United States v. Gillespie

452 F.3d 1183, 2006 U.S. App. LEXIS 16585, 2006 WL 1793282
CourtCourt of Appeals for the Tenth Circuit
DecidedJune 30, 2006
Docket05-6292
StatusPublished
Cited by37 cases

This text of 452 F.3d 1183 (United States v. Gillespie) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gillespie, 452 F.3d 1183, 2006 U.S. App. LEXIS 16585, 2006 WL 1793282 (10th Cir. 2006).

Opinion

TACHA, Chief Circuit Judge.

After Defendant-Appellant Sean Michael Gillespie admitted to throwing a Molotov cocktail into Temple B’nai Israel located in Oklahoma City, a jury convicted him of using a destructive device during a violent crime in violation of 18 U.S.C. § 924(c)(1)(A); maliciously damaging a building used in interstate commerce or used in any activity affecting interstate commerce by means of an explosive in violation of 18 U.S.C. § 844(i); and possessing an unregistered destructive device in violation of 26 U.S.C. § 5861(d). Mr. Gillespie now challenges both his conviction and sentence. We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.

I. BACKGROUND

The facts are undisputed. Temple B’nai Israel is a Jewish synagogue in Oklahoma City. Besides offering religious services and instruction, the Temple also houses a nonreligious preschool responsible for approximately sixty-five children. The preschool charges for its services and has a yearly income of over $100,000. In addition, Temple B’nai Israel maintains a gift shop that offers Judaica — such as Hanukkah items, Stars of David, and Seder plates — as well as children’s videotapes, candy, and gift wrap for sale. Ninety-five percent of the gift shop’s approximately $33,000 worth of inventory is purchased from out-of-state vendors.

On April 1, 2004, Mr. Gillespie made a Molotov cocktail from a beer bottle and a rag, ignited it, and threw it at an outside door alcove at the Temple. Mr. Gillespie videotaped himself in the act, and his actions were also recorded on Temple B’nai Israel’s video surveillance security system. Fortunately, no one was injured and damage to the Temple was minor, consisting mostly of some broken glass and charred walls.

Following an investigation, Mr. Gillespie was arrested and admitted to the crime. He was indicted on the three counts outlined above: (1) using a destructive device during a violent crime in violation of 18 U.S.C. § 924(c)(1)(A); (2) maliciously damaging a building used in interstate commerce or used in any activity affecting interstate commerce by means of an explosive in violation of 18 U.S.C. § 844(i); and *1186 (3) possessing an unregistered destructive device in violation of 26 U.S.C. § 5861(d). After the verdict but prior to sentencing, Mr. Gillespie wrote a letter to the Temple that was intercepted by correctional facility officials. The letter, which is set forth in full below, contained racially motivated epithets and claimed that Temple members falsely testified against him at his trial.

At sentencing, the District Court found that the letter provided a basis for a two-level offense enhancement for obstruction of justice under United States Sentencing Guidelines Manual (“U.S.S.G.”) § 3C1.1. Mr. Gillespie was ultimately sentenced to 360 months’ imprisonment as to the first count and 108 months’ imprisonment as to the remaining two counts. Counts Two and Three were ordered to be served concurrently with each other and consecutively to Count One, which produced an aggregate sentence of 468 months.

On appeal, Mr. Gillespie argues: (1) insufficient evidence supports the jury’s conclusion that Temple B’nai Israel is a building used in or affecting an activity in interstate commerce within the meaning of 18 U.S.C. § 844(i); (2) the District Court erroneously applied the obstruction of justice enhancement; (3) his sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment; and (4) his sentence is unreasonable.

II. DISCUSSION

A. The evidence was sufficient to support the conclusion that Temple B’nai Israel is a building used in or affecting an activity in interstate commerce.

Whether the evidence presented at trial is sufficient to support a conviction is a matter we review de novo. United States v. Smith, 413 F.3d 1253, 1265 (10th Cir.2005). Viewing the direct and circumstantial evidence in the light most favorable to the Government, we will uphold a conviction as supported by sufficient evidence so long as a reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.

18 U.S.C. § 844(i) states that:

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years....

In Jones v. United States, the Supreme Court interpreted the phrase “used in interstate [] commerce or in any activity affecting interstate [] commerce.” 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). In that case, the defendant was convicted under 18 U.S.C. § 844(i) after he set fire to his Indiana home. The Government argued that although the home was not used for any commercial purpose— such as when a private residence is rented to tenants, see Russell v. United States, 471 U.S. 858, 862, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985) — the statutory term “affecting ... commerce” in the statute signaled Congress’ intent to invoke its full authority under the Commerce Clause. 529 U.S. at 854, 120 S.Ct. 1904. Accordingly, the Government maintained that home was used in activities affecting interstate commerce in the following ways:

First, the homeowner “used” the dwelling as collateral to obtain and secure a mortgage from an Oklahoma lender; the lender, in turn, “used” the property as security for the home loan. Second, the homeowner “used” the residence to obtain a casualty insurance policy from a Wisconsin insurer. That policy, the Government points out, safeguarded the interests of the homeowner and the mortgagee. Third, the homeowner *1187 “used” the dwelling to receive natural gas from sources outside Indiana.

Id. at 855,120 S.Ct. 1904.

The Court disagreed with the Government’s expansive interpretation, holding instead that the words “used in” qualify the scope of § 844(i).

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Bluebook (online)
452 F.3d 1183, 2006 U.S. App. LEXIS 16585, 2006 WL 1793282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gillespie-ca10-2006.