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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-50396

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT EARL JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Texas

On Remand from the Supreme Court of the United States

April 2, 2001
Before GARWOOD, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:
This case is before us again on remand from the United States
Supreme Court.
Defendant-appellant Robert Earl Johnson (Johnson) was
convicted, on his plea of guilty, of the December 1996 arson of the
one story church building of the Hopewell United Methodist Church
in violation of 18 U.S.C. § 844(i). Johnson appealed his
conviction to this court contending that the factual basis for his

plea as put forth by the government in the district court, Fed. R.
Crim. P. 11(f), did not support a finding that the church building
was a "building, vehicle, or other real or personal property used
in interstate or foreign commerce or in any activity affecting
interstate or foreign commerce" as required by section 844(i), and
hence his burning of the building did not violate that statute.1
We essentially agreed, holding that "[b]ecause the factual basis
presented to the district court fails to establish the interstate
commerce element of 18 U.S.C. § 844(i) we . . . vacate Johnson's
guilty plea and remand for further proceedings consistent with this
opinion." U.S. v. Johnson, 194 F.3d 652, 662-63 (5th Cir. 1999).2
1Johnson, who lived next door to the church, admitted he had
set the church fire in an effort to cover up past burglaries of the
church.
2We addressed the question in terms of whether the factual
basis for the plea as reflected in the record sufficed to bring the
case within the third of the three categories of activity which
U.S. v. Lopez, 115 S.Ct. 1624 (1995), held Congress could regulate
under its commerce power, namely "those activities that
substantially affect interstate commerce." Lopez at 1629-30. We
plainly concluded that neither the first nor second of the Lopez
categories ("use of the channels of interstate commerce" and "to
regulate and protect the instrumentalities of, or persons or things
in interstate commerce", id.) applied. See Johnson, 194 F.3d at
660, 663 & n.1. The government did not contend that the building
"was used in interstate or foreign commerce" but rather that it was
"used in an activity affecting interstate commerce"; nor did the
government argue that any but the third Lopez category was
involved. It contended that category was satisfied because
"[a]rsons of similar properties, when aggregated, would have a
substantial effect on commerce." Judge Benavides held that
aggregation would be proper for such purpose if, but only if, the
effect on interstate commerce in the particular case was more than
speculative or attenuated, and that this threshold showing had not
been met by the factual basis for the plea here. Johnson at 661-
2

Our decision was handed down November 1, 1999. Neither party
filed a motion for rehearing. On November 15, 1999, the Supreme
Court granted certiorari in Jones v. U.S., 120 U.S. 494 (1999), to
review the decision of the Seventh Circuit in U.S. v. Jones, 178
F.3d 479 (1999), limited to the question "[w]hether, in light of
U.S. v. Lopez, 514 U.S. 549 (1995), and the interpretive rule that
constitutionally doubtful constructions should be avoided, . . .
section 844(i) applies to the arson of a private residence; and if
so, whether the application to the private residence in the present
case is constitutional." On January 28, 2000, the government filed
its petition for certiorari in the present case. The petition did
not expressly challenge or question the correctness of the holding
of this court or the reasoning of the opinion of Judge Benavides or
of the opinion of Judge Garwood.3 Nor did it expressly seek
reversal or modification of the decision of this court. In its
"Argument" section, the petition merely noted the grant of
certiorari in Jones, and went on to observe:
"This Court's decision in Jones will likely affect the
62. Judge Garwood, joined by Judge Barksdale, held that for
purposes of meeting the "substantially affect" requirement of the
third Lopez category in a § 844(i) prosecution aggregation was
always inappropriate because "[s]ection 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." Johnson at 665-66.
3Nor did the petition in any way indicate agreement with the
holding of this court or the reasoning of either opinion.
3

proper disposition of the instant case. The question
whether coverage of real property by an out-of-state
insurer is sufficient to satisfy the interstate commerce
element of Section 844(i) is directly presented in both
cases. More generally, the decision in Jones can be
expected to clarify the manner in which Section 844(i)'s
commerce element can appropriately be established in
individual prosecutions. The petition for a writ of
certiorari should therefore be held pending this Court's
decision in Jones and then disposed of as appropriate."
(footnote omitted).
Johnson filed his response to the government's petition for
certiorari on April 12, 2000.4 The response neither defends nor
criticizes this court's holding (or Judge Benavides's opinion or
Judge Garwood's opinion) and seeks neither affirmance or reversal
or modification thereof. The response notes that Jones involves a
home while this case involves a church and concludes by stating
"[T]he Petition for Certiorari in this case should be granted so
that this Court may resolve the differing applications of §
844(i)."
On May 22, 2000, the Supreme Court handed down its opinion in
Jones v. U.S., 120 S.Ct. 1904 (2000).
On May 30, 2000, the Supreme Court granted the government's
petition for certiorari in the instant case, vacated the judgment
of this court and remanded the case to this court "for further
consideration in light of Jones v. U.S., 529 U.S. ___, 120 S.Ct.
1904, 146 L.Ed.2d 902 (2000)." U.S. v. Johnson, 120 S.Ct. 2193
(2000).
4Johnson did not file a petition for certiorari.
4

In Jones the Supreme Court held that "an owner-occupied
residence not used for any commercial purpose does not qualify as
property `used in' commerce or commerce-affecting activity; arson
of such a dwelling, therefore, is not subject to federal
prosecution under § 844(i)." Jones, 120 S.Ct. at 1908. The Court
further held that the Indiana dwelling involved there was not
within section 844(i) notwithstanding that it was used by the owner
as collateral for a mortgage from an Oklahoma lender and by the
lender as security for that loan, was insured by a Wisconsin
insurer's policy protecting both the owner and the lender, and used
natural gas from outside Indiana. Id. at 1910. The Court held
section 844(i) required more, namely "active employment for
commercial purposes." Id. It observed that the owner "did not use
the residence in any trade or business." Id. at 1911. The Court,
having held that the residence in question was not within the terms
of section 844(i), did not reach the question of whether that
statute would be constitutional as so applied. Nevertheless, the
Court observed that its construction of section 844(i) as excluding
such a residence was "reinforced by the Court's opinion in U.S. v.
Lopez," Jones at 1908, and was "in harmony with the guiding
principle that `where a statute is susceptible of two
constructions, by one of which grave and doubtful constitutional
questions arise and by the other of which such questions are
avoided, our duty is to adopt the latter.'" Id. at 1911 (citation
5

omitted). The Court likewise invoked the rule of "`lenity'" in the
construction of criminal statutes and also the rule that "`unless
Congress conveys its purpose clearly, it will not be deemed to have
significantly changed the federal-state balance' in the prosecution
of crime" (citation omitted), noting in the latter connection that
"arson is a paradigmatic common-law state crime." Id. at 1912.
We have reconsidered in light of Jones. We conclude that
nothing in the Court's Jones opinion, or in its holding there, is
inconsistent with or suggests error in our prior action in vacating
Johnson's plea and remanding the case for further proceedings or in
either Judge Benavides's opinion or the opinion of Judge Garwood to
the effect that the factual basis for Johnson's plea as shown by
the record did not suffice to reflect the substantial effect on
interstate commerce required to bring the case within the third
Lopez category of commerce clause power (see note 2, supra). The
scope of further proceedings pursuant to our remand should,
however, be clarified in light of Jones. Our November 1, 1999,
opinions herein do not address whether the factual basis of the
plea as shown by the record suffices to reflect that at the
relevant time the church building was being actively employed for
commercial purposes so as to be within the terms of section 844(i)
as construed by Jones. We now hold that the factual basis for the
plea as shown by the record likewise does not suffice for that
purpose. See U.S. v. Rea, 223 F.3d 741 (8th Cir. 2000).
6

We accordingly vacate Johnson's guilty plea and remand for
further proceedings consistent with our November 1, 1999,
opinions,5 with this opinion and with the Supreme Court's opinion
in Jones.
VACATED and REMANDED for further proceedings
5To the extent that the November 1, 1999, respective opinions
herein of Judge Benavides and Judge Garwood conflict, Judge
Garwood's opinion, in which a majority of the panel joined, will
control on remand.
7