United States v. Ralph Ramey, United States of America v. James "Bo" Payne

-, Applying probation at with the revocation tables 1267-68. here, 7B1.4, Chapter policy Denard is correct as- the tables are Granderson incorrectly statements, serting binding that the district court de- which are not on the 3565(a) required that§ Sentencing a sentence termined courts. See United States Com mission, Manual, imprisonment. A(l), months Be- of at least twelve Pt. Guidelines Ch. intro, initially (Nov.1993) exposed to a (indicating cause Denard was comment. twenty-one range of fifteen to Guideline policy Chapter statements of 7 are in months, probation, upon revocation of provide guidance tended the district required to sentence him Blackston, district court was courts); see also United States imprisonment Cir.) of at least one- (3d to a term of (policy statements (or twenty-one months seven third Chapter merely advisory 7 are and are not months). courts), binding on the district -, S.Ct. further asserts that the dis Denard (1991).* Thus, L.Ed.2d 634 district courts him required trict court is to sentence consis suggested ranges in are free to consider the probation tent revocation tables in with the tables, probation revocation but are not 7B1.4(a) Sentencing of the Guidelines. Ac impose bound to a sentence within that table, cording appropriate to the revocation range. Denard should be sentenced to three to nine argues Denard months incarceration. III. although minimum his sentence is dictated Accordingly, judgment we vacate the 3565(a) months, by § to be seven the court court the district and remand the case for probation look to the revocation should tables resentencing opinion. consistent with this a maximum revocation determine sentence argues that to of nine months. He sentence AND VACATED REMANDED. require him than to more nine months would upward departure, which he asserts is Indeed, court in unwarranted. the district

sentencing Denard to fifteen months stated departing upward pursuant it was application note 4 of 7B1.4 of the Sentenc America, UNITED STATES of Guidelines, which states: “[w]here Plaintiff-Appellee, original sentence was result of a down departure upward departure ward ... Ralph RAMEY, Defendant-Appellant. may warranted.” be America, UNITED STATES of Supreme Court Granderson Plaintiff-Appellee, ambiguity regard resolved the with to both the minimum and the maximum revocation 3565(a). applying § sentence when PAYNE, James “Bo” Defendant- Court held that the minimum revocation sen Appellant. tence is one-third of the maximum sentence 93-5178, Nos. 93-5194. Guidelines, originally applicable under the Appeals, United States Court and the maximum revocation sentence is the maximum, Fourth Circuit. which in Denard’s case Guidelines Granderson, twenty-one months. at Argued Feb. 1994. 1268-69. There May Decided fore, the court does not district need to de part upward to Denard to sentence incarcer up twenty-one Although

ation of months. may produce

this rule results inconsistent (1992) ("[w]here policy policy *We limit our discussion to the statements ... a Chapter realizing prohibits taking contained in contexts, that in some statement a district court from action, policy binding specified statements are on the the statement is an authoritative See, e.g., guide line"). meaning applicable guide- district courts. Williams v. United to the of the States,-U.S.-,-, Hicks, Jr., A. Charles- ARGUED: Nathan ton, WV, Payne; Philippe Mare appellant for WV, Charleston, appellant for Ra- Turgeon, Chandler, Rights mey. Thomas Evans Civ. DC, Justice, Div., Washington, Dept, of U.S. Turner, BRIEF: P. appellee. ON James for Gen., Dimsey, Acting Atty. Dennis J. Asst. Justice, Div., Rights Dept, of Wash- Civ. DC, appellee. ington, MICHAEL, HALL and Circuit Before OSTEEN, Judges, and United States Judge for Middle District of District Carolina, sitting by designation. North Judge by published opinion. K.K. Affirmed majority opinion, in which HALL wrote the joined. Judge Judge MICHAEL OSTEEN concurring part in and opinion wrote dissenting part. in OPINION HALL, Judge: K.K. Circuit Ralph Ramey ap- Payne and James “Bo” and sentences for vari- peal their convictions of the arising from the arson ous offenses couple. af- of an interracial We residence firm.

I. p.m., an arsonist at 10:30 On June a mobile home or arsonists burned down occupied by and Alex Nelms JoAnn Vance Logan County, Virginia. Mill in West Pecks white; is black. Nelms Vance later, Nearly years full James “Bo” two by a Payne Ralph were indicted jury car, in grand jug federal connection with the they Green’s drove off. They charged burning they of the trailer. were trailer, As neared the Vance/Nelms (I) conspiracy deprive Payne with Vance and stop. told Green to rights, in out, Nelms of their civil violation of 18 got Ramey boasting with to Green that (II) 241; U.S.C. willful interference with they going were niggers “to burn the out.” housing rights, fair in violation of 42 U.S.C. Green testified that “frightened” by he was (III) 3631(a); use of fire the commission revelation, and he “went home as fast as felony, of a violation of 18 U.S.C. [he] could.” (IV) 844(h)(1); building arson of a Payne’s mother get saw the two out of activity affecting used in an They Green’s car. porch, came over to her violation of 18 U.S.C. Both filed they spoke briefly where with her. She then trials,1 separate motions for which the dis- noise, went to bed. Soon she heard a loud trict court denied. out, looked and saw the trailer on fire. She November, six-day A trial was held (her Ramey saw her son and son was inside 1992. Vance testified that she was in bed trailer, trial), her she said at and she asked object

when she heard strike the trailer Vance, her go help son to which he did. liquid splash. and a She looked out of the neighbors, Phillip Other Kimberly and window and saw flames. She and Nelms ran Deskins, went to Vance’s aid. Mr. Deskins put They outside and tried the fire out. saw standing two men on the bank behind unsuccessful; were the trailer burned to the trailer, recognized one of whom he as ground. Payne. An assistant fire state marshal testified fire, Payne After the Ramey reap- and deliberately that the fire was set three peared at Green’s house. Both Green and places, liquid and an inflammable was used they his mother testified that gaso- smelled as an accelerant. Ramey’s pants, line on and his boots were Ramey nearby, Payne’s lives and mother liquid. soaked with some sort of Green’s lives across the road from the tráiler. Vari- gave Ramey dry mother pants, and he that, fire, prior ous witnesses testified to the pants washed his washing and boots in her Ramey Payne many both and had made de- machine. rogatory general statements about blacks in months, ensuing days Ramey and and their hatred of Vance and Nelms in boasted about his deed. He told his sister- particular. Ramey told his own father-in-law in-law, cousin, step- his ex-wife’s and his somebody should “burn out” Vance and daughter that he had burned the trailer. Nelms because he did not like the idea of a fire, About six months after the he asked living white woman awith black man. Ra- prowess Gilmer Mister to relate his to some mey’s sister-in-law related similar remarks. persons riding in boys his car: “Tell these Mister, According Payne to his friend Gilmer they don’t want to mess ... with me predicted had someone could throw I nigger, cause took care of the didn’t I.” through get away firebomb the trailer and Ramey Chris Cox asked if he had burned the with it. trailer, Ramey responded to which with a fire, day Ramey, Payne, On the and father-in-law) laugh. (Ramey’s Bob Thomas Jerry up others met at Green’s house Payne question, got asked a similar and They hollow from the trailer. Vance/Nelms grin for his answer. Later, Green, spent day drinking beer. Ramey, Payne riding Payne Ramey trial, and went around in Both testified at Payne stop Ramey Green’s car. asked Green to at and each blamed the other. said that Payne’s Payne simply Payne’s sister’s house. went in and he stood at mother’s trailer gallon gasoline. asked to borrow a Payne Payne, His and watched set the fire. on brother-in-law, White, hand, gave Delbert him the other claimed that was in he gasoline plastic jug. Payne put some bathroom at his mother’s when he heard a Payne during renewed his motion the trial it- self. 606 127-128, Filbum, him 317 U.S. crash; Ramey later confessed to

loud (1942) (farmer’s 90-91, growing L.Ed. 122 the fire. that he had set consumption “affects” com wheat for his own Payne Ramey and on jury convicted merce, buy to avoid because farmer is able sentenced to 108 all counts. Moreover, marketplace). ing in the wheat I, II, and months, Payne on counts inquire beyond whether does not the Court consecutive a 60-month Both received IV. “any rational basis” for believ Congress had years of III and three on count sentence commerce was affected. Heart Finally, court or- supervised release. States, Motel, Atlanta Inc. v. United $10,766.97, amount of restitution dered 241, 258, 13 L.Ed.2d 85 S.Ct. jointly are liable for which (1964). Finally, Congress if can act severally. Clause, act, may through it the Commerce Payne appeal. Ramey and legislation. its true motive for the whatever 357-58; Id., at 85 S.Ct. at 379 U.S. Smith, 38, 48, 307 U.S. II. Mulford (1939); 648, 652, 83 L.Ed. Weber challenge their arson con- defendants 131, 132, Freed, because, assert, they destruction of victions matter, practical As a L.Ed. 308 beyond trailer the reach the Vance/Nelms decisions of 1937- least since the watershed power regulate to interstate Congress’ of 1942,4 political process, and not commerce. courts, has the states’ real defense been against commerce-based federal incursions.5 A. nearly background in With this boundless mind, particular statute at we turn to the literally The Commerce Clause2 here. issue Congress only power “regulate” gives commerce, though, foreign like interstate powers, it congressional all other enumerated B. potential straitjacket of its from the

is freed 844(i), Congress pro § In 18 U.S.C. Necessary Proper by the literal terms any building of used in an hibited the arson Congress may regulate non-com Clause.3 activity The lan that affects commerce. merely “affect” inter mercial activities 844(i) § guage of is intended to and does long so as the class of activi state Congress’ power to its constitutional exercise regulated has an effect on commerce ties States, 858, limit. 471 U.S. notwithstanding Russell United aggregate, and 859, 105 85 L.Ed.2d 829 activity only a single instance of the has E.g., trivial or theoretical effect. Wickard Const., I, 8, Metropolitan § 5.See Garcia v. San Antonio Transit

2. U.S. art. cl. 3. 528, 549-551, Authority, 105 S.Ct. 469 U.S. 1005, 1016-18, (1985) (Com- Const., I, 8, 18, giving Congress 3. U.S. art. cl. by "freestanding merce Clause is not measured power “[t]o make all Laws which shall be neces- conceptions sovereignty”; of states' inter- state carrying sary proper execution the for into protected by are the structure of the federal ests system foregoing Powers....” it). ability participate and their This (9 Ogden, 22 U.S. idea is not new. In Gibbons Wheat.) 1, 197, (1824), 6 23 Chief Justice L.Ed. Laughlin Corp., Steel 301 4. See NLRB v. Jones & remarked, Marshall 1, 615, (1937) (up U.S. 57 S.Ct. 81 L.Ed. 893 Congress, wisdom and the discretion of Act); holding Wagner Darby, States v. United identity people, with the and the influ- their 451, (1941) 85 L.Ed. 609 U.S. 61 S.Ct. possess at elec- ence which their constituents tions, prohibition transportation (upholding in inter on are, instances, this, many as in other products of manufactured with state commerce that, war, declaring example, as the sole labor); Wrightwood Dairy States v. child Co., United relied, they have to secure restraints on which 523, 86 L.Ed. 726 315 U.S. 62 S.Ct. Clause’s] Commerce abuse. [the them from They (1942) regulation (upholding intrastate of sales of people which the are the restraints on compete milk because such sales with "inter rely solely, representative often in all must governments. Wickard, milk); 82. state" property, rental so the had relationship” Russell involved automobile “some problem arriving Supreme business), had no at a trucking Court their owner’s quick and unanimous result —“all business (1991); of the com- property” is within reach L.Ed.2d 979 May- United States v. power. speculated, (8th The Court howev- Cir.1990) merce berry, 896 F.2d 844(i) er, might “every protect (sawmill not thirty days that had been closed for 861-862, private home.” Id. 106 S.Ct. at yet character); had not lost its commercial Moran, United States v. 137- (7th Cir.1988) (use computer by owned implicitly rejected Russell the rationale of making phone business and interstate calls appel- case relied on Second Circuit purposes enough for business to establish Mennuti, lants. United States v. activity).6 commercial (2nd Cir.1981), F.2d 107 the court held that 844(i) apply property did not that was trailer had been manu- Vance/Nelms purpose. not used for commercial Of Carolina, factured in North but had been course, power the commerce is far broader stationary years. at Peeks Mill for sixteen It that, holding than and Russell’s that the full well, electricity, receives as from an inter- saps §in commerce is exercised power grid. state Do these facts constitute any vigor. Mennuti “activity” “uses” in an that affects com- hand, many not On the other there are merce? think the We second of the two is applying dwellings, cases Though the clincher.7 the trailer doubtless perhaps prosecutors federal do not pittance energy consumed but a from the routinely prosecute choose to arsons without power company’s grid, consumption, its com- interest, independent some basis for federal similarly bined with that of all situated build- rights prosecuted such as the civil violations ings, has a most definite effect on interstate here. The Seventh Circuit has taken the commerce. The class of activities not Stillwell, lead in United v. 900 States F.2d “affects” but is in fact the raison (7th denied, Cir.), 838, 1104 cert. 498 U.S. 111 Congress d’etre of an interstate business. 111, (1990), 112 5.Ct. L.Ed.2d 81 where it protect power has the this commerce from receipt gas held natural that has destruction fire. enough. traveled in interstate commerce is circuit, most, This like has never had to III. application address to non-busi Parsons, property, e.g., ness challenge United States v. The defendants the suffi (4th Cir.) 38, (single family ciency 993 F.2d 40 n. 3 of the evidence to sustain the convic dwelling property if, used as rental affects com tions. cannot disturb the verdicts We merce, considering light so court does not have to decide what the evidence a most fa might bring circumstances government, resi vorable to the we conclude that denied, statute), any dence within the cert. rational trier of fact could have found 266, 114 S.Ct. 126 L.Ed.2d 218 that the elements of the crime had been (1993), particularly surprising proved beyond and it is not a reasonable doubt. United Cir.1990), (4th 1184, Vogt, the circuits strain to find some v. “busi States 910 F.2d 1193 1083, perhaps jarring ness” nexus to avoid the 111 rt. denied 498 U.S. S.Ct. ce 955, application (1991); of the commerce at its 112 L.Ed.2d 1043 see Jackson v. 307, 319, 2781, Virginia, outermost extent. See United States v. 443 U.S. 99 S.Ct. (5th Cir.) (house (1979). 804, 2789, Shively, Ramey 927 F.2d 808 660, (8th Ryan, support by purporting In United States 9 F.3d 666 conviction vacated, 1993), rehearing granted, Cir. en banc privately “refuse to extend” to a its decision (8th Cir.1994), U.S.App. 1994 LEXIS 140 a case "solely pur- owned home used for residential involving property, recognized business the court poses.” “receipt gas and use of natural from across activity directly affecting state borders is an in requires "activity" 7. The statute a "use” However, terstate commerce.” the court im that affects commerce. We do not decide wheth- plied in dicta that this direct effect on interstate prior er movement in commerce is such a “use.” enough would not be in and of itself commerce 608 any had ever made daughter, whether she many ignore reasonable

Payne invite us Ramey. appar- against He of accusation the testi- sort and to find inferences inculpatory would be: she ently knew8 what the answer witnesses incredi- many government mony of Ramey molesting her little sister caught of the had province invade would ble. We proceeded to drive the Turgeon Velma. v. United either. Glasser jury if we did 468, by asking Linda over and over 457, point home 86 States, 315 U.S. details, dutifully she related. which (1942). about The evidence was suffi- L.Ed. 680 down under cross-exami- did not break She cient. lying. that she was and admit nation IV. extrinsic Turgeon tried to introduce then separate for a Payne moved twice supposedly showed that evidence denied mo trial, court both the district He called a charge was a lie. molestation “highly favored trials are tions. Joint care police and state foster state officer cases,” is commit and severance conspiracy impeach Hughes. Their try to worker to discretion. United court’s to the district ted nowhere,9 and the district testimony went (4th Tedder, 1437, 1450 F.2d 801 States stop to it to avoid eventually put a court denied, 938, Cir.1986), 107 480 U.S. cert. assigns time. now further waste of (1987). Payne 94 L.Ed.2d S.Ct. error, prej- emphasizes the ruling as against says that the evidence molesta- by the unrebutted udice he suffered him, dispari against but stronger than much quite naturally government charge. The tion only very rarely proper ty in evidence is of his Ramey was the author responds that United States ground for severance. not be heard to predicament and should own (4th Cir.), Mitchell, not be. The district complain now. He will 469 U.S. goose chase permit a wild court’s refusal plenty of There was L.Ed.2d confusing evidence was into irrelevant Payne, event. implicating evidence not an abuse of discretion. holding of distorts the also States, VI. Bruton v. United (1968), into a rule 20 L.Ed.2d grouped three of court district testimony always has that a eodefendant’s sentencing.10 base the four offenses on the other defen unduly prejudicial effect of highest the offense level offense level was only with the Confronta Bruton dealt dant. group. Using the 1989 in the the convictions admitting of the out-of- problem tion Clause post avoid ex offense levels to Guidelines nontestifying codefend- confession of a court high that problems, court found facto Here, testified and ant. both defendants grouped offense was for a est offense level Bru- one another. were cross-examined I, conspiracy. rights This the civil Count no relevance. ton has plus the offense level for offense level is in the of discretion There was no abuse (arson). U.S.S.G. underlying offense Payne’s separate for a trial. motions denial 2H1.2(a)(2) (1989). Arson’s offense level is § characteristic. specific offense plus a V. (1989). § The district court 2K1.4 U.S.S.G. characteristic —where Turgeon, chose an 18-level Ramey’s lawyer, Marc a “knowingly created substantial Ramey’s step- arsonist Hughes, former asked Linda (the answer; Hughes girls’ Ramey Margaret court that Turgeon did not move to strike ex-wife) instead, Ramey's had withdrawn the impeaching busily mother and went it. he about inquiry, charges, cut off further the district court nothing Margaret Ramey's did actions because police testified that he had taken 9. The officer credibility. daughters’ impeach Hughes her and Velma from both Linda statements Ramey assaulted Hughes effect that had to the Velma, use of fire in the commission Ramey 10.The count for never arrested on the but that was mandatory felony 5-year consecutive a simply his a carries charges. stated The case worker sentence, grouped. IX See Part and so was not Hughes that Velma had made file showed Turgeon explained below. accusation. When bodily injury. justice. or dence—the hallmark of risk death obstruction of 2K1.4(b)(l). Romulus, The court thus arrived at See United States (2 18). (4th Cir.1991), + level 26 + 6 The base offense argue that the level should have defendants because the court should have if inadvertently destroyed

been Even he an inno picked specific Valentine, offense characteris- a 12-level cent off-season he nevertheless de 2K1.4(b)(3). a residence. liberately attempted justice. tic—arson of to obstruct They say concept 3C1.1, of a correctly applied § that the “residence” district court necessarily implies bodily a or finding clearly risk death its factual is not erroneous. injury. quite This assertion is not true. The may dwelling arsonist know that a is unoccu- VIII. it, might

pied perhaps when he burns or he trial, pending out on While bond Ra- residence in a manner that does not burn the mey drinking lawyer’s was beer with his bodily a “substantial” risk of death or create investigator, Doug grew bellig Yanick. He event, injury. any guideline the arson erent, go and he told Yanick that if he had to contemplates specific that its offense charac- jail, “somebody niggers should burn those overlap, provides teristics will often maybe judge out and burn the out too.” resulting highest one in the offense level reported Ramey’s Yanick the incident 2K1.4(b) (1989). apply. should U.S.S.G. then-lawyer, Charles Phalen. When Phalen The district court found that it was a mere authorities, report did not the incident to “fortuity” that neither Vance nor Nelms was result, Yanick Judge did. As District Co- seriously injured or killed the fire. The himself, penhaver lawyer recused a new in fact or district court did not err law. (Turgeon) appointed Ramey, was sentencing, bond was revoked. At VII. threats, Judge of these Chief District Haden fire, months after the he while Some gave Ramey two-point enhancement for knew that he and were under investi justice. Ramey argues obstruction of gation, Payne Ramey. from received letter idle, points the threats were to his first it, Payne destroyed opening it without be lawyer’s testimony sentencing had he cause he believed that the letter was about reported not the remarks because he did not trying the fire and that to estab seriously. take them The district court rea court held that lish alibi. district obstructing soned that threats can succeed in potentially destruction of this material evi justice if the threatened lend them cre jus attempt dence constituted an to obstruct dence, notwithstanding that the threatener tice, Payne’s and so enhanced offense level ability carry actually lacked the wfll or by two. U.S.S.G. 3C1.1.11 Here, actually them out. the threats did appeal, On contends that because justice by prompting obstruct the recusal of testify did not about the contents of judge replacement of the district and the it, open the and because he did not the letter Ramey’s counsel. As between the threaten- government failed to show that the letter was threatened, er and we think that the threat- investigation If material to the of the fire. ener should bear the risk of misunderstand sentencing findings required death-and-taxes ing. finding The district court’s is not clear certitude, Payne right: Ramey would be ly erroneous. conceivably friendly could have written a cheer, expressing good perhaps note or IX. chip recipe. impart chocolate cookie Sen- tencing findings require Finally, five do not such certi- the defendants received years Payne’s testimony admits that his con- consecutive to their sentence on the tude. purpose destroy grouped using fire in corn- scious was to material evi- offenses for the includes, investigation judicial Application an or note 3 to this section in material to official examples ..., a “non-exhaustive" list of of obstruc- proceeding attempting to do so[J” or justice, “destroying tion of ... evidence that is added). (emphasis They argue commeree ...” The cen- felony. that this of a mission “activity” question For what is the 18 U.S.C. tral is: improper, is sentence only 844(h)(l)’s In this ease there is one require- trailer “used”? consecutive sentence “activity” the trailer is “used” explosives, rath- answer. The only to uses of applies ment daily living. an for is The trailer is owner- contrary, statute the the er than fire. On more, nothing occupied dwelling, nothing imposed under sentence provides that any says I which less. cannot find case “any not be concurrent that section shall simple living privately- act in one’s Though the imprisonment.” other term of activity affecting dwelling is an inter- owned continues, “including imposed for statute state commerce. or felony explosive was used in which carried,” plainly a mere illus- language is majority sidesteps question real The language of inclusion Certainly its tration. by saying in an the trailer is “used” of sen- into exclusion cannot be tortured “activity” that affects commerce because it underlying fire-related felonies.12 tences for electricity pow- from an interstate consumes judgments are affirmed. The grid. reasoning That twists the words of er True,

AFFIRMED. Congress too much. trailer’s occu- pants electricity. electricity But con- use MICHAEL, concurring in Judge, Circuit “activity” sumption is not the for which the dissenting part: in part and Instead, trailer is trailer is “used.” only dwelling occupants “used” as a where its cases, I must This is the meanest of but carry general “activity” daily liv- out the majority opinion, Part II of the dissent from activity ing. Such a use and should on the inter- which affirms the convictions affecting not be construed as commerce. I do not believe that state arson count. living up in a trailer a remote hollow Suppose in the next case under County, Virginia, was ever Logan West hunting torches a trailer used as a someone “activity affecting interstate meant to be electricity any cabin that does not have or foreign under 18 U.S.C. or commerce” utility activity public hookup. other § 844ffl. living. there would be recreational Yet case, not so much the In this the issue is majority’s reasoning, govern- under the Congress’s power under the Com- extent of could a case. Food—like the ment have actually Congress it merce Clause as is what electricity consumed in the trailer here —is majority §in was blinded said placed deep Virginia in the West woods. assumption its that the commerce trailer, might Spam the hunters eat 606) “nearly (maj. op. at boundless” Omaha, Chattanooga, Moon from from Pies failed to take a hard look at the therefore and Corn Flakes from Battle Creek. These statutory language. foods move interstate commerce and eat- (in targeted torching) makes it a crime to “mali- them trailer Section building activity affecting ... much an com- ciously” “any used would be as set fire affecting consuming electricity ... any activity ... interstate merce as this ease. right theory conspiracy also attack their sentences on weird that the was com- 12. The defendants bases, variety plete gaso- none of which have of creative when obtained the (each jeopardy They (thus, merit. allude to double suppose, they line to set the fire we used requires proof arson, of the of conviction of an offenses gasoline in the commission of but not does) element that no other count and cruel and fire). punishment (compare unusual Harmelin v. Mich “issues,” sentencing In addition to these defen- 957, 2680, igan, 115 L.Ed.2d 501 U.S. 111 S.Ct. undeveloped, conclusory dants' brief teems with (1991)). prosecutors They complain 836 that the error, assertions of most of which are narrowed “manipulated” by taking advan the indictment sufficiency sub-attacks on the of the evidence or prohibit tage of the numerous different statutes challenges rulings conduct, which, not, on the admission of certain ing their true or is a beef Though reject evidence. we have considered and they up Congress. The defen should take with arguments, all these we will not further clutter showing prosecutors dants make no that the already opinion pedantic they our cluttered with a uncon framed the indictment as did for "analysis” purpose. Finally, they stitutional offer the down- of them.

611 terms, however, By seem to its the statute majority opinion thus “would The applies property that in “used” an interstate commerce the notion of stretch “activity” that affects commerce.... logic.” v. beyond limits of United States the (8th 629, Cir.), 861-62, Hansen, 4 Id. at 105 681 n. S.Ct. 2457.1 755 F.2d denied, 884, 105, 88 474 U.S. 106 S.Ct. cert. 844(i), § targeted building, Under the residence, 85 private L.Ed.2d whether or not it is a must relationship activity have “some to an of com- (ex- every circuit Supreme Court Andrini, mercial nature.” United States v. ours) and, today, dealing cept the Seventh (9th 1094, Cir.1982); 685 F.2d 1095-96 cf. required has at least some with the issue 1117, Mayberry, v. United States 896 F.2d tinge activity hold- commercial to the before (8th Cir.1990) (“the 1120 interstate nexus 844(i) § ing applies. that 844(i) § [under ] is not met without a show- ing that there is indeed some interstate char- States, 858, In 471 U.S. Russell United involved”) property (emphasis acter to the (1985), 2455, L.Ed.2d 829 the 105 S.Ct. 85 added). if a Supreme recognized that residence Court required Some circuits have found the link use, a use of commercial char- had a second targeted to interstate commerce the acter, subject it could be the offense (1) dwelling was rented or was advertised for 844(i). Specifically, held under Court Turner, sale, rent or see United States v. 995 applies apart- that the section to a two-unit - (6th denied, Cir.), F.2d 1357 cert. U.S. building property. as ment used rental (1993) -, 282, 126 L.Ed.2d 232 that the rental of real estate is an Court said (rented residence); single family United activity “recogniz[ing] that affects (4th Parsons, Cir.), States 38 cert. apartment local rental of an. unit is - denied, -, 266, 114 U.S. 126 S.Ct. merely an element of a much broader com- (1993) (2) (same), L.Ed.2d 218 or was used in properties.” Id. at mercial market rental business, the resident’s see United States v. However, 862, denied, 105 S.Ct. at 2457. after re- (5th Cir.), Shively, 927 F.2d 804 cert. viewing legislative history, the Russell 2806, 111 S.Ct. saying (1991) Court could not have been clearer (property L.Ed.2d 979 owned and apply property: mortgage by paid does not to all resident’s interstate truck business, put up and used to truck driv bill, In the floor debates on the final al- layovers on ers to conduct business on recognized coverage though it was that the Barton, weekends); United States v. broad, extremely of the bill was the Com- (2d Cir.), denied, F.2d 224 cert. 454 U.S. Chairman, Celler, Representative mittee (1981) (illegal expressed opinion “the mere home). gambling private run in club See bombing private under home even (8th Voss, also United States 787 F.2d 393 bill would not be covered because of the Cir.), question Congress whether the would have (1986) dicta, (finding, 93 L.Ed.2d authority under the Constitution.” connection to interstate commerce a va sum, legislative history suggests that business, by cant residence owned real estate protect Congress at least intended to all resale, being by rehabilitated for and insured property, carrier). business as well as some addi- cases, interstate In all of these property might descrip- tional fit that property residential had at least some con tion, every perhaps but not home. nection to a commercial venture.2 Congress purposes affected for the 1. Even if has the under the commerce was Clause to reach arson committed building housing Commerce a defunct "Fun when a home, against owner-occupied private it did and Fitness Center” was leased the owner power through not choose to exercise that arsonist) (and corporation. to an out-of-state Ryan, words of See United States v. building sup- The fact that this commercial (8th Cir.1993) (Arnold, J., F.3d ing), dissent- plied by gas natural from out of state was cited vacated, (8th granted reh'g erabanc Cir. Jan. jurisdictional as a further basis because “the 5, 1994). receipt gas from across state and use of natural Ryan, 2. In United States v. 666-67 (1993), Eighth Circuit held that interstate taught Virginia in also consis- she was not within the today, this circuit had Before 844(i)).4 §of link to commer- ambit required at least some tently 844(i) allowing § to activity be cial before Mennuti, su- Judge Friendly’s analysis in Grossman, States United In invoked. 844(i) pra, explains why § should not extend (4th Cir.1979), blew the defendants F.2d 534 strictly in owner-occupied to an home that is convictions, affirming the In up a backhoe. private use: “statutory of breadth” recognized the we mind, ordinary To the destruction carefully 844(i), detailed § nonetheless but private dwellings would not constitute two established interstate nexus” the “sufficient used buildings in the destruction of inter- had been by The backhoe the evidence. in foreign state or commerce or activi- lines, it was financed twice sold across state foreign ty affecting interstate or com- companies, by and and insured interstate up by pictures merce. The summoned time it although commercial use not in things these words include such as railroad being advertised na- destroyed, it was was stations, depots, buildings, airport bus publication, tionally in the trade for sale using from out of factories raw materials recently, in Rock and Dirt. Id. at 537. More shipping products out of state or Parsons, private that a home rented we held Crossing use in the area between state[.] years, although vacant at out for over two affecting commerce and use we (the having it torched owner the time was buildings of an reach such as the offices hiring thoughtfully her tenant before evicted company receiving premiums insurance Russell, arsonist) was, in under “used an disbursing from outside the state and ben- activity affects interstate com- lines, ” efits and loans across state or of a 993 F.2d at 40.3 merce company delivering within the state oil purchased company from another that had expressly to Two courts have refused ex- state, brought it into the or hotels and residences. See private tend to Mennuti, (2d per- serving imported food to restaurants States F.2d 107 United Cir.1981) homes, traveling sons from one state to another. (concluding private that two property, one of which was a rental which residence is not used in interstate [A] materials, fi- with out-of-state were built foreign simply ... it or commerce institutions, by lending nanced interstate telephone ser- received electric supplied utilities were not with interstate engaged in companies vice from or affect- commerce); activity affecting in an “used” ing commerce.... Montgomery, United States v. F.Supp. (citations omitted).5 F.2d at 109-10 (D.D.C.1993) (holding private a home supplied by the District of Columbia inter- The better reasoned decisions such as utilities, employing housekeeper from Mennuti allow only state a one conclusion Virginia, being used its resident as a A does not have “interstate case. trailer place prepare curriculum for a seminar character” or affect commerce because its (1990), activity directly affecting interstate is the case I have borders is However, explicitly private commerce.” Id. the court found which holds that a home’s use of decision, utility (gas) enough trigger to extend the as did the Sev- "refuse[d] an interstate Stillwell, see [in enth Circuit United States The Stillwell court admitted that its infra 4], property purely private 844(i)[.]" which is note nature, was "an construction extension home, privately owned used simply unsupport- such as Id. at 1111. The extension is purposes." solely Id. for residential at 667. goes beyond plain scope able because it statutory language. Parsons, "express we were no careful required bring opinion on the circumstances 5.Judge Friendly’s conclusion Mennuti property' is not 'rental residence trigger advertising a home for rental would not within the statute.” Id. at 40 n. 3. That care is Russell, light discounted in must be today. thrown to winds However, quote which came later. the above good him still makes sense and is consistent from Stillwell, (7th message with Russell's that some use of com- 4. United States v. 900 F.2d 1104 Cir.), required. mercial character is electricity in non- occupants use the routine daily activities of life.

commercial

Torching of an interracial the residence

couple despicable the most of acts. Never-

theless, respectfully dissent from Part II of I majority opinion the trailer’s use jurisdictional provide a basis

here does not prosecuting the defendants under 18 I do concur all other

U.S.C. majority opinion (including

aspects of the VII)

parts through III that affirm defen- depriv-

dants’ convictions sentences for

ing rights, willfully civil the victims their

interfering housing rights, with fair and us- felony. of a fire the commission America,

UNITED STATES of

Plaintiff-Appellee, CLYBURN,

Charles E. Defendant-

Appellant.

No. 93-5234. Appeals,

United States Court of

Fourth Circuit.

Argued March 1994. May

Decided

Case Details

Case Name: United States v. Ralph Ramey, United States of America v. James "Bo" Payne

Court Name: Court of Appeals for the Fourth Circuit

Date Published: May 17, 1994

Citation: 24 F.3d 602

Docket Number: 93-5178, 93-5194

Court Abbreviation: 4th Cir.