[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 95-8142
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D. C. Docket Nos. CV 94-276-3-MAC-WDO
CR 91-29-MAC-WDO
JAMES ALTON BELFLOWER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(December 3, 1997)
Before BLACK, Circuit Judge, HILL and HENDERSON, Senior Circuit
Judges.
PER CURIAM:
Appellant James Alton Belflower appeals the district court's denial of his
motion under 28 U.S.C. § 2255, to vacate, set aside, or correct sentence. Belflower
asserts, inter alia, that the Government failed to establish the interstate commerce
nexus required for federal jurisdiction under the federal arson statute, 18 U.S.C.
§ 844(i). We conclude that the Government satisfied this jurisdictional prerequisite
and therefore affirm.
I. BACKGROUND
On Sunday, February 24, 1991, deputy sheriff John Thrower of the Bleckley
County Sheriff's Department prepared to leave home for patrol duty. Deputy
Thrower went to his car, a 1989 Crown Victoria owned by the Sheriff's Department,
cleaned it, placed sheriff's decals on its sides, and mounted his radar unit. At
approximately 12:30 p.m., Deputy Thrower entered his car and turned the ignition
key. When the key hit the first accessory mode, a bomb attached to the vehicle
exploded, lifting the car off the ground and causing extensive damage to the vehicle.
Agents from the Bureau of Alcohol, Tobacco & Firearms (ATF) arrived at
the scene and secured evidence from the site. Knowing that several confrontations
had occurred between Thrower and Belflower prior to the bombing, ATF agents
also went to Belflower's residence to question him. Those agents discovered
incriminating evidence outside Belflower's home. Tests revealed that several items
2
found at Belflower's residence were consistent with the evidence gathered at the
bomb scene. At trial, the Government presented additional evidence and testimony
which implicated Belflower.
On November 19, 1991, a jury found Belflower guilty on all counts of a four-
count indictment charging him with the following: (1) maliciously damaging and
destroying and attempting to destroy by means of an explosive, a vehicle used in
interstate commerce, in violation of 18 U.S.C. § 844(i) (Count I); (2) using a
destructive device during and in relation to a crime of violence, in violation of 18
U.S.C. § 924(c)(1) (Count II); (3) receiving and possessing a destructive device that
was not registered with the National Firearms Registration and Transfer Record, in
violation of 26 U.S.C. § 5861(d) (Count III); and (4) manufacturing an explosive
pipe bomb, in violation of 26 U.S.C. § 5861(f) (Count IV).
On March 5, 1992, Belflower was sentenced to imprisonment.1 Judgment
was entered on March 9, 1992. Belflower filed a notice of appeal on March 13,
1992, and this Court affirmed Belflower's conviction on October 22, 1993.
1
Belflower was sentenced to 121 months' imprisonment on Count I, 15 months' imprisonment
on Counts III and IV to run concurrently with each other and consecutive to Count I, and 360
months' imprisonment on Count II to run consecutive to Counts I, III, and IV. In addition, the court
sentenced him to a five-year term of supervised release and required him to pay the mandatory
assessment fee for each count.
3
On June 30, 1994, Belflower filed a pro se Petition for Correction and/or
Modification of Imposed Term of Imprisonment, pursuant to 18 U.S.C. § 3742(f).
The district court construed this petition as a motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. In his petition, Belflower asserted, among other
claims,2 that the trial court lacked jurisdiction because the Government failed to
establish the interstate commerce nexus required by 18 U.S.C. § 844(i).
II. DISCUSSION
Belflower argues that pursuant to United States v. Lopez, 514 U.S. 549, 115
S. Ct. 1624 (1995), and United States v. Denalli, 73 F.3d 328 (11th Cir.), modified,
90 F.3d 444 (11th Cir. 1996), the Government was required to prove that Deputy
Thrower's automobile was used in an activity affecting interstate or foreign
commerce. Belflower further asserts that the Government failed to satisfy this
jurisdictional prerequisite. We disagree.
2
In addition to the jurisdictional claim, Belflower's petition raised the following claims: (1) his
sentence resulted from an impermissible pyramiding of penalties for the same offense; (2) he
received ineffective assistance of counsel; (3) the evidence admitted at trial was insufficient to
sustain a conviction; (4) the court admitted evidence at trial that was obtained as a result of an illegal
search and seizure; and (5) prosecutorial misconduct. After carefully considering these claims, we
affirm the district court. See 11th Cir. R. 36-1.
4
In Russell v. United States, 471 U.S. 858, 105 S. Ct. 2455 (1985), the Supreme
Court considered the scope of § 844(i)3 in a case involving the attempted arson of
a two-unit apartment building. The Court examined the text of § 844(i) and
concluded that the statute “expresses an intent by Congress to exercise its full power
under the Commerce Clause.” Id. at 859, 105 S. Ct. at 2456. The Russell Court
also considered the legislative history of § 844(i) and noted that “after considering
whether the bill as originally introduced would cover bombings of police stations
or churches, the bill was revised to eliminate the words ‘for business purposes' from
the description of covered property.” Id. at 860-61, 105 S. Ct. at 2456-57 (footnote
omitted). The Court concluded that “the legislative history suggests that Congress
at least intended 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.
A decade later, the Supreme Court held in United States v. Lopez, 514 U.S.
549, 115 S. Ct. 1624 (1995), that Congress exceeded its Commerce Clause power
in enacting the Gun-Free School Zone Act. After outlining the three broad
3
Section 844(i) provides:
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 . . . fined . . . , or both . . . .
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categories in which Congress may regulate commerce, the Court focused its inquiry
upon “whether the regulated activity ‘substantially affects' interstate commerce.”
Id. at 559, 115 S. Ct. at 1630. The Court concluded that the Gun-Free School Zone
Act failed to satisfy this requirement because the terms of the statute indicated that
it had “nothing to do with ‘commerce' or any sort of economic enterprise.” Id. at
561, 115 S. Ct. at 1630-31.
In the two years since the Supreme Court decided Lopez, this Court has
considered several challenges to federal statutes enacted under Congress's
Commerce Clause power, including the felon-in-possession statute, see United
States v. Chisholm, 105 F.3d 1357 (11th Cir. 1997); United States v. McAllister, 77
F.3d 387 (11th Cir. 1996); the Hobbs Act, see United States v. Castleberry, 116 F.3d
1384 (11th Cir. 1997); and the federal arson statute, see United States v. Chowdhury,
118 F.3d 742 (11th Cir. 1997); United States v. Utter, 97 F.3d 509 (11th Cir. 1996);
United States v. Denalli, 73 F.3d 328 (11th Cir.), modified 90 F.3d 444 (11th Cir.
1996). In none of these cases did this Court determine that the challenged statute
exceeded Congress's Commerce Clause power. In only one case, Denalli, did this
Court find that the government failed to satisfy the interstate commerce nexus
required for federal jurisdiction. Denalli, 73 F.3d at 330-31.
6
The defendant in Denalli, Raymond Denalli, had been convicted under
§ 844(i) for burning down the home of his neighbors, the Federles. Id. at 329.
Pursuant to the Supreme Court's holding in Lopez, this Court considered whether
“the [Federles'] residence was used in any activity affecting interstate or foreign
commerce.” Denalli, 90 F.3d at 444. The only evidence offered by the Government
to satisfy this requirement showed that Mr. Federle occasionally produced
memoranda on his personal computer which he printed out at home and hand
delivered to co-workers at his place of employment, a corporation engaged in
international business. Denalli, 73 F.3d at 330-31. This Court found such evidence
insufficient to establish the interstate commerce nexus required by § 844(i) and
therefore reversed Denalli's conviction.
Belflower argues that under the standard articulated in Denalli,4 the
Government failed to establish that Deputy Thrower's automobile was used in an
activity affecting interstate or foreign commerce. In particular, Belflower contends
4
We recognize that there is disagreement over whether the analysis applied by this Court in
Denalli is consistent with other precedent in this circuit applying Lopez, even with respect to
subsequent cases interpreting § 844(i). If one interprets Denalli to stand for the principle that the
government must prove in each case a substantial effect on interstate commerce, then some degree
of tension may exist. However, Denalli turned on the government's complete failure to proffer
evidence indicating anything more than a de minimus effect. In this light, Denalli simply seems to
represent the unusual and rare case envisioned by the Supreme Court when it recognized that
“perhaps not every private home” will fall within the scope of § 844(i). Russell v. United States, 471
U.S. 858, 862, 105 S. Ct. 2455, 2457 (1985). In the present case, we need not resolve this issue
because even if one interprets Denalli to require a finding of substantial effect in each case, we
conclude the Government satisfied that standard here.
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that because patrolling and other law enforcement activities are not commercial,
they do not have an effect on interstate commerce. However, categorically labeling
a police vehicle as non-commercial does not preclude it from being used in an
activity that affects interstate commerce. As the Supreme Court noted in Russell,
the legislative history of § 844(i) indicates that Congress enacted the statute without
the language “for business purposes” with the specific intent of bringing police
stations and churches within the scope of the statute. Russell v. United States, 471
U.S. 858, 860-61, 105 S. Ct. 2455, 2456-57 (1985). Lopez does not affect the
Russell Court's analysis on this point because § 844(i) still requires that non-
commercial buildings or vehicles be “used in interstate or foreign commerce or in
any activity affecting interstate or foreign commerce.” 18 U.S.C. § 844(i).
In the present case, the 1989 Crown Victoria was used by Deputy Thrower
in the performance of his law enforcement duties. Although Thrower is the
designated narcotics officer for Bleckley County, he also patrols traffic and
performs other duties because the Sheriff's Department is small. Thus, Thrower has
patrolled traffic on Interstate 16 and other roads within Bleckley County. Of the
people to whom he issues traffic citations, Thrower estimated that twenty to thirty
percent are from out of state. Thrower has also participated in interstate narcotics
investigations and has made several drug arrests on the interstate. When Thrower
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stops a person or vehicle on the street, he usually runs the identity of the person or
vehicle through computers to determine if such individual or vehicle is wanted by
state or federal authorities. In the course of his duties, Thrower has arrested
individuals who lived outside Georgia, has recovered stolen property outside of the
state, testified as a witness in out of state cases, and has attended law enforcement
training sessions outside Georgia. These facts clearly demonstrate that Thrower's
law enforcement duties have a significant impact on interstate commerce.
Belflower argues that these facts are insufficient because the Government
offered no specific evidence to establish that Thrower actually used the 1989 Crown
Victoria in undertaking all of the above activities. Belflower's argument
misconstrues the focus of the analysis required in the present case. Whether
Thrower actually used the 1989 Crown Victoria to perform every one of his duties
is not determinative. The determinative factors are that Thrower used the
automobile in the performance of his law enforcement duties and that the
performance of those duties clearly represents an activity affecting interstate
commerce.5
III. CONCLUSION
5
We note that our holding is limited to the facts of this case and does not establish a categorical
rule that law enforcement is per se an activity that affects interstate or foreign commerce. Such a
rule would contradict the clear lesson of Lopez, which “reminds us of the necessity of a case-by-case
inquiry.” United States v. Chowdhury, 118 F.3d 742, 745 (11th Cir. 1997).
9
The evidence proffered by the Government in the present case establishes that
the 1989 Crown Victoria which Belflower attempted to destroy was used in an
activity affecting interstate or foreign commerce. We therefore conclude that the
Government satisfied the jurisdictional prerequisite of § 844(i).
AFFIRMED.
10