Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit
3-14-1997
United States v. Gaydos Precedential or Non-Precedential:
Docket 95-3468
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Recommended Citation "United States v. Gaydos" (1997). 1997 Decisions. Paper 62. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/62
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 95-3468
UNITED STATES OF AMERICA,
Appellee
v.
OLGA GAYDOS,
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 95-53)
Submitted under Third Circuit LAR 34.1(a) January 22, 1997
BEFORE: NYGAARD and LEWIS, Circuit Judges, and SCHWARZER, District Judge*
* The Honorable William W. Schwarzer, Senior District Judge for the Northern District of California, sitting by designation.
(Opinion Filed March 14, 1997)
Bonnie R. Schlueter Shaun E. Sweeney Office of the U.S. Attorney 633 U.S. Courthouse Pittsburgh, Pa. 15219
Counsel for the Appellee
Karen S. Gerlach Office of the Federal Public Defender 960 Penn Avenue 415 Convention Tower Pittsburgh, Pa. 15222 Counsel for the Appellant
OPINION OF THE COURT
NYGAARD, Circuit Judge:
Olga Gaydos appeals her conviction for malicious destruction
of property by means of fire, contending that the evidence at
trial did not meet the interstate commerce nexus required under
18 U.S.C. § 844(i). She also argues that the district court
failed to make the required findings to support her sentence and
restitution order; and, that the district court improperly
refused to reach the merits of her untimely post-trial motions
for judgment of acquittal and for a new trial. We conclude that
the government failed to prove the jurisdictional element of 18
U.S.C. § 844(i), and will reverse her conviction on that count.
We will also vacate the restitution order and remand the matter
for the district court to make the required findings and, if
indicated, enter a new order of restitution. In all other
respects, we will affirm.
I.
Olga Gaydos owned a house located on Shadeland Avenue in
Pittsburgh, Pennsylvania that she rented to William Minor,
Jeannie McComb and their children. In December 1992, a fire of
incendiary origin damaged its garage. Kenneth Evans testified
2 that he saw David Minor (William Minor’s brother) coming out of
the garage at approximately the same time the garage was afire.
There was also testimony that Gaydos offered two other tenants
$15,000 each to burn down the house and that she had suggested
starting a fire in the garage. Gaydos filed an insurance claim
with her homeowner’s insurance carrier for damage to the garage
and contents allegedly lost in the fire.
In June 1993, Fidelity Savings Bank began foreclosure
proceedings on the property. While the foreclosure proceedings
were pending, Gaydos met with Jeannie McComb to discuss a lead
contamination problem the Health Department had found at the
Shadeland Avenue house. McComb testified that at this meeting
Gaydos told her that she (Gaydos) intended to burn down the
house. Gaydos and McComb then supposedly struck a deal whereby
Gaydos would allow McComb, William Minor, and their children, to
move to another house where they could live rent-free if they
remained silent about the fire Gaydos was planning for the
Shadeland Avenue house.
Soon after, Gaydos discussed the lead problem with William
Minor. According to Minor’s testimony, Gaydos told him that she
did not want to put any money into the house to correct the lead
problem. Gaydos also allegedly offered Minor $10,000 to burn
down the house, which he refused. Minor, McComb and their
children, did, however, leave the house and moved into another
house owned by Gaydos. Approximately two weeks later, the
3 Shadeland Avenue house burned to the ground in a fire determined
to be of incendiary origin. Gaydos again submitted a claim to
her homeowner’s insurance carrier.
Gaydos was charged in a six count indictment alleging four
counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 1342
(Counts 1-4), one count of use of fire to commit a felony in
violation of 18 U.S.C. §§ 844(h)(1) and (2) (Count 5), and one
count of malicious destruction of property by means of fire in
violation of 18 U.S.C. § 844(i) (Count 6). Her codefendant,
David Minor, was charged in two of the mail fraud counts (Counts
1 and 2). Gaydos was found guilty on all counts and David Minor
was acquitted of the two charges against him.
Gaydos was sentenced to 51 months in prison for mail fraud
and malicious destruction of property by means of fire, and to 60
months for use of fire to commit a felony. The district court
ordered the sentences to run consecutively for a total of 111
months, to be followed by supervised release for three years.
The court also ordered restitution in the amount of $190,139.42.
II.
Gaydos challenges her conviction for malicious destruction
of property by means of fire, contending that there was
insufficient evidence for the jury to conclude that the
government had satisfied the jurisdictional element of 18 U.S.C.
§ 844(i), which requires the government to prove that the
property was used in an activity affecting interstate commerce.
4 She contends that a vacant and uninhabitable building, with
neither prospect nor intention of being returned to the stream of
commerce, cannot satisfy the interstate commerce nexus required
for a conviction under § 844(i).
Gaydos also argues that the district court committed two
sentencing errors. First, she asserts that a vacant and
uninhabitable building cannot be characterized as a “dwelling”
for purposes of Section 2K1.4(a)(1)(B) of the United States
Sentencing Guidelines. Second, she contends that the district
court did not make the findings of fact necessary to support the
restitution order it imposed.
Gaydos’ final argument on appeal is her claim that the
district court erred by finding that it lacked jurisdiction to
consider her untimely post-trial motions for judgment of
acquittal and for a new trial.
III.
Section 844(i) provides in pertinent part: Whoever maliciously damages or destroys . . . by means of fire or an explosive, any building, vehicle, or other real property or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not more than twenty years . . . .
In Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455
(1985), the Supreme Court held that § 844(i) could be
constitutionally applied to a rented apartment building. The
Court first noted that the statute “express[ed] an intent by
Congress to exercise its full power under the Commerce Clause.”
5 471 U.S. at 859, 105 S.Ct. at 2456. The Court next determined
that the legislative history of § 844(i) suggested that Congress
intended the statute to protect “all business property, as well
as some additional property that might not fit that description,
but perhaps not every private home.” Id. at 862, 105 S.Ct. at
2457. Noting that the express terms of the statute only applied
to property that was “used” in an “activity” that affects
commerce, the Court held that “[t]he rental of real estate is
unquestionably such an activity.” Id. The Court further opined
that the local rental of an apartment unit is an element of a
much broader commercial market in rental properties to which
congressional power to regulate extends. Id. (citations
omitted). Because Russell was renting his apartment building to
tenants at the time he attempted to burn it, the Court concluded
that the property was being used in an activity affecting
commerce within the meaning of § 844(i) and affirmed his
conviction.
Gaydos concedes that Russell clearly stands for the
proposition that renting real estate is an activity which affects
interstate commerce within the meaning of § 844(i). She argues,
however, that Russell is inapposite. First, Gaydos asserts that
the Supreme Court’s recent decision in United States v. Lopez,
115 S.Ct. 1624 (1995), calls the constitutionality of § 844(i)
into question. Second, she contends that even if § 844(i) is
facially constitutional, the evidence was insufficient to prove
6 beyond a reasonable doubt that the house on Shadeland Avenue was
being used in an activity affecting interstate commerce at the
time it was destroyed by fire. We are only persuaded by Gaydos'
second argument.
A.
Gaydos asserts that the district court lacked subject matter
jurisdiction over her alleged offense because § 844(i) exceeds
the authority of Congress to regulate commerce under the Commerce
Clause. In support of her argument, Gaydos relies on the Supreme
Court's recent decision in Lopez. Lopez, she argues, stands for
the proposition that criminal statutes that regulate activities
affecting interstate commerce pass constitutional muster only
where the regulated activity "substantially affects" interstate
commerce.
In Lopez, the Supreme Court invalidated the Gun-Free School
Zones Act of 1990, which made it a federal offense "for any
individual knowingly to possess a firearm at a place that the
individual knows, or has reasonable cause to believe, is a school
zone." 18 U.S.C. § 922(q)(2)(A) (1994); Lopez, 115 S.Ct. at
1626. The Court first observed that § 922(q) "neither regulates
a commercial activity nor contains a requirement that the
possession be connected in any way to interstate commerce." Id. at 1626. It then identified three broad categories of activity
that Congress may regulate under its commerce power: (1) the use
of the channels of interstate commerce; (2) the instrumentalities
7 of interstate commerce, or persons or things in interstate
commerce, even though the threat may come only from intrastate
commerce; and, (3) those activities that substantially affect
interstate commerce. Id. at 1629-30.
Quickly disposing of the first two categories, the Lopez
Court focused on the third category. The Court held that the
statute could not "be sustained under our cases upholding
regulations of activities that arise out of or are connected with
a commercial transaction, which viewed in the aggregate,
substantially affects interstate commerce." Id. at 1631. The
statute failed this test, the Court said, because "by its terms,"
it had "nothing to do with `commerce' or any sort of economic
enterprise," id. at 1630-31, nor was it "an essential part of a
larger regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were
regulated," id. at 1631. Moreover, the Court noted that §
922(q) contained "no jurisdictional element which would ensure,
through case-by-case inquiry, that the [activity] in question
affects interstate commerce," id., and that Congress had made no
legislative findings that the activity so affected interstate
commerce, id. at 1631-32. Without a more definite connection to
interstate commerce, the Court concluded, upholding the statute
would improperly allow Congress to "regulate . . . all activities
that might lead to violent crime, regardless of how tenuously
they relate to interstate commerce," id. at 1632, and exceed the
8 proper limits of the federal government's power.
We conclude that Lopez does not render § 844(i)
unconstitutional. Unlike the statute at issue in Lopez, § 844(i)
contains a jurisdictional element which ensures, on a case-by-
case basis, that the property in question must be "used in
interstate or foreign commerce or in any activity affecting
interstate or foreign commerce . . . ." 18 U.S.C. § 844(i). The
jurisdictional element in § 844(i) makes the holding in Lopez
readily distinguishable. See, e.g., United States v. McMasters,
90 F.3d 1394, 1398 (8th Cir. 1996), cert. denied, 117 S.Ct. 783
(1997); United States v. DiSanto, 86 F.3d 1238, 1245 (1st Cir.
1996); United States v. Sherlin, 67 F.3d 1208, 1213-14 (7th Cir.
1995), cert. denied, 116 S.Ct. 795 (1996); see also United States
v. Bishop, 66 F.3d 569, 585 (3d Cir.) (holding that the
jurisdictional element contained in the federal carjacking
statute, 18 U.S.C. § 2119, "wholly distinguishes Lopez and
renders section 2119 constitutional"), cert. denied, 116 S.Ct.
681 (1995). Moreover, as expressly noted in Russell, 471 U.S. at
861-62 n.9, 105 S.Ct. at 2457 n.9, the legislative history of §
844(i) reflects Congress's concern that it not exceed its
constitutional authority under the Commerce Clause, and
Congress's finding that the statute was necessary to protect
interstate commerce.
We believe that Russell's interpretation of § 844(i), and its holding, that the statute constitutionally regulates arson of
9 business property that satisfies the requisite jurisdictional
element, is still authoritative precedent. Accordingly, we join
the other circuits that have concluded that § 844(i) remains
constitutionally viable under Lopez. See, e.g., McMasters, 90
F.3d at 1398-99; United States v. Gomez, 87 F.3d 1093, 1094 (9th
Cir. 1996); DiSanto, 86 F.3d at 1246; United States v. Denalli,
73 F.3d 328, 329 (11th Cir. 1996), amended in part, 90 F.3d 444
(11th Cir. 1996); Sherlin, 67 F.3d at 1213-14; United States v.
Martin, 63 F.3d 1422, 1427 (7th Cir. 1995). Because § 844(i)
remains constitutionally valid under Lopez, we conclude that the
district court had subject matter jurisdiction over Gaydos'
alleged offense.
B.
Gaydos' best argument is that the evidence was insufficient
to satisfy the interstate commerce nexus necessary to support her
conviction under § 844(i) because the government could not prove
beyond a reasonable doubt that the house on Shadeland Avenue was
used, or intended to be used, in an activity affecting interstate
commerce at the time of the fire. Gaydos did not preserve this
issue for appeal by filing a timely motion for a judgment of
acquittal, so we review the sufficiency of the evidence under a
plain error standard. United States v. Zolicoffer, 869 F.2d 771, 774 (3d Cir. 1989); United States v. Wright-Barker, 784 F.2d 161,
170-71 (3d Cir. 1986); Fed. R. Crim. P. 52(b) ("Plain errors or
defects affecting substantial rights may be noticed although they
10 were not brought to the attention of the court.").
In Zolicoffer, we held that "the failure to prove one of the
essential elements of a crime is the type of fundamental error
which may be noticed by an appellate court notwithstanding the
defendant's failure to raise it in the district court." 869 F.2d
at 774 (citing Strickland v. United States, 339 F.2d 866, 868
(10th Cir. 1965)). We believe that affirming a conviction where
the government has failed to prove each essential element of the
crime beyond a reasonable doubt "affect[s] substantial rights,"
and seriously impugns "the fairness, integrity and public
reputation of judicial proceedings." See United States v. Olano,
507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993). Therefore, we
will review the substance of Gaydos' claim.
Russell established that renting real estate is an activity
that affects interstate commerce for purposes of § 844(i). 471
U.S. at 862, 105 S. Ct. at 2457. Courts interpreting Russell
have held “that rental property is per se property used in an
activity affecting interstate commerce.” United States v.
Medeiros, 897 F.2d 13, 16 (1st Cir. 1990) (citations omitted);
accord Martin, 63 F.3d at 1427; United States v. Parsons, 993 F.2d 38, 40 (4th Cir. 1993); United States v. Patterson, 792 F.2d
531, 534 (5th Cir. 1986). Gaydos' argument, however, is
different. She argues that the house on Shadeland could not have
been considered rental property because at the time it burned it
was vacant, uninhabitable, and she had no intent to rent it
11 again. As such, Gaydos argues that the house was not being used
in an activity affecting interstate commerce at the time of the
fire, and therefore the interstate nexus requirement of § 844(i)
could not be satisfied. We agree.
The government argues that a temporary cessation of activity
at a business property does not place that property beyond the
scope of § 844(i). Again, we agree. This argument has been
accepted by every Court of Appeals that has addressed the issue.1
Moreover, courts in both the Fifth and the Ninth Circuits have
held that the destruction of uncompleted commercial buildings by
means of fire falls within the coverage of § 844(i). See
Patterson, 792 F.2d at 535-36 (partially completed condominium
complex found to affect interstate commerce for purposes of §
844(i) where construction involved out-of-state partners and
project was financed by out-of-state lender); United States v.
Andrini, 685 F.2d 1094, 1096 (9th Cir. 1982) (“construction of a
commercial office building using out-of-state materials is a 1 See Martin, 63 F.3d at 1427 (“property routinely used in interstate-commerce activity does not lose its interstate use simply because of a temporary cessation of that activity”); United States v. Ryan, 41 F.3d 361, 364 (8th Cir. 1994) (en banc) (section 844(i) reaches arson for property that satisfies the interstate commerce nexus “even when the property is temporarily closed or vacant”), cert. denied, 115 S.Ct. 1793 (1995); United States v. Turner, 995 F.2d 1357, 1362 (6th Cir. 1993) (“property routinely used in interstate commerce activity does not lose its interstate characteristics because of a temporary cessation of that activity”); Parsons, 993 F.2d at 41 (“vacancy alone does not constitute a removal [of a house] from the rental market”); Medeiros, 897 F.2d at 16 (a “tenant’s departure . . . did not necessarily sever the property’s ties to interstate commerce for the purposes of § 844(i)”).
12 commercial activity affecting interstate commerce for the purpose
of § 844(i)”). Collectively, this caselaw suggests that 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.
We note that in each of these cases, however, there was a
clear intention that the property at issue either remain in, or
return to, the stream of commerce. Indeed, despite the temporary
removal of the rental or business properties from the commercial
market, the trial records in these cases demonstrate that the
particular properties were treated by their owners as if they had
never left the stream of commerce.2 Moreover, in the two cases 2 See, e.g., Martin, 63 F.3d at 1428 (owner of property testified that vacancy was only temporary and that he intended to rent the property in the future); Ryan, 41 F.3d at 365 (evidence indicated that building housing failed health center was about to be placed on the commercial market for sale); Turner, 995 F.2d at 1361-62 (evidence and testimony proved that owner had intended to re-let vacant building as soon as repairs and renovations were completed); Medeiros, 897 F.2d at 17 (break in rental activity of fictional building was connected to the planned arson and undercover government agent never indicated to defendant that the property was to be removed from the rental market). See also United States v. Mayberry, 896 F.2d 1117, 1119 (8th Cir. 1990) (record reflected that temporarily closed sawmill would have been operational had logs been available to cut); United States v. Doby, 872 F.2d 779, 780 (7th Cir. 1989) (per curiam) (owner of vacant property never took it off the rental market and intended to rent upstairs unit after the house was repaired); United States v. Hermes, 847 F.2d 493, 496 (8th Cir. 1988) (per curiam) (owner of the building advertised the space for lease); United States v. Shockley, 741 F.2d 1306, 1307 (11th Cir. 1984) (per
13 involving partially completed commercial buildings, the courts
relied on significant connections to out-of-state factors to
satisfy the interstate commerce nexus required under § 844(i);
factors which are not present in this case.3
Here, we do not believe that the trial record could support
the conclusion that the house on Shadeland Avenue either remained
in, or was intended to return to, the stream of commerce. In
reaching this conclusion, we are persuaded by a number of
factors. First, the record clearly demonstrates that all tenants
had vacated the house. Indeed, the property was unfit for human
habitation. It was contaminated by lead, and Gaydos had removed
permanent fixtures such as ceiling fans and kitchen cabinets.
Second, there is no evidence that Gaydos had any intent to
improve the living conditions at the house. She undertook no
significant abatement measures to correct the lead problem and
expressly stated that she was not going to devote any money to
fixing the house. Finally, there was no evidence to refute
Gaydos' contention that the house had been permanently removed
from the rental market and had no prospect of generating any
curiam) (owner of closed restaurant did not remove equipment from the building and told persons that the restaurant would re-open after remodeling and repairs were completed). 3 See Patterson, 792 F.2d at 536 (involvement of out-of- state partners and lender sufficient to support link between construction of building and interstate commerce); Andrini, 685 F.2d at 1096 (use of out-of-state materials in construction of building is a commercial activity affecting interstate commerce for the purpose of § 844(i)).
14 future rental revenue.
We conclude that given the confluence of factors in this
case, the house on Shadeland Avenue ceased to be a rental
property before it was destroyed by fire. Consequently, we
conclude that the evidence here was insufficient to establish
that the house was involved in an activity affecting interstate
commerce at the time of the fire. The status of the house as a
rental property was "the interstate hook on which the government
hung its argument." Martin, 63 F.3d at 1427. By failing to
prove that the house was a rental property, the government has
not satisfied the interstate commerce element of the statute.
Hence, the requisite nexus between the property and interstate
commerce necessary to support a conviction under § 844(i) has not
been satisfied and Gaydos' conviction for malicious destruction
of property by means of fire will be reversed.
We note that our decision here may be perceived to be in
tension with the decision reached by the court in Parsons, which
affirmed a jury's finding that a vacant house used as rental
property for two to three years before the fire and that, at the
time of the arson, was insured as rental property, qualified as
"rental property" for purposes of § 844(i). See 993 F.2d at 41. Significantly, the court reasoned that, once the jury concluded
that Parsons had commissioned the arson, "it was certainly
rational to also conclude that Parsons never intended to move
into the house or to remove it from the rental market . . . . the
15 jury concluded that she planned to have the house burned and that
[Parson's notice of intent to vacate the property] was merely a
cover." Id.
The facts here, unlike those in Parsons, demonstrate that
the property at issue was both vacant and uninhabitable at the
time of the fire. Moreover, Gaydos expressed a clear intent not
to take necessary measures to make the house habitable for future
tenants. We conclude that a reasonable juror could not have done
more than speculate that the house on Shadeland Avenue had a real
prospect of generating any future rental revenue.
In sum, we hold that the government could not prove beyond a
reasonable doubt that the house on Shadeland Avenue was used in
an activity affecting interstate commerce. Consequently, we will
reverse Gaydos' conviction for malicious destruction of property
by means of fire in violation of 18 U.S.C. § 844(i).4
IV.
Gaydos also challenges the restitution order entered by the
4 At sentencing, Gaydos' convictions for mail fraud (Counts 1-4) and for malicious destruction of property by means of fire (Count 6) were grouped together and assigned a base offense level of 24 pursuant to U.S.S.G. § 2K1.4(a)(1)(B) (destruction of a "dwelling" by fire). Gaydos argues that because the house was vacant, uninhabitable, and without prospect of future rental, it was not a "dwelling" within the meaning of § 2K1.4(a)(1)(B). Instead, Gaydos asserts that her base offense level for these Counts should have been 20 pursuant to U.S.S.G. § 2K1.4(a)(2)(B) (destruction of a structure other than a dwelling). We need not reach the merits of Gaydos' contention because our reversal of her conviction on Count 6 requires the district court to readjust its application of the grouping rules and to recalculate Gaydos' sentence.
16 district court. More specifically, Gaydos alleges that the
district court failed to make the required findings of fact that
she had the ability to pay before it entered a restitution order
against her. We agree.
In ordering Gaydos to pay $190,139.42 in restitution, the
district court relied on a listing of Gaydos' assets contained in
the presentence report. At the sentencing hearing, however, both
Gaydos and her counsel raised doubts concerning her ability to
pay restitution. The district court never made specific factual
findings with respect to these contentions. Rather, the court
settled the issue by agreeing to a proposal by counsel for the
government that, if necessary, the amount of restitution ordered
could be remitted at a later date.
We have held that specific findings of fact regarding a
defendant's ability to pay are required before a restitution
order may be imposed. See, e.g., United States v. Maurello, 76
F.3d 1304, 1316-18 (3d Cir. 1996); United States v. Copple, 74
F.3d 479, 482-83 (3d Cir. 1996); United States v. Carrara, 49
F.3d 105, 108-09 (3d Cir. 1995); United States v. Turcks, 41 F.3d
893, 901-02 (3d Cir. 1994), cert. denied, 115 S.Ct. 1716 (1995). Deferring such findings until some time after a restitution
order has already been entered, while perhaps both practical and
intuitively correct, does not satisfy this requirement.
Accordingly, we will vacate the restitution order entered against
Gaydos and remand the matter to the district court for it to make
17 specific factual findings on Gaydos' ability to pay restitution.
Gaydos' final argument is that the district court erred by
refusing to reach the merits of her untimely post-trial motions
for judgments of acquittal and a new trial. Federal Rule of
Criminal Procedure 29(c) states in pertinent part, "[I]f the jury
returns a verdict of guilty . . . a motion for judgment of
acquittal may be made . . . within 7 days after the jury is
discharged or within such further time as the court may fix
during the 7-day period." District courts are without discretion
to consider untimely motions for judgment of acquittal under Rule
29(c). Carlisle v. United States, 116 S. Ct. 1460, 1463-64
(1996). Since no extension of time was granted, the district
court properly determined that it was without jurisdiction to
consider the merits of Gaydos' untimely motions for judgment of
acquittal.
Similarly, Rule 33 requires that a motion for a new trial be
filed "within 7 days after verdict or finding of guilty or within
such further time as the court may fix during the 7-day period."
We have held that the time limit for filing motions for a new
trial under Rule 33 is jurisdictional. United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987). A district court is powerless
to entertain untimely motions under Rule 33 unless it grants an
appropriate extension within seven days after the verdict. Id.
(citations omitted). Since there was no extension of time, the
18 district court could not consider the merits of Gaydos' untimely
motion for a new trial.5
VI.
In summary, we will reverse Gaydos' conviction under 18
U.S.C. § 844(i), vacate her sentence and restitution order, and
remand the cause to the district court.
5 Gaydos also contends that the district court erred by failing to hold a factual hearing so that we could rule directly on the merits of her ineffectiveness of counsel claims. We have emphasized our preference that claims of ineffectiveness of counsel be raised in a collateral proceeding under 28 U.S.C. § 2255. See, e.g., United States v. Oliva, 46 F.3d 320, 323 (3d Cir. 1995); United States v. Rieger, 942 F.2d 230, 235-36 (3d Cir. 1991); United States v. Sandini, 888 F.2d 300, 311-12. Thus, although Gaydos' claims of ineffective counsel may be meritorious, they must be raised through a §2255 petition.