USCA4 Appeal: 24-4206 Doc: 40 Filed: 08/07/2025 Pg: 1 of 14
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-4206
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAWRENCE JOSEPH FLORENTINE, a/k/a Larry,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Greenville. Donald C. Coggins, Jr., District Judge. (6:22-cr-01012-DCC-1)
Argued: December 12, 2024 Decided: August 7, 2025
Before AGEE, THACKER, and BERNER, Circuit Judges.
Reversed and remanded by published opinion. Judge Berner wrote the opinion, in which Judge Agee and Judge Thacker joined.
ARGUED: Joshua Snow Kendrick, KENDRICK & LEONARD, P.C., Greenville, South Carolina, for Appellant. Leesa Washington, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. ON BRIEF: Adair F. Burroughs, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. USCA4 Appeal: 24-4206 Doc: 40 Filed: 08/07/2025 Pg: 2 of 14
BERNER, Circuit Judge:
During an interstate road trip, Lawrence Florentine shot and killed his wife, Nicole
Zahnd Florentine. Florentine then attempted to conceal his crime by driving Nicole’s
corpse to a cemetery and setting it aflame. The Government charged Florentine with four
counts, including the crime of interstate domestic violence—a felony established by
Congress as part of the historic Violence Against Women Act of 1994.
Florentine was also charged with the crime of using fire to commit a felony. In
bringing this charge, the Government asserted that Florentine used fire to commit the
felony of interstate domestic violence. Florentine moved to dismiss the use-of-fire charge,
arguing that because he burned Nicole’s corpse only after she was dead, he was no longer
engaged in the felony of interstate domestic violence at the time he used fire.
The district court rejected Florentine’s argument. It held that interstate domestic
violence is a continuing offense, and that the offense had not been completed at the time
Florentine used fire. Consequently, the district court denied Florentine’s motion to dismiss
and sentenced him to 360 months’ imprisonment.
We conclude that the district court erred in denying Florentine’s motion to dismiss
the use-of-fire charge. The crime of interstate domestic violence ends when a victim dies.
Because conduct undertaken to conceal a victim’s death after the fact lies beyond the reach
of the interstate domestic violence statute, Florentine did not use fire to commit the felony
of interstate domestic violence.
Though we hold that the district erred in denying Florentine’s motion to dismiss, we
conclude that full resentencing is unnecessary. The district court repeatedly explained that
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it would have imposed the same 360-month sentence even if it had granted Florentine’s
motion to dismiss and thoroughly articulated why such a sentence was reasonable
regardless of whether the use-of-fire charge applied. Because resentencing would serve no
purpose under these circumstances, we remand solely for the entry of an amended
judgment.
I. Background
Lawrence Florentine murdered his wife Nicole during an interstate road trip that
began in North Carolina. After killing Nicole, Florentine attempted to conceal his crime by
dousing her body with gasoline, setting it aflame, and then burying her remains in a shallow
grave. Though the precise time and place of Nicole’s death is unknown, motel records and
cellphone data show that Florentine and Nicole travelled through North Carolina and South
Carolina between June 3, 2020, and June 9, 2020. Beginning on June 10, however, Nicole’s
family members lost all contact with her.
Surveillance footage from June 11 shows Florentine buying a gasoline can and a
shovel near a Kentucky cemetery. On June 13, a groundskeeper at that cemetery called the
police to report a suspicious gravesite. Police found a gasoline can near a makeshift grave
and uncovered the charred remains of a body that was eventually identified as Nicole’s. An
autopsy later revealed that Nicole was killed by a bullet wound to the head.
The Government charged Florentine with four felony counts: interstate domestic
violence resulting in death, in violation of 18 U.S.C. §§ 2261(a)(2), (b)(1) (Count 1); use
of a firearm during a crime of violence to cause death, in violation of 18 U.S.C. §§ 924(c),
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(j) (Count 2); obstruction of justice, in violation of 18 U.S.C. § 1519 (Count 3); and use of
fire to commit a felony—here, interstate domestic violence—in violation of 18 U.S.C.
§§ 844(a)(1), (h)(1) (Count 4). This appeal concerns only Count 4, use of fire to commit a
felony.
Florentine moved to dismiss Count 4 for failure to state an offense. See
Fed. R. Crim. P. 12(b)(3)(B). Though the precise time and place of Nicole’s death are
unknown, it is undisputed that Nicole was already dead when Florentine burned her corpse.
Florentine argued that because he did not “use[ ] fire” until after Nicole died, he did not
“use” fire to commit the crime of interstate domestic violence. According to Florentine, for
Count 4 to apply, fire must have been actively employed to commit the felony. Florentine
asserted that there was no precedent supporting a Section 844(h)(1) charge for using fire
after a crime had been completed, and that efforts to conceal a crime are not part of the
crime itself.
Florentine entered into a plea agreement before the district court could rule on his
motion to dismiss. The plea agreement’s appellate waiver contained an exception,
however, that allowed Florentine to appeal an unfavorable ruling on Count 4:
Pursuant to the terms of this plea agreement, [Florentine] expressly retains the right to appeal any adverse ruling from the Court on his motion to dismiss Count 4 of the Indictment (ECF No. 91). [Florentine’s] plea of guilty is conditioned on his right to appeal that decision.
J.A. 29.
The ensuing procedural history is unusual. Shortly after Florentine entered into the
plea agreement, the district court denied Florentine’s motion to dismiss without addressing
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the merits of his underlying statutory argument concerning Count 4. The court declined to
consider whether the term “uses fire” in Section 844(h)(1) encompassed Florentine’s
conduct because it found that “the parties disagreed as to significant facts.” J.A. 171.
Specifically, at the time of the district court’s ruling, the Government had yet to concede
that Nicole was already dead when Florentine used fire to burn her body.
Florentine filed a motion to reconsider. He argued that “[t]he date of Nicole’s killing
and the cause of that killing are clear in the Government’s indictment; she was shot on June
9, 2020. . . . Count 4 alleges fire was used on June 11, 2020.” J.A. 174. The district court
denied the motion to reconsider.
Florentine then moved to withdraw his guilty plea. He asserted that the procedural
posture of the case would likely prevent an appellate court from ever reaching the merits
of his argument concerning the scope of Section 844(h)(1), and that his right to argue this
statutory issue was a critical condition of his guilty plea.
During the hearing on Florentine’s motion to withdraw his guilty plea, the
Government reversed course and conceded that Nicole was dead before Florentine set her
body aflame. After this concession, the district court determined that it could resolve the
statutory argument presented in Florentine’s initial motion to dismiss. Because the district
court agreed to reconsider Florentine’s motion to dismiss Count 4 and to issue a ruling on
the merits, Florentine withdrew his motion to withdraw his guilty plea.
In ruling on the merits of Florentine’s motion to dismiss, the district court again
sided with the Government and denied the motion. The district court concluded that the
crime of interstate domestic violence resulting in death, 18 U.S.C. §§ 2261(a)(2), (b)(1), is
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a continuing offense that is not necessarily completed at the time of the victim’s death. The
court determined that “the offense is a continuum. . . . And with respect to this continuum,
the use of fire within one day or two days of the shooting and killing of the defendant is
still a use, in connection with, sufficient to support [Count 4].” J.A. 249–50.
The court sentenced Florentine to 360 months’ imprisonment: 240 months for
Counts 1, 2 and 3, to be served concurrently, and 120 months for Count 4, to be served
consecutively to all other counts. The 240-month sentence for Counts 1 through 3 was
within the Sentencing Guidelines advisory range. The 120-month sentence for Count 4 was
mandatory.
At the sentencing hearing, the district court stated expressly that it would have
imposed the same sentence even if it had dismissed Count 4. The district court recognized
that doing so would have required an upward variance from the Guidelines range of 210 to
263 months’ imprisonment for Counts 1, 2, and 3. The district court explained: “To the
extent that such a sentence . . . would require an upward variance, the government’s motion
[for an upward variance] is granted.” J.A. 321–22.
In this appeal, Florentine challenges the district court’s denial of his motion to
dismiss Count 4, the Section 844(h)(1) charge. He argues that if we agree with his
interpretation of the relevant statutes, we must vacate his sentence and remand for
resentencing. Though the district court stated that it would have imposed the same sentence
even if it had dismissed Count 4, Florentine contends that the court failed to provide an
adequate explanation for the large upward variance that would have been necessary to
sentence him to 360 months’ imprisonment solely on the basis of Counts 1, 2, and 3.
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II. Standard of Review
Florentine challenges the district court’s interpretation of Section 844(h)(1) and
Section 2261(a)(2). We review matters of statutory interpretation de novo. United States v.
George, 946 F.3d 643, 645 (4th Cir. 2020).
III. Analysis
The statutory issue in this appeal turns on a single question: does the felony offense
of interstate domestic violence, 18 U.S.C. § 2261(a)(2), end at the moment the victim dies?
If we hold that it does, we must conclude that Florentine did not violate Section 844(h)(1),
which applies to one who “uses fire . . . to commit any felony.” 18 U.S.C. § 844(h)(1). The
predicate felony for Count 4 is interstate domestic violence, as encompassed by Section
2261(a)(2). The Government concedes that Florentine did not “use fire” until after Nicole
died. Florentine concedes that he did “use fire” to conceal her death. The sole statutory
issue is whether the concealment of a victim’s death may be properly considered part of
the crime of interstate domestic violence under Section 2261(a)(2).
a. Section 844(h)(1) is Inapplicable to Florentine’s Conduct
Section 844(h)(1) requires that fire be used in the commission of a felony. The fire
need not have caused the physical harm penalized by that felony, however. Courts have
adopted expansive readings of the statutory phrase “uses fire” in Section 844(h)(1),
affirming convictions where fire was used as a diversionary tactic during the underlying
felony offense, or to set the offense in motion. See, e.g., United States v. Desposito,
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704 F.3d 221, 227–29 (2d Cir. 2013) (holding that the use of fire to divert police attention
from the commission of a bank robbery qualified as a Section 844(h)(1) offense); United
States v. McAuliffe, 490 F.3d 526, 534–35 (6th Cir. 2007) (collecting cases).
Regardless of the expansive scope of the phrase “uses fire,” the critical statutory
issue in this appeal is determining when the commission of the predicate felony, interstate
domestic violence (as defined by 18 U.S.C. § 2261), came to an end. The crime of interstate
domestic violence does not necessarily end after a perpetrator has ceased physical violence
against his victim. This court has established that Section 2261(a)(2) encompasses certain
conduct carried out even days after physical abuse has ended. In United States v. Helem,
186 F.3d 449 (4th Cir. 1999), this court analyzed an earlier version of Section 2261(a)(2)
that made it unlawful to cause a spouse or intimate partner to cross a state line “by force,
coercion, duress, or fraud and, in the course or as a result of that conduct,” intentionally
commit a crime of violence and thereby cause bodily injury. 18 U.S.C. § 2261(a)(2) (1997)
(emphasis added). The defendant in Helem violently beat his wife at their apartment in
Maryland. Id. at 451–52. He then told his wife that they needed to leave town so no one
would see her condition, and he asked her if she wanted to drive south. Id. at 452. Helem’s
wife responded “I don’t care” out of fear that he would resume beating her if she responded
differently. Id. Although Helem did not commit any acts of physical violence during their
travel, which ended with his arrest in North Carolina, a jury convicted Helem of interstate
domestic violence, in violation of 18 U.S.C. § 2261(a)(2). Id.
On appeal before this court, Helem argued that Section 2261(a)(2) did not reach
intrastate acts of violence that end before interstate travel begins. This court rejected
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Helem’s theory of Section 2261(a)(2) and instead adopted an expansive reading of the
statutory phrase “in the course of” interstate travel. 186 F.3d at 454–55 (“[P]hysical
violence that occurs before interstate travel begins can satisfy the ‘in the course or as a
result of that conduct’ requirement of 18 U.S.C. § 2261(a)(2).”) Helem thus made clear that
the offense of interstate domestic violence may continue after the acts of physical violence
end.
After this court decided Helem, a subsequent amendment confirmed this court’s
reading of Section 2261(a)(2). Congress amended Section 2261(a)(2) to apply to anyone
who: 1) “causes a spouse, intimate partner, or dating partner to travel in interstate
commerce . . . by force, coercion, duress, or fraud” and 2) “commits or attempts to commit
a crime of violence against that spouse” either “in the course of, as a result of, or to
facilitate such . . . travel.” Pub. L. 106-386 § 1107(a)(2), 114 Stat. 1464, 1497 (2000)
(emphasis added).
Though Helem clarified that Section 2261(a)(2) can encompass certain interstate
travel occurring after an abuser ceases physical violence, it did not suggest that the statute
applies to conduct that occurs after a victim has been killed. This court’s precedent provides
no indication that a Section 2261(a)(2) offense may continue after a victim dies. Such an
interpretation is also unsupported by the statutory text.
The Government’s position that the crime of interstate domestic violence can
continue beyond the victim’s death would require us to accept one of two potential readings
of the statute. First, if we determined that “caus[ing] a spouse . . . to travel in interstate
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commerce” included transporting the corpse of a deceased former spouse, Count 4 would
apply to Florentine’s conduct.
This reading would be contrary to the statute’s plain meaning. The Government
asserts that “by its nature, the domestic violence crime is triggered by the involuntary
interstate transportation of the victim; it logically cannot be complete as long as that
conduct continues.” Gov’t Response Br. at 17. The statute, however, does not cover
transportation writ large. It specifically prohibits “caus[ing] a spouse [or partner] . . . to
travel in interstate commerce.” 18 U.S.C. § 2261(a)(2). Once a person has died, they are
no longer anyone’s “spouse” or “partner.” See Julmice v. Garland, 29 F.4th 206, 208 (4th
Cir. 2022) (explaining that the title “spouse,” in the context of a statue, is “normally
understood to terminate on death”); Ablamis v. Roper, 937 F.2d 1450, 1456 (9th Cir. 1991)
(“Ms. Albamis’s death divests her of the title of ‘spouse or other dependent.’”). The
interstate transport of a corpse, therefore, necessarily falls outside the scope of Section
2261(a)(2).
Alternatively, Count 4 would apply to Florentine if we concluded that the
concealment of a Section 2261(a)(2) crime is part of the offense itself. According to the
Government, Florentine’s burning of Nicole’s corpse was integral to his attempts to
conceal her murder and to evade detection. The Government argues that the offense of
interstate domestic violence, as defined by Section 2261(a)(2), encompasses acts of
concealment done to evade law enforcement detection and avoid criminal responsibility
for domestic violence. Id. at 24.
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Even a continuing offense reaches an endpoint, however. Concealment generally
falls beyond that endpoint, and Section 2261(a)(2) is no exception. The prototypical
continuing offense is conspiracy. Toussie v. United States, 397 U.S. 112, 122 (1970). Yet
an implicit agreement to conceal a conspiracy is not part of a conspiracy offense. See
Grunewald v. United States, 353 U.S. 391 (1957). In Grunewald, the Supreme Court noted
that “every conspiracy will inevitably be followed by actions taken to cover the
conspirators’ traces.” Id. at 402. The Court drew a “vital distinction,” however, “between
acts of concealment done in furtherance of the main criminal objectives of the conspiracy,
and acts of concealment done after these central objectives have been attained, for the
purpose only of covering up after the crime.” Id. at 405.
The prosecution in Grunewald sought to analogize the defendants’ efforts to conceal
their conspiracy to a hypothetical kidnapper’s hiding while waiting for ransom. Id. It
argued that each was a form of concealment integral to the offense itself. Id. The Court
rejected that analogy, explaining that kidnapping was among the narrow category of
offenses where “the successful accomplishment of the crime necessitates concealment.”
Id. Unless an offense falls into that limited category, “acts of covering up can by themselves
indicate nothing more than that the conspirators do not wish to be apprehended.” Id. at
405–06.
Here, the Government similarly attempts to analogize the charged offense to
kidnapping. It argues that the offense of kidnapping resulting in death is not necessarily
complete once the victim is dead, and that interstate domestic violence, like kidnapping, is
a continuing offense. For support, the Government cites the Second Circuit’s decision in
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United States v. Zayac, 765 F.3d 112 (2d Cir. 2014). Though the court in Zayac declined
to decide precisely when the kidnapping resulting in death ended, it determined that the
earliest the offense could have been completed was the moment when the defendant
abandoned the body. Id. at 122.
Yet comparing the interstate domestic violence statute to the federal kidnapping
statute undermines the Government’s argument rather than bolstering it. The federal
kidnapping statute, 18 U.S.C. § 1201(a)(1), provides that kidnapping occurs “when the
person is . . . transported in interstate or foreign commerce, regardless of whether the
person was alive when transported across a State boundary.” Section 2261(a)(2) contains
no such language. See 18 U.S.C. § 2261(a)(2). The lack of a similar clause in the interstate
domestic violence statute is evidence that Congress did not intend for the offense to extend
past the death of a victim.
Apart from its misplaced reliance on Zayac and the federal kidnapping statute, the
Government offers no support for its theory that Section 2261(a)(2) is an exception to the
rule that acts of concealment are not part of the crime and “indicate nothing more than that
the [offenders] do not wish to be apprehended.” Grunewald, 353 U.S. at 406. The
successful accomplishment of interstate domestic violence resulting in death does not
“necessitate[] concealment.” Id. at 405. Accordingly, Florentine’s attempt to conceal his
crime was not part of the offense itself. The crime of interstate domestic violence, as
defined by 18 U.S.C. § 2261(a)(2), ends when the victim dies. Because conduct undertaken
to conceal the victim’s death is beyond the reach of the statute, the district court erred in
denying Florentine’s motion to dismiss Count 4.
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b. Resentencing is Unnecessary
Though we hold that the district court erred in denying Florentine’s motion to
dismiss Count 4, we agree with the Government that resentencing is not necessary. The
district court made it abundantly clear that it would have imposed the same total sentence
even if it had erred in denying Florentine’s motion to dismiss Count 4.
At sentencing, the district court explained thoroughly—over eight pages in the
hearing transcript—why a 360-month sentence was appropriate regardless of the
applicability of Section 844(h)(1). The district court summarized its reasoning:
I will also state that even had I ruled in the defense[’s] favor with respect to the legal application of Count 4 and its 120-month consecutive sentence, even if that count had been dismissed and I had simply treated that as relevant conduct, I would have imposed this same sentence as an alternate variance sentence in light of all of the facts and circumstances in this case . . . . To the extent that such a sentence in the absence of that 120 months consecutive [sentence] would require an upward variance, the government’s motion is granted for the reasons the Court has previously stated.
J.A. 321.
As this court explained in United States v. Savillon-Matute, “it would make no sense
to set aside [a] reasonable sentence and send the case back to the district court [when] it
has already told [this court] that it would impose exactly the same sentence, a sentence
[this court] would be compelled to affirm.” 636 F.3d 119, 123 (4th Cir. 2011). Here, we
would be similarly compelled to affirm a sentence of 360 months’ imprisonment on Counts
1, 2, and 3 because the district court provided a fulsome explanation of each factor that it
was required to consider in sentencing, as outlined by 18 U.S.C. § 3553(a). Id. Though a
360-month sentence for those three counts would represent a substantial upward variance
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from the Guidelines range of 210 to 262 months, appellate courts may not “apply a
presumption of unreasonableness” to above-Guidelines sentences. Gall v. United States,
552 U.S. 38, 51 (2007). A substantial upward variance from the Guidelines range must,
however, be supported by a thorough explanation of the 3553(a) sentencing factors. See
United States v. Howard, 773 F.3d 519, 528–30 (4th Cir. 2014).
The district court carefully considered the facts of this case in analyzing each of the
3553(a) factors, ultimately explaining: “I think based upon those aggravating facts under
the 3553(a) factors an upward variance is supported.” J.A. 316. To be clear, a district court
cannot insulate a sentence from vacatur through a general statement that it would have
imposed same sentence regardless of any error. Here, however, the district court’s sentence
was reasonable, despite the court’s error, in light of its thorough analysis of the 3553(a)
factors.
IV. Conclusion
Though we conclude that the district court erred in ruling that Florentine used fire
to commit the crime of interstate domestic violence resulting in death, we remand for the
limited purpose of entering an amended judgment.
REVERSED AND REMANDED