Filed: Feb. 26, 2009
Latest Update: Feb. 22, 2020
Summary: , William H. Connolly, Assistant U.S. Attorney, and Michael J., Sullivan, United States Attorney, on motion for summary disposition, for appellee.only for plain error.United States v. Riccio, 529 F.3d 40, 46 (1st Cir.minimum sentence on the arson count. Kimbrough v. United States, 128 S. Ct.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1279
UNITED STATES OF AMERICA,
Appellee,
v.
MARK NUTTER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Torruella, Selya, and Lipez,
Circuit Judges.
Terrance McCarthy on brief for appellant.
William H. Connolly, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on motion for summary disposition
for appellee.
February 26, 2009
Per Curiam. Defendant-appellant Mark Nutter was indicted
on one count of arson, in violation of 18 U.S.C. § 844(i); three
counts of mail fraud, in violation of 18 U.S.C. § 1341; and one
count of using fire to commit mail fraud, in violation of 18 U.S.C.
§ 844(h)(1). After a jury trial, he was convicted on all five
counts and sentenced to a five-year mandatory minimum term of
incarceration for arson under 18 U.S.C. § 844(i), to run
concurrently with five-year sentences on each of the mail fraud
counts, plus a consecutive ten-year mandatory minimum term of
incarceration on the use-of-fire count under 18 U.S.C. § 844(h)(1).
In this direct appeal, the defendant raises three issues.
In his counseled brief, he argues that the district court erred in
instructing the jury on the interstate commerce element of the
arson count and in concluding that it had no authority under 18
U.S.C. § 3553(a) to sentence him below the applicable statutory
minimums. In a supplemental pro se brief, he further argues that
the district court violated the Speedy Trial Act by granting
various continuances without adequately explaining its reasons for
doing so.
Taking the arguments in the order in which the errors
purportedly occurred, we turn, first, to the defendant's pro se
claim that the district court violated the Speedy Trial Act. We
need not reach the merits of that argument because the defendant
waived it by failing to move for dismissal on that ground before
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trial. See 18 U.S.C. § 3162(a)(2); see also United States v.
Belton, 520 F.3d 80, 82 (1st Cir.), cert. denied,
129 S. Ct. 286
(2008).
This brings us to the defendant's challenge to the jury
instruction on the interstate commerce element of the arson
charge.1 Because the defendant failed either to propose an
alternate instruction on that point or to object to the instruction
given before the jury retired, this claim of error is reviewable
only for plain error. See Fed. R. Crim. P. 30(d), 52(b); see also
United States v. Riccio, 529 F.3d 40, 46 (1st Cir. 2008). "'[T]he
plain error hurdle, high in all events, nowhere looms larger than
1
That instruction was as follows:
In order to prove the charge of arson,
the government must prove . . . beyond a
reasonable doubt . . . that the damaged
property was used in or affected interstate
commerce.
* * *
The government must . . . prove that the
property the defendant damaged or destroyed
was used in or affected interstate commerce.
Interstate commerce means commerce or business
between any place in one state and another
place outside that state. It also means
commerce between places within the same state,
but passing through any place outside the
state.
As a matter of law, rental property used
for commercial purposes is in or affecting
interstate commerce.
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in the context of alleged instructional errors.'" United States v.
Garcia-Ortiz, 528 F.3d 74, 81 (1st Cir.) (quoting United States v.
Paniagua-Ramos,
251 F.3d 242, 246 (1st Cir. 2001)), cert. denied,
129 S. Ct. 254 (2008). To clear that hurdle, the defendant must
show "'(1) that an error occurred (2) which was clear or obvious
and which not only (3) affected the defendant's substantial rights,
but also (4) seriously impaired the fairness, integrity, or public
reputation of judicial proceedings.'"
Id. (quoting United States
v. Duarte,
246 F.3d 56, 60 (1st Cir. 2001)).
The defendant has not demonstrated that an error occurred
and so stumbles at the first prong. He argues that by instructing
the jury "that the damaged rental property was 'used for
commer[ci]al purposes . . . [and] affected interstate commerce,'"
the instruction "usurped the province of the jury" and "eliminated
[the interstate commerce] element from their deliberations."
Actually, the court instructed the jury, twice, that "the
government must prove" that the damaged property was used in or
affected interstate commerce; the court then stated, "[a]s a matter
of law"--not fact--that "rental property used for commercial
purposes is in or affecting interstate commerce."2 It never
instructed the jury that the damaged property was, in fact, rental
property used for commercial purposes or that the property
2
The defendant concedes the accuracy of that statement of the
law, as he must. See Russell v. United States, 471 U.S. 858, 862
(1985); United States v. Medeiros,
897 F.2d 13, 16 (1st Cir. 1990).
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otherwise was used in or affected interstate commerce.
Consequently, no error occurred. See United States v. Gomez, 87
F.3d 1093, 1097 (9th Cir. 1996) (characterizing similarly worded
instruction as "correctly delegat[ing] the factual determination to
the jury, leaving the determination of the legal standard to the
court"); see also United States v. Stackpole,
811 F.2d 689, 696
(1st Cir. 1987) (finding no error when court "did not instruct the
jury that the building was used in interstate commerce, but rather
that if they believed some particular testimony, that testimony
would be enough on that issue" (emphases omitted)).
To cinch matters, in both its initial and final
instructions, the court clearly instructed the jury on its role as
factfinder as opposed to the court's role as law-giver. Considered
in context and "as part of the whole trial," United States v.
Martínez-Vives, 475 F.3d 48, 52 (1st Cir. 2007) (internal quotation
marks omitted), the challenged instruction was not error, plain or
otherwise. We therefore need not reach the second, third, or
fourth prongs of the plain-error standard.
The defendant's sentencing argument can be readily
dispatched. The district court correctly concluded that it had
no choice but to impose a ten-year mandatory minimum sentence on
the use-of-fire count consecutive to the five-year mandatory
minimum sentence on the arson count. See 18 U.S.C. § 844(h)
(providing that a defendant convicted of this offense "shall, in
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addition to the punishment provided for [the underlying] felony
[here, mail fraud], be sentenced to imprisonment for ten years"
and further providing, "nor shall the term of imprisonment
imposed under this subsection run concurrently with any other
term of imprisonment"). The defendant's only argument to the
contrary is that the resulting sentence was "greater than
necessary" to serve the purposes of sentencing in violation of 18
U.S.C. § 3553(a) and the principles articulated in a trio of
Supreme Court cases. See United States v. Booker, 543 U.S. 220
(2005); Kimbrough v. United States,
128 S. Ct. 558 (2007); Gall
v. United States, 128 S. Ct. 586 (2007). As this court
recognized shortly after Booker, that decision had no effect on
statutory mandatory minimum sentences, United States v.
Antonakopoulos,
399 F.3d 68, 76 (1st Cir. 2005); although the
guidelines are no longer mandatory, sentencing courts must still
abide by statutory mandatory minimums. United States v. Ortiz,
447 F.3d 28, 38-39 (1st Cir. 2006). Indeed, Kimbrough itself
recognizes as much.
Kimbrough, 128 S. Ct. at 574 (recognizing
that "district courts [remain] constrained by the mandatory
minimums Congress prescribed").
Finding all three of the defendant's arguments to be
unavailing, we grant the government's motion for summary
disposition and affirm the conviction and the sentence. See 1st
Cir. R. 27.0(c).
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