The common law felony of arson was a crime “against
another’s habitation,
not against another’s property but against his .life and safety at his place of abode.”
State v. Midgeley,
A jury in the United States District Court for the Western District of Pennsylvania convicted Shawn Williams of malicious destruction of property by fire in violation of § 844(i), and mail fraud in violation of 18 U.S.C. § 1341. The District Court sentenced Williams to 60 months’ imprisonment followed by 60 months of supervised release on both counts, to run concurrently. The defendant timely appealed the judgment of conviction and sentence. We affirm. 2
I.
In the early morning hours of September 23, 1998, a street sweeper smelled and saw smoke rising from the roof of the former state unemployment office on West Otterman Street (Otterman building) in Greensburg, Pennsylvania. Eventually, the fire department brought the fire under control and a fire investigator concluded that the fire had been intentionally set.
Police officer Paul Cyak found four fuel containers in the vacant Otterman building. One of the containers was a blue kerosene-type can -with a Sheetz convenience store label with code numbers on it. The can had been delivered to Sheetz in New Stanton, Pennsylvania, late in the evening of September 22, 1998, and it was purchased at 1:32 a.m. on the morning of the fire. The New Stanton Sheetz store was located between Williams’s home and the Otterman building.
Officer Cyak learned that in April 1998, Williams and Nat Lamolinara, his ex-business partner, acquired the building for $111,000. Williams and Lamolinara made a down payment of $11,000; Lhormer Realty held the remainder of the mortgage.
From April 1998 until the September 1998 arson, Williams displayed a large banner on the front of the building advertising its availability for rent. He also *253 advertised the property for rent in a local newspaper. During that period, Lamoli-nara had on several occasions shown the building to potential tenants. Thomas, at Williams’s behest, had also shown the building to Primestar-Excalibur (Primes-tar), a satellite television company with headquarters in Virginia.
On September 22, 1998, the evening before the Otterman building burned down, Primestar and Williams had negotiated the terms of an agreement to lease the building. Later that evening, Williams faxed the proposed lease to Louis Busato, Primestar’s Northeast Regional Sales Manager, who then forwarded the lease to corporate headquarters. Upon corporate approval of the lease, it would have taken effect on September 25, 1998. During the weeks leading up to the arson, Primestar had stopped looking for other buildings because its “heart was set on this place.” Busato planned on moving employees into the building within two to four days of signing the lease.
Although the purchase price for the building was $111,000, it was insured by Lebanon Mutual Insurance Company (Lebanon Mutual) for its replacement value at approximately $500,000. Lebanon Mutual settled Williams’s claim, paying $336,000 to Williams and Lhormer Realty, holder of the mortgage. Lebanon Mutual also paid Williams another $64,000 for the cost of removing the debris from the land.
In due course, the Government charged Williams with and convicted him of malicious destruction of property by fire in violation of 18 U.S.C. § 844(i), and mail fraud in violation of 18 U.S.C. § 1341.
II.
Williams raises three issues on appeal: (1) there was insufficient evidence to satisfy § 844(i)’s affecting interstate commerce element; (2) the District Court’s jury instruction was plain error; and (3) Congress’s failure to provide a “safety valve” for first time offenders under § 844(i) violates the equal protection component of the Fifth Amendment’s Due Process Clause. We now turn to the first issue and begin our discussion of the interstate commerce element of the offense.
A property’s use in an activity affecting interstate commerce is an essential element of the crime of arson under 18 U.S.C. § 844(f).
United States v. McGuire,
Williams asserts that the destruction by fire of a vacant building is “clearly a local activity” that is not the concern of the federal government. He, therefore, argues that according to
United States v. Lopez,
The federal arson statute, although it does not regulate commercial or economic activity, regulates the damage and destruction of business property that has the requisite interstate nexus.
Lopez
“did not purport to overrule cases upholding application of the Commerce Clause power to wholly intrastate activities satisfying the requisite nexus to interstate commerce.”
United States v. DiSanto,
In
Jones,
the Court addressed the question of whether arson of an “owner-occupied private residence” falls within § 844(i)’s ambit. The Court held that arson of such a dwelling is not subject to federal prosecution under § 844(i).
Id.
at 850-51,
The
Jones
Court contrasted
Russell’s
facts with
Jones’s.
The Court focused on § 844(i)’s use of the phrase “used in interstate or foreign commerce,” finding that the key word is “used.”
Id.
at 854,
Thus, the proper inquiry is an analysis of the “function of the building itself, and then a determination of whether that function affects interstate commerce.”
Id.
(internal quotations omitted). The Court ruled that the word “used” is “most sensibly read to mean active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce.”
Id.
at 855,
In the instant case, Williams focuses on the Supreme Court’s discussion regarding the word “used” and argues that, because the Otterman building had not been leased at the time of the fire, 4 it was not, under Jones, being actively employed for commercial purposes. We reject this argument. Gaydos is instructive.
Gaydos
involved a defendant who argued that the house she burned down was not rental property because at the time of the arson it was vacant, uninhabitable, and she had no intention of renting it again.
Although ruling in favor of the defendant, in dicta we stated that a temporary cessation of activity at a business property does not place the property beyond the reach of § 844(i).
Id.
at 509 (“This argument has been accepted by every Court of Appeals that has addressed the issue.”);
accord United States v. Martin,
once the business nature of the property at issue is established, courts will presume, absent indicia of an intention to permanently remove the property from the stream of commerce, that the requisite nexus between the property and interstate commerce is satisfied, notwithstanding temporary changes or modifications in the use of the property.
Gaydos,
in each of th[o]se cases, however, there was a clear intention that the property at issue either remain in, or return to, the stream of commerce.... [T]he trial records in th[o]se cases demonstrate that the particular properties were treated by them owners as if they had never left the stream of commerce.
Id.
Here, in contrast to Gaydos, a reasonable trier of the facts could have concluded that Williams intended the building, at the very least, to return to the stream of commerce. He actively pursued such a course. *256 Evan Thomas, the building’s former owner, testified that, from April 1998 until the September 1998 arson, there was a sign in front of the Otterman building advertising office space for lease. Lamolinara, Williams’s ex-business partner, testified that there was a banner advertising space for lease, and an advertisement for the same in a local newspaper. Lamolinara also testified that he had shown the building “several times ... to potential tenants.” Thomas testified that he had, at Williams’s behest, shown the building to Primestar.
Furthermore, Louis Busato, Primestar’s Northeast regional manager, testified that he and Williams had negotiated terms to lease the Otterman building. Indeed, the proposed lease had been drafted by Williams and faxed over the evening before the building burned down. The arson occurred on September 23, 1998; the lease was supposed to commence on September 25,1998. Busato planned to move employees into the building within two to four days of signing the lease because conditions were so cramped at them present location. Primestar had even stopped looking for a building because its “heart was set on this place.” Thus, Primestar relied on its belief that it would soon occupy the Otterman building and terminated its search for other rental space. It can be reasonably assumed that Primestar, a Virginia corporation negotiating to lease Pennsylvania property, had its interstate commercial activities disrupted when it learned of the destruction of the Otterman building. A rational trier of the facts could find that this satisfied the requisite interstate commerce nexus.
On the other hand, Williams asserts that
United States v. Ryan,
In contrast with the building in Ryan, Williams’s Otterman building was available for rent at the time of the fire; the lease execution was in the process of consummation. Moreover, the conclusion that the interstate commerce element is satisfied is not based merely on predictions of the building entering commerce or its potential for commercial re-entrance, but rather is based on the Otterman building’s actual entrance on the market: it had been available for rent for the six months preceding the arson. Ryan, therefore, is not on point.
Williams’s argument ultimately hinges on an overly-literal and narrow definition of the word “used.” As the Government points out, “[t]he logical extension of this would be a holding that federal jurisdiction does
not
attach at night, because the business employees are at home sleeping, and no one is actually putting the building itself to active use in interstate commerce.” The District 'Court wisely noted the sophistry of Williams’s argument when it inquired: “[S]uppose the tenant signed the lease but doesn’t move into the building next week? Would we say then it’s not actively in interstate commerce?” As
Gaydos
suggests, “once the business nature of the property at issue is established, courts will presume, absent indicia of an intention to permanently remove the property from the stream of commerce, that the requisite [interstate commerce] nexus” exists.
III.
Williams further argues that the District Court erred in its jury instructions. Because Williams did not raise the objection at trial, we reverse only if we find plain error.
United States v. Wolfe,
Under plain error review, the defendant bears the burden of establishing that the error prejudiced the jury’s verdict. Id. Even if the defendant establishes plain error, Federal Rule of Criminal Procedure 52(b) provides this Court with discretion whether to correct the error. 5 Id. We are not required to correct the error. Id. Instead, we reverse when the defendant is actually innocent or where, regardless of the defendant’s innocence, the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (alteration in original) (internal quotations omitted).
Williams asserts that the District Court committed plain error by instructing the jury to determine whether the property was used in “an activity affecting interstate commerce” rather than modifying “commerce” with the word “substantial” to track Lopez’s language. The instructions, however, must be looked at as a whole in order to determine whether the jury was apprised of the issues and applicable law.
Limbach Co. v. Sheet Metal Workers Int'l Ass’n,
The District Court instructed the jury as follows:
The word “commerce” refers to all of the various types of economic relationships which may exist between parties, such as buying, selling, bartering or renting.
The phrase “interstate commerce” means commerce which affects more states than one.... It also includes activities wholly within a given state, but which ha[ve] a substantial effect on commerce between or among the states.
The phrase “used in interstate commerce or used in an activity affecting interstate commerce” means active employment for commercial purposes, and not merely a passive, a passing, or a past connection to commerce.
The determination of whether property is used in interstate commerce or in an activity affecting ' interstate commerce, . should focus on the function of the property and whether that function affects interstate commerce.
In this case, you must make a determination as to the function of the [Otter-man] building ... at the time of the fire, and then you must make a determination of whether that function affected interstate commerce.
The Court’s instructions tracked § 844(i)’s language. Section 844(i)’s language refers to destroying a building used “in any activity affecting interstate or foreign commerce.” Thus, the statutory lan *258 guage lacks Lopez’s “substantial” modifier, and speaks only of an activity affecting— not necessarily substantially affecting — interstate commerce. Indeed, the District Court started this part of its instruction by quoting the statutory language by referring to “[t]he phrase ‘used in interstate commerce or used in an activity affecting interstate commerce.’ ” Therefore, in the subsequent instructions, the Court spoke of the jury’s responsibility, pursuant to § 844(i)’s statutory language, to determine whether “property is used in interstate commerce or in an activity affecting interstate commerce.”
Tost-Lopez
case law from the Supreme Court also speaks in terms of “affecting commerce,” and not “substantially affecting commerce.” In
Jones,
the Court noted that Congress required that the destroyed property have been used in an activity affecting commerce before such arson is covered under § 844(i).
Furthermore, it is doubtful that lay jurors comprehend the distinction between activities that affect interstate commerce and activities that substantially affect interstate commerce. Because § 844(i)’s
affecting interstate commerce
provision is an element of the criminal offense, a defendant is entitled to a jury determination of whether the element has been satisfied beyond a reasonable doubt.
Apprendi v. New Jersey,
A District Court’s instruction tracking the exact language of a statute is not plain error, or indeed error at all. Moreover, even if it were error, there is no evidence establishing Williams’s innocence.
IV.
Finally, Williams argues that § 844(i) violates the Fifth Amendment’s equal protection component because it does not provide him with access to 18 U.S.C. § 3553(f). Section 3553(f) is a safety valve provision that permits “less culpable defendants in drug-related crimes who fully assist the Government to avoid the application of the mandatory minimum sentence.”
United States v. Pratt,
We apply rational basis review to Williams’s constitutional challenge.
United States v. Hawkins,
Section 3553(f) provides a safety valve for some drug offenders, so that they can avoid draconian mandatory minimum sentences. There are five factors that must be satisfied before a drug offender has access to the safety valve. Assuming ar-guendo that § 3553(f) applies to federal arson, two of the conditional factors make Williams ineligible for the provision. First, the defendant must not have used violence in connection with the offense. 18 U.S.C. § 3553(f)(2). Arson is, however, an *259 inherently violent act, and Williams therefore cannot satisfy that condition. Second, the defendant must have “truthfully provided to the Government all information and evidence the defendant has concerning the offense” 18 U.S.C. § 3553(f)(5). Williams has yet to admit his culpability and has not provided the Government with any information relating to the offense. Thus, he cannot satisfy that condition. Accordingly, even assuming Williams’s eligibility for the safety valve, he does not satisfy two of the five prerequisites.
However, Congress plainly had a rational basis for not providing a safety valve for federal arson. As the District Court held, providing a safety valve for nonviolent first-time drug offenders has a rational relationship to the legitimate Government goal of providing exceptions to draconian mandatory minimum sentences for such individuals. On the other hand, held the Court, it is entirely rational that Congress would not create such an exception for arson, “which is an extremely dangerous and violent offense,” and by definition is excluded from the safety valve. The Court cogently continued: “Arson is not a nonviolent offense. For that reason, it seems to the Court clear that Congress saw a rational distinction between drug offenses carried out in some nonviolent way and crimes which by their very nature involve violence.”
Skinner v. Oklahoma,
Williams’s equal protection challenge, in contrast to Skinner, does not concern a basic civil right; it is not subject to strict scrutiny, but to a rational basis review. Congress rationally could have concluded that it did not want to provide a safety valve for first-time violent offenders. Indeed, as noted earlier, even first-time drug offenders are not eligible for the safety valve if the crime involved violence. Congress’s decision to deny a safety valve for first-time violent offenders rationally relates to its legitimate interest in providing such a safety valve for first-time nonviolent drug offenders. Accordingly, the District Court did not err in ruling that § 844(i)’s lack of a safety valve does not violate the equal protection component of the Fifth Amendment’s Due Process Clause.
V.
In summary, the Government produced sufficient evidence to satisfy the interstate commerce element and convict Williams of violating § 844(i). Furthermore, the District Court committed no reversible error in its jury instruction or in holding that § 844(i) does not violate Fifth Amendment equal protection. Accordingly, the District Court’s judgment will be affirmed.
Notes
. 18 U.S.C. § 844(i) provides: "Whoever maliciously damages or destroys ... by means of fire ... any building ... used in interstate ... commerce or in any activity affecting interstate ... commerce shall be imprisoned for not less than 5 years and not more than 20 years."
. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
. Williams frames the question in terms of federal subject matter jurisdiction. The District Court, however, properly exercised jurisdiction.
United States v. Carr,
. At oral argument Williams repeatedly referred to the Otterman building as "abandoned.” “Abandoned property” is defined by Black’s Law Dictionary as "[p]roperty that the owner voluntarily surrenders, relinquishes, or disclaims.” Black's Law Dictionary 1233 (7th ed.1999). Williams actively sought to lease the building in the months before the arson. He did not — voluntarily or otherwise — surrender, relinquish, or disclaim his interest in the building. Therefore, the Otterman building was not an abandoned building, but was an unoccupied building available for rent.
. The rule provides: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”