United States v. Johnson

Revised November 3, 1999

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________

No. 98-50396
________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT EARL JOHNSON,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the
Western District of Texas
_________________________________________________________________
November 1, 1999
Before GARWOOD, BARKSDALE, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Robert Earl Johnson (“Johnson”) appeals from his criminal

conviction for arson, raising an as-applied constitutional challenge

to 18 U.S.C. § 844(i). Relying on United States v. Lopez, 514 U.S.

549 (1995), he argues that his burning of a Methodist church did not

substantially affect interstate commerce and that, as a consequence,

there was an insufficient jurisdictional basis for his arson

prosecution. Because the district court committed plain error in

determining that a sufficient factual basis existed to support

Johnson’s plea, we vacate his guilty plea and remand for further

proceedings.
 I

Johnson was indicted for the December 1996 arson of the Hopewell

United Methodist Church (“Hopewell”) in violation of 18 U.S.C. §

844(i). Following an unsuccessful motion to dismiss, Johnson pleaded

guilty. The district court entered judgment and sentenced Johnson to

a 115-month term of imprisonment, three years supervised release, and

$89,227 restitution.

To support Johnson’s plea, the Government offered a written

Factual Basis, detailing Johnson’s offense. This Factual Basis

contained the following information.1 In December 1996, an arson fire

destroyed the Hopewell United Methodist Church and its contents.

Johnson, who lived next door to the church, admitted that he had set

the fire at the church in an effort to cover up past burglaries of

Hopewell. Church Mutual Insurance Company, located in Merrill,

Wisconsin, insured the church building and its contents. As a result

of the fire, Church Mutual Insurance Company paid a claim of over

$89,000 to Hopewell. Before the December 1996 blaze, Hopewell was a

member of the Texas Annual Conference of the United Methodist Church

(“Texas Annual Conference”). As a member church, Hopewell

contributed approximately sixteen percent of the money that it

collected from its congregation to the Texas Annual Conference. The

Texas Annual Conference forwards the majority of its contributions to

the United Methodist Church’s General Counsel on Finance and

1
Johnson made no material objection to any of the facts averred therein.

2
Administration in Evanston, Illinois. The General Counsel then

distributes these funds to various ministries throughout the world,

to the denomination’s seminaries, to the Black College Fund, and

other efforts across the United States.

II

A

As a general rule, a valid guilty plea waives all

non-jurisdictional defects in the proceedings against a defendant.

See United States v. Andrade, 83 F.3d 729, 731 (5th Cir. 1996) (per

curiam). A defendant, however, may preserve a claim for appellate

review by entering a conditional plea under Federal Rule of Criminal

Procedure 11(a)(2). See United States v. Bell, 966 F.2d 914, 915

(5th Cir. 1992). “Failure to designate a particular pretrial issue

in the written plea agreement generally forecloses appellate review

of that claim.” Id. at 916.

To establish a violation under the arson statute, 18 U.S.C.

§ 844(i), the government must demonstrate that a person maliciously

damaged or destroyed by means of fire a “building, vehicle, or other

personal property used in interstate . . . commerce or in any

activity affecting interstate . . . commerce.” 18 U.S.C. § 844(i).

Section 844(i)’s interstate commerce requirement “while

jurisdictional in nature, is merely an element of the offense, not a

prerequisite to subject matter jurisdiction.” United States v. Rea,

169 F.3d 111, 113 (8th Cir. 1999); cf. United States v. Robinson, 119

3
F.3d 1205, 1212 n.4 (5th Cir. 1997) (explaining that the Hobbs Act’s

interstate commerce element is not jurisdictional in the sense that

“a failure of proof would divest the federal courts of adjudicatory

power over the case”). Accordingly, we find that Johnson, in

entering an unconditional plea of guilty before the district court,

waived his as-applied constitutional challenge to § 844(i). As a

consequence, Johnson’s appeal can be maintained only if construed as

a challenge to the sufficiency of the factual basis for the

interstate commerce element of the arson crime to which he pleaded

guilty. See United States v. Dayton, 604 F.2d 931, 936-38 (5th Cir.

1979) (en banc) (holding that, notwithstanding a guilty plea, a

defendant may appeal a district court’s finding of a factual basis

for the plea on the ground that the facts set forth in the record do

not constitute a crime).

B

A trial court cannot enter judgment on a plea of guilty unless

it is satisfied that there is a factual basis for the plea. See Fed.

R. Crim. P. 11(f). “The purpose underlying this rule is to protect a

defendant who may plead with an understanding of the nature of the

charge, but ‘without realizing that his conduct does not actually

fall within the definition of the crime charged.’" United States v.

Oberski, 734 F.2d 1030, 1031 (5th Cir. 1984) (quoting United States

v. Johnson, 546 F.2d 1225, 1226-27 (5th Cir. 1977)). This factual

basis must appear in the record and must be sufficiently specific to

4
allow the court to determine that the defendant's conduct was “within

the ambit of that defined as criminal.” Id.

We generally regard a district court’s acceptance of a guilty

plea as a factual finding to be reviewed under the clearly erroneous

standard. See United States v. Rivas, 85 F.3d 193, 194 (5th Cir.

1996). Johnson, however, does not contest the findings of fact or

other Rule 11 procedures followed by the district court. Instead, he

presents a “plain, straightforward issue of law: is the undisputed

factual basis sufficient as a matter of law to sustain his plea.”

United States v. Ulloa, 94 F.3d 949, 955 (5th Cir. 1996). Because

Johnson did not present this claim to the district court and because

his appeal raises an issue of law for which “we need [not] be

satisfied that findings of fact regarding the factual basis are not

clearly erroneous,” we review for plain error. See id. Under the

plain error standard, an appellant must show: (1) that there was

error; (2) that it was clear and obvious; and (3) that it

affected the appellant’s substantial rights. See United States

v. Olano, 507 U.S. 725, 730-36 (1993). Even when these criteria

are satisfied, we exercise our discretion to correct only those

errors that “seriously affect[] the fairness, integrity or public

reputation of judicial proceedings.” Id. at 732.

C

Johnson argues that the Hopewell United Methodist Church was not

a building used in any activity substantially affecting interstate

5
commerce as required by § 844(i). In doing so, he attempts to

engraft into individual § 844(i) prosecutions the Lopez requirement

that an intrastate activity must substantially affect interstate

commerce to be subject to congressional regulation under the Commerce

Clause. See Lopez, 514 U.S. 549, 559.

Johnson miscontrues the proper standard to be applied in

assessing the sufficiency of the interstate commerce nexus.

Johnson’s individual act of arson need not have a substantial impact

on interstate commerce, so long as arsons of property used in

interstate commerce or in activities affecting interstate commerce,

in the aggregate, substantially impact interstate commerce. See

Lopez, 514 U.S. at 561 (“[O]ur cases uphold[] regulations of

activities that arise out of or are connected with a commercial

transaction, which viewed in the aggregate, substantially affect[]

interstate commerce.”); Maryland v. Wirtz, 392 U.S. 183, 196 n.27

(1968), overruled on unrelated grounds by, National League of Cities

v. Usery, 426 U.S. 833, 854 (1976), overruled by, Garcia v. San

Antonio Metro. Transit Auth., 469 U.S. 528, 547 (1985) (“[W]here a

general regulatory statute bears a substantial relation to commerce,

the de minimis character of individual instances arising under that

statute is of no consequence.”). In United States v. Robinson, we

considered the constitutionality of the Hobbs Act, 18 U.S.C.

§ 1951(a), in the wake of the Supreme Court’s Lopez decision. We

found that the Hobbs Act’s enactment was a permissible exercise of

6
the congressional power to regulate commerce among the states. See

119 F.3d at 1208. In reaching this conclusion, we explicitly stated

that, “We think Lopez makes clear that legislation concerning an

intrastate activity will be upheld if Congress could rationally have

concluded that the activity, in isolation or in the aggregate,

substantially affects interstate commerce.” Id. at 1211-12. Because

the substantiality requirement “applies to the class of cases

prosecuted in the aggregate[,] in any particular case, proof of a

slight effect on interstate commerce suffices.” Id. at 1212.

Since Robinson, we have not specifically addressed the question

of whether proof of a slight effect on interstate commerce suffices

in the context of § 844(i) prosecutions.2 Though in agreement with

Judge Garwood’s point, in his special concurrence, that Robinson

is not binding on this court, the aggregation principle is

generally applicable, and the Hobbs Act and § 844(i) are strikingly

similar;3 therefore, the reasoning underlying our holding in Robinson

applies with equal force to the instant action.

2
The pre-Robinson case of United States v. Corona, 108 F.3d 565 (5th Cir.
1997), noted that “[t]he consequences of arson are typically local, and we have
traditionally left it to the states to determine the appropriate penalty.” Id.
at 570. Although it suggested that Lopez might call into question earlier cases
interpreting § 844(i), Corona did not resolve the question of whether a slight effect
on interstate commerce--substantial only in the aggregate--suffices for purposes of the
interstate commerce requirement. See id.
However, we also observe that Judge Higginbotham’s dissent on behalf of
half of the equally divided en banc court in United States v. Hickman, 179 F.3d
230, 242 (5th Cir. 1999) argues in dicta that the government could use
aggregation–albeit under the dissent’s more narrow theory of aggregation–to
satisfy the jurisdictional element of a nexus with interstate commerce in typical
prosecutions under § 844(i).
3
Section 844(i), like the Hobbs Act, contains an explicit interstate
commerce requirement.

7
 Judge Garwood disagrees with the conclusion that aggregation is

here available; in his view, aggregation cannot apply because §

844(i) neither regulates an interstate market or economic activity

nor are the individual instances of arson related to each other or

any specific regulatory scheme. Aggregation is not so narrowly

constrained. Just as the greater power includes the lesser, see 44

Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 511 (1996) (“[W]e do

not dispute the proposition that greater powers include lesser

ones[.]”); Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto

Rico, 478 U.S. 328, 345 (1986) (“In our view, the greater power to

completely ban casino gambling necessarily includes the lesser power

to ban advertising of casino gambling[.]”), the lesser power here

necessarily implies the greater. Judge Garwood concedes that

Congress has the power to regulate arsons in a particular economic

market, for instance, arsons of abortion clinics; that power can

derive only from Congress’ more extensive constitutional grant of the

power to regulate interstate commerce generally.

“Congress has the power to protect interstate commerce from

intolerable or even undesirable burdens.” Quill Corp. v. North

Dakota, 504 U.S. 298, 318 (1992) (quoting Commonwealth Edison Co. v.

Montana, 453 U.S. 609, 637 (1981) (White, J., concurring); see also

United States v. Green, 350 U.S. 415, 420 (1956) (upholding the Hobbs

Act because “the legislation is directed at the protection of

interstate commerce against injury[.]”); Prudential Ins. Co. v.

8
Benjamin, 328 U.S. 408, 434 (1946) (“[The Commerce Clause’s] scope

enables Congress not only to promote but also to prohibit interstate

commerce[.]”). Thus the power of Congress to protect or promote

individual markets derives from its power likewise to foster and

encourage interstate commerce generally. Section 844(i) is a

reflection of Congress’ clear intent to protect and promote

interstate commerce in general.

This does not mean, however, that aggregation obliterates, or

even circumscribes materially, our federal system. In order to

aggregate, the government must show that the arson has “an explicit

connection with or effect on interstate commerce.” Lopez, 514 U.S.

at 562. A “speculative” or “attenuated” connection, however, will

not suffice to demonstrate the nexus with interstate commerce.

United States v. Collins, 40 F.3d 95, 99, 101 (5th Cir. 1994); see

also United States v. Corona, 108 F.3d 565, 570 (5th Cir. 1997)

(rejecting “speculative” effects on interstate commerce as

insufficient).

Here, the Government identifies four facts that it contends

support a determination that the Hopewell Church was a building

used in or affecting interstate commerce or used in any activity

affecting interstate commerce: (1) Hopewell’s membership in the

Texas Annual Conference, to which Hopewell annually contributed funds

raised from its members and other sources; (2) the Conference’s

forwarding of the majority of those funds to the United Methodist

9
Church’s national office in Illinois; (3) the national organization’s

distribution of those funds to various missionary activities,

seminaries, and institutions of higher education; and (4) an out-of-

state insurer’s payment of a claim for more than $89,000 to Hopewell.4

We find that these facts do not provide a sufficiently specific

factual basis from which the district court could have determined

that Johnson’s arson was within the scope of 18 U.S.C. § 844(i). By

accepting Johnson’s plea without an adequate factual basis, the

district court committed plain error.

The Government failed to present to the district court any

information clarifying the nature of the relationship between

Hopewell and the Texas Annual Conference or between Hopewell and

the national United Methodist Church. In particular, the record

contains no information from which we can discern that Hopewell was

an integral part of a national body with activities explicitly

connected to or affecting interstate commerce. Merely being a dues-

paying member of an organization that funds a national body does not

satisfy § 844(i)’s interstate commerce element. Thus, Hopewell’s

membership in the Texas Annual Conference does not establish an

explicit connection or effect on interstate commerce.

The out-of-state insurer’s payment of the $89,000 claim also

4
In its appellate brief, the Government references several additional facts
tending to show an interstate commerce nexus. That information, however, was not part
of the factual basis presented by the Government to the district court at the time of
Johnson’s plea and therefore could not properly be relied upon by the district court
in determining whether or not to accept Johnson’s guilty plea.

10
does not establish the interstate commerce element. Critical to our

determination in Robinson that “robberies affecting interstate

commerce are precisely the sort of acts ‘that might, through

repetition elsewhere, substantially affect . . . interstate

commerce’” was our recognition that the charged robberies in that

case had an explicit connection with and effect upon interstate

commerce. Robinson, 119 F.3d at 1208 (quoting Lopez, 514 U.S. at

567). We explained that the stores targeted by Robinson and his gang

were robbed of thousands of dollars and “that the robberies impaired

[the stores’] ability to cash out-of-state checks and to restock

goods shipped from other states.” Id. at 1215. Unlike the concrete

effects of the robberies in Robinson, an out-of-state company’s

payment of an insurance claim does not amount to an explicit

connection or effect on interstate commerce to which the aggregation

principle would apply. At most, the impact on interstate commerce of

Hopewell’s filing of a claim and its payment by an out-of-state

insurer is speculative. To find otherwise would be to federalize the

arson of any building, vehicle, or other personal property insured by

an out-of-state company. Accordingly, we hold that the factual basis

presented to the district court does not support a finding that

Johnson’s December 1996 arson of the Hopewell United Methodist Church

resulted in the damage or destruction of a building used in

interstate commerce or in any activity affecting interstate commerce.

11
 III

For the aforementioned reasons, we conclude that the

district court committed plain error in accepting Johnson’s plea

of guilty. Because the factual basis presented to the district

court fails to establish the interstate commerce element of 18

U.S.C. § 844(i), we exercise our discretion under Olano, 507 U.S.

at 732, to vacate Johnson’s guilty plea and remand for further

proceedings consistent with this opinion.

12
GARWOOD, Circuit Judge, with whom BARKSDALE, Circuit Judge, joins,

specially concurring:

Application of 18 U.S.C. § 844(i) continues to trouble this

Court. See, e.g., United States v. Corona, 108 F.3d 565, 568-71 (5th

Cir. 1997); United States v. Nguyen, 117 F.3d 796, 798 and dissenting

opinion at 798-800 (5th Cir.), cert. denied 118 S.Ct. 455 (1997).

While I concur in the result here, and agree with Judge

Benavides’ factual analysis reflecting that it was plain error for

the district court to conclude that the factual basis for the plea

reflected a constitutionally adequate relation to interstate

commerce, I disagree with the aggregation analysis in Judge

Benavides’ opinion.

In United States v. Lopez, 115 S.Ct. 1624 (1995), the Supreme

Court set out “three broad categories of activity that Congress may

regulate under its commerce power,” as follows:

“First, Congress may regulate the use of the channels of
interstate commerce . . . . Second, Congress is empowered
to regulate and protect the instrumentalities of
interstate commerce, or persons or things in interstate
commerce, even though the threat may come only from
intrastate activities. . . . [Third] Finally, Congress’
commerce authority includes the power to regulate those
activities having a substantial relation to interstate
commerce, Jones & Lauglin Steel, 301 U.S. at 37, 57 S.Ct.
at 624, i.e., those activities that substantially affect
interstate commerce. Wirtz, supra at 196, n.27, 88 S.Ct.
at 2024, n.27.” Lopez at 1629-30.

It is evident that we are here dealing with the third Lopez

category, the only category as to which the “substantially affect

interstate commerce” requirement and the concept of aggregation are
relevant.5

I agree with the position taken by Judge Higginbotham, joined in

by seven other judges of this Court, in United States v. Hickman, 179

F.3d 230 (5th Cir. 1999) (en banc; evenly divided court), stating

that for purposes of Lopez’s third category:

“. . . substantial effects upon interstate commerce may
not be achieved by aggregating diverse, separate
individual instances of intrastate activity where there is
no rational basis for finding sufficient connections among
them. Of course, Congress may protect, enhance, or
restrict some particular interstate economic market, such
as those in wheat, credit, minority travel, abortion
service, illegal drugs, and the like, and Congress may
regulate intrastate activity as part of a broader scheme.”
Id. at 231.

In Lopez this Court refused to countenance the government’s

attempt to salvage the Gun Free School Zones Act (18 U.S.C. § 822(q))

by an aggregation argument, viz:

“The government seeks to rely on the rule that ‘[w]here
the class of activities is regulated and that class is
within the reach of the federal power, the courts have no
power “to excise as trivial, individual instances” of the
class.’ This theory has generally been applied to the
regulation of a class of activities the individual

5
Appellant was convicted of violating 18 U.S.C. § 844(i) which
proscribes arson of “any building, vehicle, or other real or personal
property used in interstate or foreign commerce or in any activity
affecting interstate or foreign commerce.” It is evident that the
church building that appellant burned was not “used in interstate or
foreign commerce,” and on appeal the Government merely argues that
“Defendant’s arson of the Hopewell United Methodist Church was a crime
under Section 844(i) because the Church building was used in an activity
affecting interstate commerce” and that the burned church was “a
building used in an activity affecting commerce.” Judge Benavides’
opinion does not suggest that either the first or second Lopez
categories are involved or that the church building was “used in
interstate or foreign commerce.”

14
 instances of which have an interactive effect, usually
because of market or competitive forces, on each other and
on interstate commerce. A given local transaction in
credit, or use of wheat, because of national market
forces, has an effect on the cost of credit or price of
wheat nationwide. Some such limiting principles must
apply to the ‘class of activities’ rule, else the reach of
the Commerce Clause would be unlimited, for virtually all
legislation is ‘class based’ in some sense of the term.”
Lopez, 2 F.3d at 1367 (quoting Perez, 402 U.S. at 153-54,
91 S.Ct. at 1361; Wirtz, 392 U.S. at 192-94, 88 S.Ct. at
2022).

The Supreme Court in Lopez likewise rejected the government’s

aggregation argument, stating, in language fully applicable to

section 844(i), as follows:

“Section 922(q) is not an essential part of a larger
regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity
were regulated. It cannot, therefore, 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., 115 S.Ct. at 1631 (emphasis
added).

In United States v. Bird, 124 F.3d 667 (5th Cir. 1997), this

Court quoted with approval the above set out passage from our Lopez

opinion (124 F.3d at 676-77) and went on to say:

“Unless there is something that relevantly ties the
separate incidents and their effects on interstate
commerce together, aside from the desire to justify
congressional regulation, the government’s ‘class of
activities’ interpretation would transform Justice
Breyer’s Lopez dissent into the constitutional rule.”
Bird at 677.

Arsons under section 844(i) are simply not a meaningful “class

of activities” suitable for aggregation. Section 844(i) is not

limited to arsons affecting any particular class of business or any

15
particular national market but extends, without differentiation, to

all arsons of personal as well as business property, so long as the

property is “used . . . in any activity affecting interstate

commerce,” which would include, for example, the cowboy’s boots. To

allow such aggregation would necessarily mean that section 844(i) is

not any kind of a regulatory scheme of any interstate or national

market. The act’s focus would be on the crime, arson—not on any

effect on interstate commerce. Indeed, although section 844(i)

requires that the fire be one which “damages” “property used . . . in

any activity affecting interstate or foreign commerce,” its terms

contain no requirement that the fire or the damage to the property

have any effect on interstate commerce (or on the activity affecting

interstate commerce in which the property is used). Moreover, there

is no requirement in section 844(i) that the “activity” be a

commercial or economic one.6

Application of the aggregation principle to this case, which

involves no effort to regulate any interstate market nor any related

regulatory scheme, in effect gives Congress the Commerce Clause power

to regulate all arsons, a result not supported by the language of the

Constitution or the intent of its framers. Judge Benavides’ approach

6
Cf. Lopez at 1633: “We do not doubt that Congress has authority
under the Commerce Clause to regulate numerous commercial activities
that substantially affect interstate commerce and also affect the
educational process” (emphasis added). Surely the nation’s churches are
no more within the reach of the Commerce Clause than its educational
processes.

16
of essentially unlimited aggregation would allow Congress – wholly

apart from any scheme of regulation of any “commerce among the

several states,” – to enact a preemptive national criminal and civil

code applicable to all conduct and activity of a purely local nature.

This is so because every individual action no matter how local will

ultimately have some at least minute interstate affect,7 and it will

always and inevitably be the case that the aggregration of all such

conduct would substantially affect interstate commerce. If Congress

has that power then it doubtless also has the “lesser” power to

regulate all arsons; but to conclude that Congress has such power is

necessarily to conclude that the commerce power is essentially

unlimited, contrary to Lopez as well as to the Constitution’s basic

federal scheme reaffirmed in the Tenth Amendment.

Judge Benavides would slightly soften this blow by holding that

instances of local activity may not be aggregated for purposes of the

substantial affect requirement of Lopez’s third category unless their

individual affect on interstate commerce is more than “speculative”

or “attenuated,” notwithstanding that if aggregated their total

interstate affect would be substantial. No explanation is given of

why aggregation is improper in such instances – notwithstanding a

substantial affect if aggregated – but nevertheless is proper in

7
See, e.g., Lopez, 115 S.Ct. at 1633, quoting approvingly from
Justice Cardozo’s concurring opinion in A.L.A. Schecter Poultry Corp.
v. U.S., 55 S.Ct. 837, 853 (1935), “‘A society such as our “is an
elastic medium which transmits all tremors throughout its territory; the
only question is of their size”’.”

17
instances involving unrelated local noncommercial activities

immaterial to any interstate regulatory scheme whose aggregated

interstate affect may even be less than the aggregated interstate

affect of the instances Judge Benavides would refuse to aggregate.

And, if Judge Benavides’ approach is more than purely cosmetic and

rhetorical, it is in substantial tension with Lopez’s recognition of

the propriety of aggregation where the challenged rule forms “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. In such a situation,

individual activities each of which may be “trivial by itself” or “de

minimis,” may be aggregated. See Lopez at 1628, 1629.8 It is

difficult to see a meaningful difference between affects which are

“trivial” or “de minimis” and those which are “speculative” or

“attentuated;” and Judge Benavides’ opinion affords no assistance in

this respect. Finally, Judge Benavides’ open-ended aggregation

theory, bounded by no principled limits, in substance does away with

the substantially affect requirement of Lopez’s third category – for

if essentially anything and everything can be aggregated then

8
Lopez at 1628 notes that in Wickard v. Filburn, 63 S.Ct. 82 (1941)
“Filburn’s own contribution to the demand for wheat may have been
trivial by itself,” and, at 1631, quotes approvingly from the statement
in Maryland v. Wirtz,88 S.Ct. 2017, 2024 n.27 (1968), referring to the
decision there and in Wickard, that “[t]he Court has said only that
where a general regulatory statute bears a substantial relation to
commerce, the de minimis character of individual instances arising under
that statute is of no consequence” (emphasis supplied by Lopez).

18
substantiality will always be satisfied. And, it likewise renders

wholly meaningless Lopez’s special treatment of enactments which form

“an essential part of a larger regulation of economic activity, in

which the regulatory scheme would be undercut unless the intrastate

activities were regulated” as to which the thus regulated intrastate

activities are to be “viewed in the aggregate” for purposes of

satisfying the third category’s substantiality requirement. Id. at

1631.

Section 844(i) is not a regulation of any interstate market or

economic activity and the individual instances of arson which it

addresses are wholly unrelated to each other or to any particular

regulatory scheme or purpose other than the prevention of arson.

Aggregation is hence improper.9

I recognize that language in this Court’s opinion in United

States v. Robinson, 119 F.3d 1205 (1997), supports the position taken

9
And, as we observed in Bird, 124 F.3d at 682, n.15:

“Certainly when Congress is regulating inter state commercial
activity, its reason for doing so is immaterial. But where,
as here, Congress is regulating purely intra state,
noncommercial activity because of its substantial affect on
interstate commerce, the purpose must in fact be to regulate
interstate commerce. ‘Let the end be legitimate, let it be
within the scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end, which are
not prohibited, but consist with the letter and spirit of the
constitution, are constitutional.’ M’Culloch v. Maryland,
17 U.S. (4 Wheat.) 316, 421, 4 L.Ed. 579 (1819) (emphasis
added). See also id. at 423 (‘should Congress, under the
pretext of executing its powers, pass laws for the
accomplishment of objects not entrusted to the government,’
Supreme Court would be bound to hold law invalid).”

19
by Judge Benavides here. I disagree with that aspect of Robinson,

and I would not extend Robinson, a Hobbs Act case, to the instant

section 844(i) prosecution.10

Accordingly, although I concur in the result I am unable to

entirely join Judge Benavides’ opinion.

10
I observe that the terms of the Hobbs Act, 18 U.S.C. § 1951, at
least require that the there proscribed robbery be one which “affects
[interstate] commerce,” while, as I have noted, section 844(i) has no
such requirement respecting its proscribed arson of property used in any
activity affecting interstate commerce.

20