-convict, the Apartment in ing unemployed Doug, offered subsidy HUD she lost her that testified the Kind- paid job. White to do the $4000 by early rent paying longer no was and faith,” “good front as a show up ers $200 in Dickens, resided who Shannon 2009. balance and indicated the J.A. years nine approximately 2 for Apartment job. of the completion upon be paid fire, the received benefit also the before the meeting, told During the White em- until she found rent subsidies HUD both already evicted had Kinders her- the rent began paying and ployment knew, the that, as far as and tenants in 2008 rent stopped paying Dickens self. entirely not This gone. was were unit tenants conditioning and air heating her when begin not even true, did however. White repair to failed working and stopped White September until duplex, proceedings continued live eviction it. Dickens early Oc- that however, September no White until late There 2009. Ketcherside, the 2009. on service tober obtained ever fact, Ketcher- 1. In Apartment in tenant that frustrated increasingly grew White never served she was testified that side not duplex were in the Van his Thus, the before papers. any eviction making not he was rent and paying an order fire, not obtained White had began ex- property. money on Although against Ketcherside. Kinder, an eviction Kimto this frustration pressing sleeping in been not neighbor with whom Ketcherside across-the-street -months, Kinder, she had several duplex affair. carrying on an house, premises- completely cleaned White’s abandoned regularly also who chil- many complaints and her kept from White’s furniture gathered still her she “a thorn duplex had become and property toys clothing and dren’s side.” J.A. his retrieve items there to went periodically things. White check on and able fire- purchased June Dickens, order an eviction obtain duplex cover the Van policy she tenant, directing that Apartment rental tenant-occupied” two-family “as 15, 2009- by October premises vacate policy became 427. The property. J.A. the fire.1 day before 19, 2009, provided July on effective deadline. weeks eviction before unit a few vacated her that she Dickens testified made three separate trips Kinders ing White’s involvement in the arson to duplex to the setting before the fire. On which White deny. did not Kinder also trips, first two the Kinders decided to if asked give White intended to her more wait they when noticed lights money, and White indicated that Kinder were on in the duplex people and that had been threatening him. 16, 2009,

were the building. On October Officer Bledsoe subsequently inter- Kinder her finally husband found the viewed During White. interview, duplex occupants, without although the White acknowledged his relationship with lights were on and there were “a lot of Kinder, his frustration over his ownership clothes on floor.” J.A. 287. Kinder duplex, and the fact that a fire had waited in the car while her husband en- occurred. White then told Officer Bledsoe tered the duplex and using started a fire that Kinder confessed to having started small amount gasoline. The Kinders the fire about two months after duplex returned once the fire home had been set. burned. White further stated

The heat and smoke fire he had damage Doug asked Kinder to go to caused the fire “and clean it exceeded up get it Thus, prepared limits new policy. fire either rent or sell.” J.A. 586. $80,000 White recovered the full proceeds White testified his own defense at claim, plus on his an additional amount for trial. He knowledge denied orof involve- major appliances. promised, As the Kind- ment in the burning of his duplex. To the ers waited one week before contacting extent that the phone recorded call made White, gave who Doug then White $1000. it appear that White was “fully aboard any refused to make large pay- further with the idea that duplex] [the would be ments, claiming very received little burned and by [Kinder],” burned money because the Kinders did explained that he was simply “playing not cause sufficient damage duplex. to the along” at the request friend, of a mutual In response, the Kinders resorted to “beg- Vincent, Mark who told him not to argue ging threatening” to the police, contact with Kinder because she suicidal. was which prompted White to amake number J.A. 508. Vincent testified and confirmed of smaller payments of or In less. $100 this claim. was convicted on all all, paid about rather than the $2000 counts, three and the district court im- promised. he had $4000 posed concurrent 78-month terms of im- prisonment each June on count. Kinder White now was contacted appeals. Virginia West State Police Officer T.C.

Bledsoe. initially After denying involve- II. arson, ment in the Kinder confessed to her involvement in arson and argues White first that there was insuf- agreed to cooperate police. Offi- ficient evidence to establish the interstate cer arranged Bledsoe for Kinder to make a commerce element of the crime arson telephone recorded call 844(i). to inWhite which under 18 Accordingly, he they discussed fire and pay- White’s argues that the district court in was error ment of to money During Kinders. when it denied the judgment motion for call, Kinder made suggest- acquittal. statements disagree.2 We 2. To the that extent White frames the issue in jurisdiction misunderstands of the fed- subject terms of jurisdiction, federal matter explained, eral courts. juris- As have “the used building that apartment two-unit the district de novo review purview fell within judgment property rental a motion

court’s denial Hamilton, 844(i). holding, so- v. States of 18 U.S.C. See acquittal. 844(i) Cir.2012). “only that, In con although § noted Court that in an argument is ‘used’ that sidering property a defendant’s to applies support commerce,” insufficient “[t]he affects ‘activity’ evidence that jury’s verdict convictions, uphold we will such unquestionably real estate is rental of light most in the “if, the evidence viewing apartments Because the activity.” Id. an sub there is government, to the favorable tenants at building were rented the convic support evidence stantial fire, concluded the Court time of the (internal marks omit quotation Id. tion.” in an “being used that the property ted). evidence is “Substantial Accord Id. commerce.” affecting activity ac of fact could finder reasonable cannot, not, chal does ingly, White support and sufficient adequate cept as proposition general lenge the beyond guilt of a defendant’s a conclusion activity an duplex was of the Van rental v. States doubt.” United a reasonable 844(i). See affecting commerce Green, F.3d Medeiros, 13, 16 F.2d omitted). Thus, (internal marks quotation Cir.1990) (“Russell (1st holds thus unless we must verdict stand jury’s “the used per property se property rental fact trier of no rational determine commerce.”) activity affecting interstate elements the essential have found could however, an is- presents appeal, doubt.” beyond crime reasonable by Russell— directly addressed 337 sue Royal, United States used in can be house still Cir.2013). rental whether commerce activity affecting 844(i), it is unlawful Under 844(i) vacated if ], destroy! damage[ “maliciously ] or previously court has This fire was set. destroy, by means or damage attempt[ to] affirmative. question this answered building, vehi- any explosive, of fire or an Parsons, 993 F.2d 38 v. States See United property cle, personal or other real or Cir.1993). Parsons, concluded we commerce or foreign used interstate property rental used as that a house or for- affecting activity interstate any proper- as real qualified years or three two beyond dispute It is eign commerce.” inter- activity affects ty “used an “activity that real estate is the rental of 844(i) even state commerce” 844(i). Russell affects commerce” for two months vacant though it been 862, States, 858, 105 471 U.S. v. United at 40. fire. See id. of the (internal at the time (1985) 829 85 L.Ed.2d S.Ct. ... “vacancy alone idea that omitted). Russell, Rejecting the the quotation marks rental the a ‘removal’ from constitute^] of a that the arson held Supreme Court sufficiency of considered a and is therefore merely of the element is one dictional element id.; 844(i), also United See see proscribed by and evidence claim. activity criminal (3d Williams, an individual demonstrated in 299 F.3d whether is it States a court's consti- ("A activity does affect property’s circumstance use in adjudicate statutory power to tutional or an essential is affecting commerce interstate Carr, 271 F.3d case.” United crime of arson under element of the Cir.2001) (internal quotation marks which, 844(i)” of crimi- all elements ”[l]ike omitted). connec- claim of an insufficient A offenses, prove ... Government must nal challenge commerce tion interstate doubt.”). beyond a reasonable case government's of the one of the elements market,” id. at determined that ber 15. A reasonable finder of fact could there was sufficient evidence to support conclude on this evidence that Keteherside the conclusion that the house was rental still right had a to occupy premises at (1) property at the time of the fire because the- time of the fire and that Dickens tech- the house was insured as rental property nically had right to do so up until the fire, (2) at the time of the and having day before Second, the fire. as in Par- sons, found that the defendant commissioned the duplex Van was insured as a fire, jury could also have reasonably commercial rental property at the time of inferred that the defendant fire, never intended and White claimed and recovered to take the house off the rental market. policy limits of the after the fire. This See id. is strong evidence that duplex func- tioned Indeed, commercial property. Applying Parsons to the case be “once the business nature property of the us, fore we conclude that there is sufficient at established, issue is courts will presume, support the record to the con absent indicia of an intention to perma- that, clusion fire, the time at nently remove property from the duplex being “used in interstate commerce, stream of requisite ... commerce or in activity affecting [an] interstate commerce nexus exists.” interstate ... commerce.” Williams, 256(internal at quota- 844(i). Significantly, the Van duplex tion omitted). marks and alterations had been as a rental property used record any is devoid of indication that more than years ten at the time of the fire. White intended to the duplex remove from The fact that both tenants were no longer the rental market. To the contrary, White living in at the moment the fire told Officer Bledsoe prior to the fire set, course, compel does not he had Doug asked Kinder to clean the conclusion that it had been from removed duplex so that White could rent it to ten- Parsons, the rental market. See again ants or sell it. Additionally, in light at 41. It is not even clear that White’s of the overwhelming evidence that White Apartment tenant, Christy Keteherside, arson, commissioned the jury could actually vacated duplex. Although she reasonably infer that White had no inten- living sleeping elsewhere, Keteh tion whatsoever to take the off the erside still kept furniture and children’s market but instead wished to collect the clothing toys there periodically proceeds while it was still con- checked on her property. items Those sidered property a rental under the terms were burned in the fire. And although Parsons, of the policy. See apparently filed an action eviction F.2d at 41.3 against Keteherside, he never her served process thus, with there is no indication White contends that is no long- Parsons — Keteherside was obligated to vacate and er good States, law after Jones v. United could not living have resumed in 848, the du 1904, 529 U.S. 120 S.Ct. 146 L.Ed.2d plex at (2000). the time of the fire. Jones, White did 902 disagree. the obtain an evicting 844(i) order Dickens from Supreme § Court held that does not Apartment 2 but permitting her remain to to a apply private, owner-occupied resi- there until the day before the fire —Octo- dence being only that is used “for every- perverse 3. It would abe result indeed if the duplex, thereby defeating the interstate could "remove” the from the requirement. nexus by planning market directing the arson of in been used itself have must property a commer- rather than living” family day affecting com activity or in an 1904. commerce 120 S.Ct. Id. at purpose. cial 854, 120 1904. Jones at S.Ct. the Id. that merce.” argument the rejected The Court assessing 844(i) outline two-part § us a gives scope-of the fell within residence 844(i), 18 U.S.C. applicability to secure being “used” it was of the banker, analysis requires which an out-of-state loan from mortgage “Junc a de then building itself, and by an tion issued policy an insurance to obtain af function of whether that natural termination carrier, to receive out-of-state Id. at commerce.” at interstate id. fects suppliers. See out-of-state gas from added). Adher (emphasis ex- 120 Court S.Ct. 1904 1904. The 855-56, 120 S.Ct. 844(i) framework, the Court conclud ing § to this term “used” that the- plained family private of an burning for commer- ed employment active “mean[s] for com actively used being residence not merely passive, not purposes, cial scope of the fell outside purposes commerce.” mercial to connection past or passing, 844(i). Seizing on the 120 S.Ct. Id. at ar- “past,” White the word use of Court’s the two- with is not inconsistent Parsons government requires the gues that Jones we have ex- analysis. As part Jones being rented is property prove to permit is sufficient plained, evidence is the fire very moment by a tenant at duplex was the conclusion being used i.e., presently set, that it is apartment rental functioning a two-unit White, mo- According to commerce. simply no fire. There is time of the at the duplex, the vacated ment Dickens the function suggesting evidence ceased ex- relationship landlord-tenant Thus, fire. changed being no evidence There ist. light most the evidence viewing premises renting the to continue sought conclude government, to the favorable fire, White at the time of the new record there is substantial .the from only possible conclusion argues the verdict.4 support no duplex was is that the Van the evidence affecting activity III. “used in” longer being 844(i) when interstate commerce the district challenges next it. Kinders burned 29 motion for of his Rule denial court’s challenging the suffi acquittal judgment of Parsons. inconsistent Jones a convic support evidence to ciency of the focus in Jones primary The Court’s to arson fact accessory after the tion for nature of the use function prove 844(i). In order Count building purposes the fact under accessory after Jones, emphasized Supreme Court ” demonstrate must in,’ government man- which ‘used “qualifying words underlying ob “(1) anof the commission destroyed damaged or that “the date whole, which, ade “taken argu- structions makes related We note White a law.” United separately controlling quately he does not raise state ment—which challenge to the 364 n. part of his Ryan-Webster, 353 F.3d but includes proof the interstate com- government's Cir.2003) (internal marks quotation jury the district court’s Moreover, merce element—that omitted). light the over For the same contravene Jones. White, instructions any error whelming evidence sufficiency reject of the White’s reasons would court's instructions district Jones, we find argument based on have been harmless. in- court’s error in the no reversible district (2) States; fense against the United Adkins, ers.5 Like Thompson testified knowledge offense; defendant’s of that that had White told him of the Kinders’ (3) by assistance the defendant in involvement, he would have notified the prevent order to apprehension, trial, or SIU for follow up with law enforcement. punishment of the offender.” United White’s statement to Thompson was Rosa, States v. De La 221 charged in Count 3—the accessory-after- (5th Cir.1999). government The the-fact charge. that White violated 18 U.S.C. when he White renews the argument knowingly made a false and misleading throughout made trial that this evidence statement to an representative insurance prove insufficient to that he acted with for the purpose of helping Kinder —and the intent to assist Kinder in avoiding ultimately apprehension. himself—avoid apprehension. White contends that his trial, At government presented the statement Thompson was nothing more testimony of two Nationwide Insurance than a “passing comment” to an insurance representatives who interviewed White. representative who was not connected to First, Adkins, Charles who was assigned law enforcement and had not indicated to

by Nationwide to assess White’s insurance any such connection Thus, existed. claim based on fire, the Van duplex testi- White concludes that there is nothing in fied an October 2009 interview evidence showing that he was any aware days fire, few after the White suggested statement he made incriminating Kinder that one of the may tenants have started passed would be along the police. in response fire to White’s efforts to district rejected court White’s argument, evict them. Adkins indicated that he noti- pointing light out that in of the evidence fied Special Nationwide’s Investigation that Kinder committed arson at White’s (“SIU”) Unit about White’s statement that behest for the Nationwide mon- may intentionally have started the ey, the jury could easily infer that White fire and that the SIU’s function was to was aware that preventing Kinder’s appre- follow up law enforcement officials. hension personal best interest White’s false statement to Adkins was and that his interview statement in fact did charged in Count 1 as overt act in aid Kinder Thompson have furtherance of the arson conspiracy. Sec- reported the matter Nationwide ond, Stephen Thompson, a Nationwide In- agree SIU. We with the district court. Special surance Representative, Claims testified that he conducted a The dispute in- only recorded concerns the third terview of White in February element of an accessory-after-the-fact about four months after the fire. charge government essen- offered —whether tially repeated Thompson proof statement White assisted Kinder for the previously made to Adkins speculating purpose of “preventing] apprehen [her] that a may fire, sion, trial, tenant have set the punishment.” Rosa, De La any White omittéd mention of the Kind- 171 F.3d at 221. dispute White does not 5. Thompson was sent interview White successfully fire arose. White separate about made claim White under moved any in limine to exclude evidence of policy Nationwide fire insurance for anoth- Thus, February this jury 2010 fire. er damaged fire—one that personal purpose unaware Thompson's inter- February residence on During view and recording heard redacted of the interview, Thompson inquired about White’s interview. previous fire-loss subject claims and the

234 fall himself then White Kinder and that evidence substantial was that there scrutiny. police under of commission in the participated Kinder that White and duplex arson the Van most light Viewing the evidence he had com- because this offense of aware satis- we are government, to the favorable it. commit to Kinders the missioned of fact could “any rational trier that fied the of is no evidence there argues White of the crime elements find essential however, assist, to intent requisite United doubt.” a' reasonable beyond (4th to an insurance 197, his statement 212 Cone, he made 714 F.3d v. States agent. We Cir.2018). a law enforcement has not White agent, conclude that must ac- Here, all the that “heavy evidence disagree. burden” carried not prevent sufficiency “in order of the evidence that acted is companies show a Foster, Based Id. v. 507 of Kinder. challenge, apprehension” (4th Cir.2007), a there- 233, make and we evidence, jury could 245 on denial infer- district court’s common-sense affirm the fore couple of obvious acquittal on judgment infer that for a First, jury could motion ences. Kinder 3.6 helping that Count aware well per- in his and arrest was avoid detection IV. dem- subsequently best interest —as sonal in- testimony trial by Kinder’s that is onstrated final contention Second, light in that criminating incorrectly concluded White. district court and law enforcement sentencing purposes, both evidence that duplex, the Van 2K1.4, interested were company “dwelling” the insurance U.S.S.G. was a that common for ar sentencing provision the fire and origin of the relevant 2K1.4, an insurance if person that offenses. Under would tell sense son-related claim was as a “dwell that a fire is classified adjuster who found 24, is see information turn that the base offense level really ing,” arson would 2K1.4(a)(l)(B), if the enforcement, a reasonable it is but to law U.S.S.G. over other than it was as “a structure categorized inference that White understood is level offense is dwelling,” the base avoiding apprehension ... a his benefit 2K1.4(a)(2)(B). Indeed, 20, see U.S.S.G. on the tenants. suspicion cast longer no duplex was facts, that the Van only logical pur- argues view of these fire because time of the “dwelling” at the attempt misdirection for White pose error, White alleged This to en- it was vacant. Thompson was his interview contends, advisory sentene- in an resulted very possibility even the sure be an acces- principal felon cannot ... a argument, panel directed 6. After oral himself_”). But see sory fact to after the on supplemental briefs parties to submit 1174, 1180 Triplett, 922 F.2d United States to be con- permissible for White whether it is guilty Cir.1991). Although accessory after victed sentenced abettor is abetting, an aiding aider com- that he himself fact to an arson offense Tarkington v. principal. See considered United States principal. See mitted as Cir.1952). 63, States, Taylor, 322 F.3d input parties’ on Having benefit of the show violation (finding sufficient issue, in district neither was raised this which language” but “plain appeal, we satisfied on are given court nor inapplicable concluding § was plain er- warranted princi- reversal guilty as a "was found that defendant position Jewell, no take of review. We crime”); standard ror also State v. pal see to the in the first (1991) any error occurred on whether N.C.App. 409 S.E.2d J., ("It place. dissenting) to reason (Wynn, stands

235 ing range of 51 to 63 months rather than the nature of the dwelling did not change range 33-to^41-months that would by virtue of the year seven vacancy” and applied have if the district court had not noted that “whether vacancy, physical determined that duplex was a deterioration, use, altered otherwise, a “dwelling” guideline. under the point in time exists at which a dwelling loses its character as residence and be- In considering a sentencing comes a ‘mere’ building.” Id. (emphasis application court’s of the guidelines, we added). “legal review conclusions de novo and ... Nothing of here, the kind occurred how- factual findings for clear error.” United ever, as the duplex Van was vacant at most (4th Layton, 330, States v. 564 F.3d 334 couple of weeks before the fire was Cir.2009). The term “dwelling” is not de set. There absolutely no indication fined in § 2K1.4 U.S.S.G. or the accompa duplex had ever functioned or nying commentary. We accord undefined would ever function anything other than guideline terms their “ordinary, contempo a dwelling. As the Fifth Circuit observed rary Chacon, meaning.” United States v. in concluding that a three-month seasonal (4th Cir.2008). 250, 533 F.3d 257 In ordi vacancy period did not remove a motel terms, nary a “dwelling” ais “house or from “dwelling” 2K1.4, status other structure which a person or per [tjhere is ... a marked difference be- live,” sons including “the apartment or tween seven-year abandonment of building ... occupied by family as a building Jackson and the three- place of residence.” Law Black’s Dictio month seasonal vacancy of the motel. nary ed.1990); see United States Whatever “point in time” at Smith, which a 390, 354 F.3d 397-98 Cir. building’s nature altered, core 2003) it was (employing the Black’s Law Dictio just months, reached in three partic- nary “dwelling” definition of for purposes ularly light of the fact that the motel 2K1.4); of U.S.S.G. see also United again be occupied by visitors in Ramirez, States v. 708 F.3d 302-03 the near future. (1st Cir.2013) (using Black’s to define “dwelling” purposes Smith, of U.S.S.G. at F.3d 398. We are likewise 4B1.2); McClenton, United States v. 53 confident the period during brief which the (3d Cir.1995) (same). The Van completely empty of ten- clearly fell within the scope of ants did not cause it to lose its essential definition foregoing and functioned as character as a dwelling, since, especially a “dwelling” for more than years previously mentioned, one of the tenants it burned down. White not suggest does was under no order of eviction and contin- Instead, otherwise. he argues that ued to personal property maintain in her duplex lost its character as a dwelling once unit at the time of the fire. duplex, the tenants premises. vacated the See which still power in a habit- Jackson, 22 F.3d condition, 585 able clearly had not been aban- (5th Cir.1994). He likens his circum doned to the that it point longer could no stances to presented Jackson, those be considered a “dwelling.” See wherein the Fifth Circuit determined that Ingles, States v. defendant did not burglarize a “dwell (concluding camp that “a house”

ing” for 4B1.2(1) purposes U.S.S.G. that had been vacant for several months at by breaking into vacant house. Jackson the time of the fire was still a “dwelling” rejected government’s “the argument light 2K1.4 “in fact that at’ who arson, i.e., someone as for the pal structure fire the the time (internal Id. offense.” residence”). [the] “commit[ted] functioning furnished omitted) and citation marks quotation and conclude argument reject White’s clearly err court did not and district that the also Defendant awas “dwell- accessory after concluding an being of convicted 3,§ of U.S.S.G. meaning U.S.C. per 18 ing” within Specifically, fact. an offense “[w]hoever, knowing that § 2K1.4.7 com- has been States the United against V. or as- receives, relieves, comforts mitted, or hinder in order to offender sists the reasons, affirm we foregoing For punish- or trial apprehension, his prevent in full. and sentence convictions fact.” ment, accessory after anis AFFIRMED. case, misrepresented Defendant this In ten- of his that one agent to an dissenting in WYNN, Judge, Circuit an the arson in may have committed ants part: very even “to attempt ensure criminally not be held person should A then White and that Kinder possibility an ac- and as principal aas liable both scrutiny.” police fall himself Here, himself. fact to cessory after the at 234. Ante aiding of convicted Defendant De view, not allow law does my In not law does arson, which the abetting principal aas responsible to be fendant liability for principal distinguish from himself after assisting arson and that Defen- I would hold arson. Because has ex Ninth- As the Circuit the fact. being an of convicted also cannot dant be pun not be “should a defendant plained, ar- the same the fact for accessory after fact, even accessory after as an ished son, respectfully dissent. I own his preventing though he assisted of apprehension apprehension I. Taylor, 322 v. States United co-offender.” Criminal “[Pjrovisions of Federal Cir.2003). (9th is This 1209, 1212 F.3d “ only ‘whoever that not plain make Code” 3,§ the of “[u]nder ” whoever also but an offense’ commits only oc fact accessory after the of fense “ commands, induces, counsels, ‘aids, abets, offender; an assists person when curs commission, a princi- is procures its accessory after committing the person States, 194 Tarkington v. United pal.’” To inter himself. the ‘offender’ fact is not 18 (4th (quoting 63, 68 F.2d the ab would lead § 3 otherwise pret words, 2). dis- “[t]he other every principal subjecting result surd and accessories principals between tinction Id.; charge.” the fact accessory after an Id. abolished.” has been the fact Jewell, N.C.App. State v. see also J., (1991) (Wynn, dis 757, 764 409 S.E.2d case, Defendant jury convicted this felony (“A in a participant senting part) Defendant abetting aiding and arson. fact accessory after may no more be princi- as a therefore, criminally liable is, Cir.2011); Blauvelt, challenge Amendment 7. White’s Sixth Grubbs, F.3d v. States ob- application two-level court's district Benkahla, 530 Cir.2009); United States justice enhancement struction Cir.2008). Accordingly, by cir- clearly foreclosed 3C1.1 U.S.S.G. reject See, this claim. e.g., precedent. cuit than one who commits larceny may be does seriously impact the fairness and guilty receiving the goods which integrity of the proceedings. Id. himself stolen.... It follows that since plain While error is a high hurdle, I an aider and abettor to a felony is treated nevertheless conclude that Defendant the same the principal that committed First, clears it here. as a law, matter of offense, felony he too cannot be an Defendant cannot be a principal offender accessory after fact to that same of- accessory after the fact to himself. (internal fense.” quotation marks and cita- Therefore Defendant’s accessory after the omitted)). tion fact conviction constitutes clear legal err or.* Such reasoning supported by the fact As for

that 18 whether 3 is “based the error upon” Shelly affected Defen- States, dant’s substantial rights, “in 76 F.2d 483 Cir. most cases it 1935). means that the error must Jury Fed. have prej- been & Instr. 22:02 Prac. udicial: It must ed.2014); have (West affected the see outcome also 18 U.S.C. 3 of the district ann.) Olano, court proceedings.” Leg. Revision Notes & Reports 507 U.S. at (same). Here, S.Ct. 1770. Shelly, the Tenth Circuit de question, without it did. If law fined an accessory as “he who is not the applied been correctly case, in this Defen- offense, chief in the nor present at its dant could not have been both convicted performance, but is way some concerned a principal participant in the arson and as therein, either before or after the fact an accessory after the fact. In other committed” and as “one who participates words, legal the clear error directly affect- felony too remotely to be deemed to ed the outcome of the district pro- court (internal principal.” 76 F.2d at 487 quota ceedings. omitted). tion marks and citations It de “accessory fined after the fact” as “one sum, I that, conclude as a matter of who, knowing felony to have been com law, a defendant cannot be convicted as a by another, mitted receives, relieves, com principal and as an accessory af offender forts, or assists the felon in order hinder ter Nevertheless, fact. Defendant the felon’s apprehension, trial, or punish here was convicted both. That consti ment.” Id. tuted clear prejudicial that, error view, my seriously detracts from the fair I appreciate that Defendant failed to Olano, ness of proceedings. 507 U.S. preserve this issue and that we view it at 11 S.Ct. 1770. Accordingly, I only through plain error lens. That would vacate Defendant’s accessory after limits us to correcting those errors that the fact conviction and respect therefore “plain” are and that “affect substantial fully dissent. rights.” Olano, States v. 507 U.S. 725, 732, 113 S.Ct. 123 L.Ed.2d 508

(1993) (internal quotation marks and cita- omitted). Further,

tion generally re-

frain from intervening where the error

* majority opinion stand, cites United liability States v. opinion its failed to ac- Triplett, Cir.1991), 922 F.2d 1174 go- knowledge, analyze, let alone the conundrum ing way the other on this allowing issue. While the a principal to be convicted of undoubtedly Fifth Circuit acting accessory allowed convictions as an after the fact to him- principal for both accessory-after-the-fact self.

Case Details

Case Name: United States v. Michael White

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Nov 17, 2014

Citation: 771 F.3d 225

Docket Number: 13-4949

Court Abbreviation: 4th Cir.