United States Court of Appeals
Fifth Circuit
F I L E D
In the United States Court of Appeals April 11, 2006
for the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 05-30155
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DENNIS INGLES,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
Before HIGGINBOTHAM, DeMOSS and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Dennis Ingles was convicted of mail fraud, wire fraud, and conspiracy to commit mail
and wire fraud because of his involvement in an arson scheme to defraud State Farm
Insurance Company. Dennis challenges his convictions and sentences on three primary
grounds, claiming that: 1) there is insufficient evidence to support his convictions; 2) the
district court erred in ordering excessive restitution; and 3) the district court made improper
factual determinations at sentencing. We affirm in part, reverse in part, and remand for
resentencing.
I
Ronald Ingles, son of appellant Dennis Ingles, held legal title to two camp houses near
Lake Bistineau in Louisiana. Willie Hilson, Dennis’s friend of eighteen years, set fire to one
of the camp houses late one night. After leaving the scene, Hilson called Dennis and told
him that “it was over with.” The next morning, when Dennis’s girlfriend, Michelle Wilhite,
asked Dennis why Hilson called the night before, Dennis said, “If Willie did what he said
he was gonna do, then the camp was burned down.”
The next day, Dennis’s son Ronald filed a claim with State Farm under his
homeowner’s insurance policy for the damaged camp house and its contents. Under the
policy, State Farm was obligated to pay the lienholder of the property, Mid-State Homes,
regardless of the fire’s cause and was required to pay Ronald unless he was involved in the
arson. As part of the claims process, State Farm mailed at least three letters to Ronald and
one letter to Mid-State Homes. State Farm eventually made two payments as a result of the
fire: one to Mid-State Homes for $11,889.65, the amount Ronald owed on the mortgage at
the time of the fire, and the other to Michelle Wilhite for $4,802.09 under her homeowner’s
policy for personal property that was destroyed in the fire.1 State Farm, however, did not pay
Ronald because it concluded that he was involved in the arson.
After discovering that the fire was set intentionally, the government charged Ronald,
1
Dennis disputes the $4,802.09 figure, a claim which we address later in the opinion.
2
Dennis, and Hilson with one count of wire fraud2 based on the telephone conversation
between Dennis and Hilson, four counts of mail fraud3 based on the four letters mentioned
above, and conspiracy to commit mail and wire fraud.4 Hilson pleaded guilty to the wire
fraud charge, but Dennis and Ronald proceeded to trial.
At trial, both Dennis and Hilson testified that Ronald had nothing to do with the
arson. Hilson testified that several weeks before the fire, Dennis, alone, asked him to set fire
to Ronald’s camp for $5,000, and Hilson understood this payment would come from
insurance proceeds. However, the evidence also revealed that Dennis was not legally
entitled to any of the insurance proceeds. Both Dennis and Bobby Patterson Kerr, a State
Farm claims representative, testified that Dennis never filed a claim with State Farm for any
damages arising out of the fire and that even if he had, State Farm would not have paid
Dennis because he was not the owner of either the property or the insurance policy.
Wilhite testified that Dennis instigated the acquisition of the camp houses and had
given Ronald money to purchase them. She testified that Dennis had told her that the
property really belonged to him and that he put it in Ronald’s name because he (Dennis) was
planning to file for bankruptcy. She testified that Dennis made most of the payments and
took care of the maintenance. Ronald initially denied that his father helped pay for the camp,
but he later admitted that Dennis had made a few payments. Ronald also testified that,
2
18 U.S.C. § 1343; Id. § 2.
3
18 U.S.C. § 1341; Id. § 2.
4
18 U.S.C. § 371.
3
although he was unsure exactly how often Dennis went to the camp, he thought it was about
once a month, more frequently than Ronald.
The jury acquitted Ronald but convicted Dennis on all counts. United States
Probation determined in a presentence report (“PSR”) that Dennis’s base offense level was
24 pursuant to U.S.S.G. § 2K1.4(a)(1)(B) because the fraud involved arson of a “dwelling.”
The PSR also recommended: 1) a two-level upward adjustment pursuant to
§ 3B1.1(c) because Dennis was the organizer of the conspiracy; 2) a two-level upward
adjustment pursuant to § 3C1.1 because Dennis obstructed justice by threatening a witness,
Michelle Wilhite; and 3) a two-point increase in Dennis’s criminal history score pursuant to
§ 4A1.1(d) because he was on probation at the time he became involved in the conspiracy.
Dennis objected to the recommendations in the PSR.
At sentencing, which occurred after the United States Supreme Court decided United
States v. Booker,5 the district court adopted each of the recommendations in the PSR except
for the recommended obstruction of justice and leadership enhancements. Dennis was
sentenced to prison terms of 60 months for the conspiracy count and 78 months for the mail
and wire fraud counts, to run concurrently. The district court also imposed a three-year term
of supervised release and ordered Dennis to pay $16,691.74 in restitution to State Farm.
Dennis timely filed a notice of appeal.
5
543 U.S. 220 (2005).
4
II
Dennis first challenges the sufficiency of the evidence to support his four mail fraud
convictions under 18 U.S.C. § 1341.6 We review a claim of insufficiency of the evidence
in the light most favorable to the verdict, affording the government the benefit of all
reasonable inferences.7 “The verdict must be affirmed if a rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt.”8 We conclude that
there is insufficient evidence to support Dennis’s mail fraud convictions.
“The mail fraud statute declares it a federal crime to use the mail in furtherance of a
scheme to defraud . . . .”9 “Each separate use of the mails to further a scheme to defraud is
a separate offense.”10 To sustain a mail fraud conviction, the government must prove “(1) a
scheme to defraud (2) which involves a use of the mails (3) for the purpose of executing the
6
Section 1341 provides, in relevant part:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or
for obtaining money or property by means of false or fraudulent pretenses,
representations, or promises . . . for the purpose of executing such scheme or artifice
or attempting to do so, places in any post office or authorized depository for mail
matter, any matter or thing whatever to be sent or delivered by the Postal Service, or
deposits or causes to be deposited any matter or thing whatever to be sent or
delivered by any private or commercial interstate carrier, . . . or knowingly causes to
be delivered by mail or such carrier . . . any such matter or thing, shall be fined under
this title or imprisoned not more than 20 years, or both.
7
See United States v. Gonzales, 121 F.3d 928, 935 (5th Cir. 1997).
8
Id.
9
United States v. McClelland, 868 F.2d 704, 706 (5th Cir. 1989).
10
Id.
5
scheme.”11 However, “[t]he government need not prove that the accused used the mails
himself or actually intended that the mail be used.”12 The mail fraud statute requires only
that the mailing caused by the defendant’s actions be “incident to an essential part of the
scheme.”13 One “causes” the mails to be used “[w]here one does an act with knowledge that
the use of the mails will follow in the ordinary course of business, or where such use can
reasonably be foreseen . . . .”14 To show that a mailing is “incident to an essential part of
the scheme,” the government must demonstrate that “completion of the alleged
scheme . . . depend[ed] in some way on the information or documents that passed through
the mail.”15
In United States v. McClelland, for example, an insured restaurant-owner devised a
scheme to defraud his insurance company by causing an explosion adjacent to his
restaurant.16 After the explosion, the insurance company began processing McClelland’s
claim, and letters were mailed as part of the claims process—letters that later formed the
11
Id.; see also Neder v. United States, 527 U.S. 1, 22-25 (1999) (interpreting 18 U.S.C.
§ 1341 as requiring a material misrepresentation, omission or falsehood).
12
McClelland, 868 F.2d at 707; United States v. Pazos, 24 F.3d 660, 665 (5th Cir. 1994);
Pereira v. United States, 347 U.S. 1, 8 (1954) (“It is not necessary that the scheme contemplate the
use of the mails as an essential element.”).
13
United States v. Green, 494 F.2d 820, 824 (5th Cir. 1974) (internal citations and quotation
marks omitted).
14
Pereira, 347 U.S. at 8-9.
15
United States v. Tencer, 107 F.3d 1120, 1125 (5th Cir. 1997).
16
868 F.2d at 706.
6
basis of McClelland’s mail fraud convictions. On appeal, we concluded that the mailings
were in furtherance of the scheme because “[n]o one who makes a claim on a fire policy
could reasonably expect an insurer to make payment without [supporting] documentation
[being sent in the mail].”17 Because we determined that the success of McClelland’s scheme
depended “in some way” on each letter that was mailed, we affirmed his mail fraud
convictions.18
The facts in this case, however, are distinguishable from McClelland. Here, unlike
McClelland, the insured party (Ronald) was not involved in the scheme, and therefore the
letters that form the basis of Dennis’s mail fraud convictions were not the result of a
fraudulent claim.19 State Farm concedes that it was obligated to pay Mid-State Homes
regardless of the cause of the fire. As for Ronald, the evidence demonstrated that he had no
knowledge of Dennis’s scheme to defraud State Farm, and the jury acquitted him. As a
result, Ronald’s claim was not fraudulent.
Dennis argues that because the claims submitted by Ronald and Mid-State were not
17
Id. at 708.
18
Id. at 707-09; see also, e.g., United States v. Creech, 408 F.3d 264, 269, 274 (5th Cir.
2005) (affirming a mail fraud conviction based on a mailing caused by an insured party’s arson-related
scheme to defraud); United States v. Pazos, 24 F.3d 660, 665 (5th Cir. 1994) (same); United States
v. Nguyen, 28 F.3d 477, 481 (5th Cir. 1994) (same); United States v. Martino, 648 F.2d 367, 394,
397-406 (5th Cir. 1981) (same); Blackwell v. United States, 405 F.2d 625, 626 (5th Cir. 1969)
(same).
19
See Martino, 648 F.2d at 398-99 (concluding that an insurance claim was not fraudulent
because the insured was not “involved in the arson” and did not have “any knowledge of the plan to
burn the building for the insurance”).
7
fraudulent, they cannot form the basis for his mail fraud convictions. Dennis’s position finds
support in our opinion in United States v. Martino,20 a case also involving an arson scheme.
In Martino, John Lostracco, a real estate agent, arranged the sale of his in-laws’ house to
Lostracco’s co-conspirators, who were to burn it down for the insurance proceeds after the
sale was consummated. The in-laws did not have any knowledge of the scheme. Although
a contract to sell was executed, the scheme went awry when the co-conspirators burned the
house before title transferred, after which the in-laws innocently filed a claim with their
insurance company. Lostracco was convicted of mail fraud based on the mailings between
the insurance company and the in-laws. On appeal, we reversed Lostracco’s mail fraud
convictions because there was “no evidence that the [in-laws] submitted a
claim . . . intending to deliver over or share the insurance payment with any member of the
[scheme].”21 Instead, the evidence revealed that the in-laws’ “claim was not fraudulent; their
policy was valid and they were not aware of the arson.”22 It was not enough that Lostracco
and his co-conspirators hoped that the in-laws would share the proceeds and had actually
coerced and threatened them into doing so—the in-laws’ legitimate, non-fraudulent claim
could “not be transformed into mail fraud and imputed to the enterprise.”23
The government argues that Martino is distinguishable, contending that Dennis was
20
648 F.2d 367 (5th Cir. 1981).
21
Id. at 399.
22
Id.
23
Id.
8
the de facto owner of the property, citing evidence that suggests the camp houses were
purchased by and for Dennis in Ronald’s name in an effort to shield these assets from
Dennis’s possible bankruptcy. The government contends that even though Ronald was not
aware of Dennis’s scheme to burn down one of the houses, Ronald would turn over any
insurance proceeds arising from a fire to Dennis. Hence, the government argues, Dennis
violated the mail fraud statute when Ronald caused mailings in innocent furtherance of
Dennis’s scheme to defraud. We conclude that Martino is indistinguishable and requires that
we reverse Dennis’s mail fraud convictions.
Ronald, like the in-laws in Martino, did not have knowledge of the scheme to defraud,
and therefore his insurance claim was not fraudulent. The fact that Dennis promised to pay
Hilson for the arson out of insurance proceeds is insufficient to establish mail fraud because
there was no evidence that Ronald knew that there had been arson when he submitted a claim
to State Farm.24 Like Martino, the evidence only demonstrates that Dennis hoped or
expected that Ronald would share the insurance proceeds with him. Dennis’s hope,
however, is too attenuated. Ronald’s legitimate, non-fraudulent claim caused the letters at
issue to be generated. There was no evidence that Ronald agreed or was obligated to remit
insurance proceeds to Dennis.
24
See, e.g., United States v. Creech, 408 F.3d 264, 269 (5th Cir. 2005) (holding that a claims-
related mailing caused by an insured party’s arson scheme to defraud can support a mail fraud
conviction); United States v. Pazos, 24 F.3d 660, 665 (5th Cir. 1994) (same); United States v.
Nguyen, 28 F.3d 477, 481 (5th Cir. 1994) (same); United States v. McClelland, 868 F.2d 704, 708-
09 (5th Cir. 1989) (same); Martino, 648 F.2d at 394, 397-406 (same); Blackwell v. United States,
405 F.2d 625, 626 (5th Cir. 1969) (same).
9
The mail fraud statute “does not purport to reach all frauds, but only those limited
instances in which the use of the mails is a part of the execution of the fraud, leaving all
other cases to be dealt with by appropriate [other] law.”25 Accordingly, Dennis can only be
convicted of mail fraud if the letters at issue were “for the purpose of executing” his scheme
to defraud State Farm.26 The mailings in this case were no more “for the purpose of
executing” a scheme to defraud than were the mailings in Martino.27
This conclusion is also supported by our opinion in United States v. Tencer.28 In
Tencer, an owner and an employee of a chiropractic clinic were convicted on multiple counts
of mail fraud based on their scheme to submit fraudulent claims to insurance companies and
obtain proceeds for unperformed services. On appeal, we reversed the mail fraud convictions
because the government “failed to produce any evidence tending to connect th[e mailings]
with fraudulent claims.”29 We specifically “decline[d] to endorse a broad reading of
§ 1341’s mailing requirement that would relieve the government of the burden of proving
25
Kann v. United States, 323 U.S. 88, 95 (1944).
26
McClelland, 868 F.2d at 706.
27
Cf., e.g., United States v. Castile, 795 F.2d 1273, 1281 (6th Cir. 1986) (holding that a mail
fraud conviction could not stand because mailings by the insurance company sent as part of its
investigation into possible arson served to defeat, rather than further, the defendant’s scheme); United
States v. LaFerriere, 546 F.2d 182, 185-87 (5th Cir. 1977) (holding that a letter by an attorney for
the victim of a fraud to a defendant threatening legal action and demanding a return of the funds did
not support a mail fraud conviction).
28
107 F.3d 1120 (5th Cir. 1997).
29
Id. at 1126.
10
that mailings underlying mail fraud counts are related to the fraud being perpetrated.”30
Here, the government failed to identify a fraudulent insurance claim, and consequently,
cannot sustain Dennis’s mail fraud convictions.
We recognize that both innocent mailings (i.e., those that do not contain a
misrepresentation)31 and “mailings between innocent parties”32 can support a mail fraud
conviction. However, the mail fraud statute does not merely require that a scheme to defraud
cause a mailing; it also requires that “the mailing that is caused [be] a part of the execution
of the fraud or [be] incident to an essential part of the scheme.”33 Although the government
produced sufficient evidence to connect Dennis to a scheme to defraud, it falls short of mail
fraud.34 The Supreme Court has noted, “the [government’s] showing, however convincing,
30
Id.
31
See Schmuck v. United States, 489 U.S. 705, 714-15 (1989); Tencer, 107 F.3d at 1125
(“Even a routine or innocent mailing may supply the mailing element as long as it contributes to the
execution of the scheme.”); Parr v. United States, 363 U.S. 370, 390 (1960) (“[I]mmunization from
the ban of the [mail fraud] statute is not effected [sic] . . . by the fact that the things [the defendants]
caused to be mailed were ‘innocent in themselves,’ if their mailing was ‘a step in a plot.’”).
32
See United States v. Bonansinga, 773 F.2d 166, 169 (7th Cir. 1985).
33
United States v. Green, 494 F.2d 820, 824 (5th Cir. 1974) (internal citations and quotation
marks omitted); see, e.g., United States v. Castile, 795 F.2d 1273, 1281 (6th Cir. 1986) (holding that
mail fraud conviction could not stand because mailings by insurance company sent as part of its
investigation into possible arson served to defeat, rather than further, defendant’s scheme); United
States v. LaFerriere, 546 F.2d 182, 185-87 (5th Cir. 1977) (holding that letter by an attorney for the
victim of a fraud to a defendant threatening legal action and demanding a return of the funds did not
support a mail fraud conviction).
34
See Tencer, 107 F.3d at 1126-27 n.1 (rejecting the government’s argument that an innocent
mailing supported the defendant’s mail fraud conviction because “the government has failed to offer
any explanation as to how the [mailing] furthered the scheme to defraud”).
11
that state crimes . . . were committed does not establish the federal crime of using the mails
to defraud, and, under our vaunted legal system, no man, however bad his behavior, may be
convicted of a crime of which he was not charged, proven and found guilty in accordance
with due process.”35 There is evidence that Dennis was involved in a scheme to defraud, but
“[t]here is no evidence of [his] involvement in a mail fraud scheme . . . because no mail
fraud occurred.”36 Therefore, we reverse Dennis’s mail fraud convictions.
Dennis also argues that the evidence is insufficient to support his convictions for
conspiracy and wire fraud for the same reason it does not support his convictions for mail
fraud. This argument lacks merit. To prove conspiracy to commit wire fraud under 18
U.S.C. § 371, the government must show “(1) an agreement between appellant[ ] and others
(2) to commit the crime of [wire fraud], and (3) an overt act committed by one of the
conspirators in furtherance of that agreement.”37 Additionally, the government must
demonstrate that the defendant acted with the intent to defraud.38 To prove wire fraud under
18 U.S.C. § 1343, the government must prove: “(1) a scheme to defraud and (2) the use of,
or causing the use of, wire communications in furtherance of the scheme.”39 Hilson testified
35
Parr, 363 U.S. at 393-94.
36
United States v. Martino, 648 F.2d 367, 399 (5th Cir. 1981) (emphasis added).
37
United States v. Garza, 429 F.3d 165, 168 (5th Cir. 2005) (internal citations and quotation
marks omitted).
38
Id. at 168-69.
39
United States v. Gray, 96 F.3d 769, 773 (5th Cir. 1996).
12
that he and Dennis discussed and planned the arson on several occasions and that Dennis
gave him a key for that purpose. Hilson also testified that he telephoned Dennis to inform
him that the arson was complete—testimony which was corroborated both by Wilhite and
telephone records. This evidence is sufficient to sustain Dennis’s conspiracy and wire fraud
convictions. The district court sentenced Dennis to 78 months for the mail and wire fraud
convictions. Because it is unclear what portion of that sentence was for the wire fraud
conviction, as distinguished from mail fraud, we remand for resentencing.
III
Dennis next challenges the district court’s restitution order, arguing that it requires
him to pay an amount not proven at trial and in excess of that of his co-defendant, Willie
Hilson. The legality of a restitution order is reviewed de novo, and, if the sentence is
permitted by law, the award is reviewed for abuse of discretion.40
Pursuant to 18 U.S.C. § 3663A,41 the district court ordered Dennis to pay $16,691.74
in restitution to State Farm: $11,889.65 for the amount State Farm paid to Mid-State Homes
and $4,802.09 for the amount State Farm paid to Michelle Wilhite. Dennis argues that the
restitution order violates Booker because it is based on an amount not proven at trial or
40
United States v. Reese, 998 F.2d 1275, 1280 (5th Cir. 1993); United States v. Myers, 198
F.3d 160, 168 (5th Cir. 1999); United States v. Hughey, 147 F.3d 423, 436 (5th Cir. 1998) (“Once
we have determined that an award of restitution is permitted by the appropriate law, we review the
propriety of a particular award for an abuse of discretion.”); see also United States v. Ingram, No.
04-10803, 2005 WL 1098461, at *1 (5th Cir. May 10, 2005) (reviewing in a post-Booker case the
propriety of a restitution award for abuse of discretion).
41
Section 3663A requires that a district court enter a restitution order when a defendant is
found to have committed an offense against property.
13
admitted by him. Dennis’s argument is foreclosed by our decision in United States v. Garza,
where we held that “judicial fact-finding supporting restitution orders does not violate the
Sixth Amendment.”42
Dennis also challenges the amount of the restitution order, arguing that the district
court ordered his co-defendant, Willie Hilson, to pay less restitution, and the district court
had no basis for its conclusion that State Farm paid Wilhite $4,802.09 for her claim. We find
both arguments unpersuasive. A district court may “consider the relative degrees of
responsibility of co-defendants in imposing restitution obligations” and therefore, “[t]he
simple fact that like punishment was not imposed on [Hilson] does not offend the
constitution.”43
District courts have significant discretion in evaluating a PSR’s reliability.44 A PSR
“generally bear[s] indicia of reliability sufficient to permit reliance thereon at sentencing.”45
Although Wilhite testified at trial that State Farm paid her “$3,400, thirty-something
hundred” for her claim, the PSR “revealed [that] State Farm . . . paid [her] $4,802.09 as a
result of th[e] arson.” The district court was permitted to adopt this finding in Dennis’s PSR
42
429 F.3d at 170 (citing United States v. Sosebee, 419 F.3d 451, 462 (6th Cir. 2005) (“[T]he
Booker Court’s holding that the Sentencing Guidelines are now merely advisory does not affect
orders of restitution.”)).
43
United States v. Ryan, 874 F.2d 1052, 1055 (5th Cir. 1989) (holding that there is no
constitutional violation when co-defendants are ordered to pay differing amounts of restitution).
44
United States v. Young, 981 F.2d 180, 185 (5th Cir. 1992).
45
United States v. Gracia, 983 F.2d 625, 629-30 (5th Cir. 1993).
14
without further inquiry, absent rebuttal evidence, if the PSR contained a sufficient
evidentiary basis and indicia that the information was reliable.46 To show that he was
sentenced on the basis of unreliable information, Dennis is required to prove that the
information used at sentencing is materially untrue.47 Dennis has never argued or presented
evidence that the $4,802.09 figure is incorrect, but only that it was not proven at trial.
Consequently, the district court did not abuse its discretion in calculating the amount of
Dennis’s restitution order.
IV
Dennis next argues that the district court improperly found that he committed the
conspiracy while on parole and that the burned structure was a “dwelling,” findings which
increased the sentencing range under the Guidelines.48 Although the Sentencing Guidelines
are now advisory, we continue to review the district court’s application of the Guidelines de
novo and its factual findings for clear error.49 If a factual finding is plausible in light of the
record as a whole, there is no clear error.50 We conclude that the district court did not clearly
err in making its factual determinations.
46
United States v. Cabrera, 288 F.3d 163, 172-74 (5th Cir. 2002).
47
See, e.g., United States v. Cothran, 302 F.3d 279, 286 (5th Cir. 2002).
48
See U.S.S.G. § 4A1.1(d) (adding two criminal history points when the defendant commits
the offense while on parole); U.S.S.G. § 2K1.4(a)(1) (increasing the base offense level by four when
the offense involves an arson of a “dwelling”).
49
United States v. Villegas, 404 F.3d 355, 361-62 (5th Cir. 2005); United States v.
Villanueva, 408 F.3d 193, 203 n.9 (5th Cir. 2005).
50
United States v. Parker, 133 F.3d 322, 330 (5th Cir. 1998).
15
Dennis was on probation with the Webster Parish Sheriff’s Office for a prior offense
from May 20, 2002 through May 20, 2003. Hilson testified that Dennis first approached him
about the arson in late April 2003. Additionally, Dennis admitted during direct examination
that he had a conversation with Hilson about the arson in March 2003. The district court’s
finding that Dennis was on probation at the time the conspiracy began is well-supported by
the evidence, and not clear error.
We have previously stated that a “dwelling” is “‘an enclosed space, permanent or
temporary, in which human beings usually stay, lodge, or reside.’”51 “[W]hether by vacancy,
physical deterioration, altered use, or otherwise, a point in time exists at which a dwelling
loses its character as a residence and becomes a ‘mere’ building.”52 That “point in time” was
not reached in this case. The structure at issue was a camp house that had a roof, walls, and
furnishings, including a television, microwave, and several beds. Additionally, the record
indicates that a number of Dennis’s friends lived in the structure for an extended period
(between three and five months) ending in early 2003—just months before the fire.
Although the evidence indicates that Dennis’s friends left the property in a dilapidated
condition, it also reveals that most of the damages had been repaired by the time of the fire.
Contrary to Dennis’s argument, the four-month vacancy preceding the fire did not alter the
structure’s character as a “dwelling,” particularly in light of the fact that at the time of the
51
United States v. Smith, 354 F.3d 390, 397-98 (5th Cir. 2003) (quoting BLACK’S LAW
DICTIONARY 524 (7th ed. 1999)).
52
Id. at 398 (internal citations and quotation marks omitted) (holding that a three-month
seasonal vacancy did not alter a motel’s “dwelling” status).
16
fire the structure was furnished as a functioning residence.53 Accordingly, the district court
did not clearly err in concluding that the structure was a “dwelling” within the meaning of
U.S.S.G. § 2K1.4(a)(1).
*****
For the foregoing reasons, we AFFIRM in part, REVERSE in part, and REMAND for
resentencing.
53
See United States v. Graham, 982 F.2d 315, 316 (8th Cir. 1992) (holding that “structures
used as shelters for weekend fishing retreats” are “dwellings”).
17