                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     October 24, 2008
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 07-7112
 v.                                                       E.D. Okla.
 HUGH ALAN MEANS,                            (D.C. Nos. 6:05-CV-00490-JHP and
                                                   6:04-CR-00051-RAW-1)
              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.



      Hugh Alan Means pled guilty to conspiracy to violate 18 U.S.C. § 1958(a)

(use of an interstate facility in a murder-for-hire scheme) in violation of 18

U.S.C. § 371. He filed a motion to vacate, set aside or correct sentence under 28

U.S.C. § 2255 arguing the district court lacked subject matter jurisdiction over his

prosecution because his conduct did not involve the interstate use of a

communications facility as required by 18 U.S.C. § 1958(a) at the time of his

plea. The district court denied his motion concluding his argument was waived


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
by his guilty plea but granted Means a certificate of appealability (COA) on the

issue of whether the interstate-nexus element contained within 18 U.S.C. §

1958(a) is jurisdictional and its relevance to a conviction under 18 U.S.C. § 371.

See 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b)(1). While we conclude the

district court erred in determining Means’ argument was waived by his guilty

plea, we nevertheless affirm the denial of his § 2255 motion.

                                I. BACKGROUND

      In late 2003, Means and his employee, Katherine Robertson, with whom he

was having an affair, began searching for an individual to kill Robertson’s

husband. In attempting to find a “hit man,” Means contacted Michael Bruner,

who in turn notified the Federal Bureau of Investigation (FBI). The FBI, without

Means’ knowledge, began recording Means and Bruner’s meetings and cellular

telephone conversations. Those recordings revealed Bruner introduced Means to

a “hit man” named Roy (an undercover agent); Means agreed to pay Roy $15,000

to kill Robertson’s husband and paid him a total of $10,000 before his arrest; and

Means gave Bruner $5,000 for placing him in contact with Roy.

      Means was charged with and pled guilty to conspiracy to violate 18 U.S.C.

§ 1958(a), use of an interstate facility, to wit: a telephone, in a murder-for-hire-

scheme, in violation of 18 U.S.C. § 371. At the plea hearing, Means admitted he

agreed with Robertson “to use an interstate facility in a murder-for-hire

conspiracy.” (R. Vol. I at 57.) He was sentenced to five years imprisonment. He

                                          -2-
did not file a direct appeal.

      Means timely filed a motion to vacate, set aside or correct sentence under

28 U.S.C. § 2255. He claimed that prior to December 2004, § 1958(a) only

prohibited the interstate use of a communications facility with the intent that a

murder be committed. Because the use of his cellular telephone in this case was

limited solely to intrastate calls and any interstate activity that did occur was

unilaterally caused by the government in an improper attempt to manufacture

jurisdiction, Means argued the jurisdictional requirement of the offense was not,

and could not be, demonstrated. Therefore, he complained the court lacked

subject matter jurisdiction over his conviction and sentence.

      The district court denied Means’ § 2255 motion. It concluded it had

subject matter jurisdiction over Means’ prosecution under 18 U.S.C. § 3231

which grants federal district courts “original jurisdiction . . . of all offenses

against the law of the United States.” It also determined proof of the

“jurisdictional” element of § 1958(a) was not a prerequisite to that jurisdiction:

“Although the interstate nexus element of 18 U.S.C. § 1958 is often referred to as

the ‘jurisdictional’ element of the statute, it is only ‘jurisdictional’ in the

colloquial sense that without that nexus, there can be no federal crime under the

statute.” (R. Vol. II at 1855.) Construing Means’ argument as an attack on the

sufficiency of the government’s proof of an element of an offense, the court

concluded his argument was a non-jurisdictional attack on his conviction which

                                           -3-
was waived by his guilty plea. 1

                          II. STANDARD OF REVIEW

      We review the district court’s legal rulings de novo and its factual findings

for clear error. United States v. Orange, 447 F.3d 792, 796 (10th Cir. 2006).

Determination of the district court’s subject matter jurisdiction is a question of

law reviewed de novo. In re Franklin Savings Corp., 385 F.3d 1279, 1286 n.6

(10th Cir. 2004).

                                   III. DISCUSSION

      Means argues the district court erred in concluding his § 2255 motion was

not a jurisdictional attack on his conviction. He asserts a federal court may only

convict someone of a federal crime and absent the actual commission of a federal

      1
         The district court also found Means’ argument ignored the fact he pled
guilty to § 371, not § 1958, and § 371 does not require proof he used a facility in
interstate commerce but merely an agreement to violate § 1958. After the court’s
decision, we decided Robertson’s appeal. See United States v. Robertson, 473
F.3d 1289 (10th Cir. 2007). She was convicted by a jury of conspiracy to violate
§ 1958(a) in violation of § 371. In addressing her argument that the conspiracy
jury instruction should have included an intent to commit murder element, we
noted a proper instruction on the elements of conspiracy would be: “(1) the
defendant agreed with at least one other person to violate the law; (2) the
defendant knew the essential objective of the conspiracy was to use an interstate
facility in a murder for hire; (3) the defendant, at the time the conspiracy was
entered into, intended that a murder be committed; (4) the defendant knowingly
and voluntarily participated; and (5) there was interdependence among the
members of the conspiracy.” Id. at 1292 n.1. Therefore, while the district court
was correct that a conspiracy to violate § 1958(a) does not require proof of actual
use of a facility, it does require proof the parties agreed to such use.
Consequently, whether § 1958(a) required interstate use of a facility or use of an
interstate commerce facility at the time of Means’ plea is relevant even though he
was convicted of conspiracy to violate § 1958(a).

                                         -4-
crime the court has no subject matter jurisdiction. Means claims that at the time

of his conviction, his alleged conspiracy offense required interstate use of a

communication facility. Because there was no proof of the interstate use of a

communications facility (or a plan for such use), no federal crime existed and the

court lacked subject matter jurisdiction over his conviction and sentence.

      Construing Means’ argument as a non-jurisdictional attack on the

sufficiency of the government’s proof of an element of the offense, the district

court concluded it was waived by Means’ guilty plea. See Mabry v. Johnson, 467

U.S. 504, 508 (1984) (“It is well settled that a voluntary and intelligent plea of

guilty made by an accused person, who has been advised by competent counsel,

may not be collaterally attacked.”); see also United States v. Wright, 43 F.3d 491,

494 (10th Cir. 1994) (“A defendant who knowingly and voluntarily pleads guilty

waives all non-jurisdictional challenges to his conviction.”). We agree an attack

on the sufficiency of the government’s proof of an element of the offense, even if

that element is the “jurisdictional” element, is a non-jurisdictional argument

waived by a defendant’s guilty plea. See United States v. Tush, 287 F.3d 1294,

1297 (10th Cir. 2002) (rejecting defendant’s argument that the court lacked

subject matter jurisdiction over his conviction and sentence because the

government had failed to establish interstate commerce element of his offense; the

court had jurisdiction under 18 U.S.C. § 3231 and defendant had “relieved the

government of its burden of proving the interstate commerce element . . . by twice

                                          -5-
explicitly stipulating a sufficient nexus and independently by pleading guilty.”).

However, that is not Means’ argument.

      Although not a model of clarity, Means’ § 2255 motion and supplemental

brief in the district court argued the government’s proof only showed intrastate

use of his cellular telephone in a murder-for-hire scheme and at the time of his

plea, § 1958(a) required the interstate use of a communications facility.

Therefore, Means is not claiming the government’s proof of an element of the

offense is lacking but rather its proof (to which he admitted) did not constitute a

federal offense at the time of his plea. Means’ guilty plea does not bar review of

this claim.

      An exception to the rule barring collateral attacks on guilty pleas exists

when the defendant claims he had “the right not to be haled into court at all upon

the felony charge.” Blackledge v. Perry, 417 U.S. 21, 30 (1974); see United States

v. Broce, 488 U.S. 563, 574-76 (1989); Menna v. New York, 423 U.S. 61, 62 &

n.2 (1975). We applied this exception in United States v. Barboa, 777 F.2d 1420

(10th Cir. 1985). There, Barboa pled guilty to conspiracy to damage and destroy

by explosives a building used in an activity affecting interstate commerce. He

later filed a § 2255 motion claiming the individual with whom he allegedly

conspired was a government informant. We concluded there can be no indictable

conspiracy involving only the defendant and government agents or informers. Id.

at 1422. In doing so, we rejected the government’s argument that Barboa’s guilty

                                         -6-
plea constituted an admission that he committed the crime of conspiracy. Id. at

1423 n.3. Relying on Blackledge and Menna, we held:

      A plea of guilty . . . does not bar a claim that the defendant may not
      constitutionally be convicted in the first instance, no matter how
      validly his factual guilt is established. If Barboa pled guilty to
      something which was not a crime, he is not now precluded from
      raising this [issue], which goes to the very power of the State to
      bring the defendant into court to answer the charge brought against
      him.

Id. (citation and quotations omitted); see also United States v. Barnhardt, 93 F.3d

706, 708 (10th Cir. 1996) (applying exception where defendant claimed the

factual basis for his plea did not constitute a crime). 2

      Means’ § 2255 motion alleging his conduct did not constitute a crime at the

time of his plea fits within this exception. While the district court erred in

concluding Means’ guilty plea precluded review of his § 2255 motion, we

nevertheless affirm its denial because Means’ argument lacks merit. See Swoboda

v. Dubach, 992 F.2d 286, 291 (10th Cir. 1993) (“[We] can affirm for reasons

other than those relied on by the district court, as long as those reasons find

support in the record.”).

      Prior to December 2004 and at the time of Means’ conviction, § 1958(a)

stated in relevant part: “Whoever . . . uses . . . any facility in interstate or foreign

      2
        In Barboa, we referred to this as a “jurisdictional” issue. 777 F.2d at
1423 n.3. However, neither Blackledge, Menna, Broce nor Barnhardt used the
term jurisdictional. We need not decide whether this issue is jurisdictional.
Whether considered jurisdictional or not, it is an exception to the rule barring
collateral attacks on guilty pleas.

                                           -7-
commerce, with intent that a murder be committed . . . . shall be fined . . . or

imprisoned . . . .” (emphasis added). While subsection (a) referred to “facility in

interstate . . . commerce,” subsection (b) defined “facility of interstate commerce”

as including “means of transportation and communication.” (emphasis added).

This internally inconsistent language led to confusion as to whether the statute

prohibited the intrastate use of an interstate commerce facility in a murder-for-

hire scheme. A majority of the circuits addressing the issue have decided it did.

See, e.g., United States v. Perez, 414 F.3d 302, 304-05 (2d Cir. 2005); United

States v. Richeson, 338 F.3d 653, 660 (7th Cir. 2003); United States v. Marek,

238 F.3d 310, 313 (5th Cir. 2001) (en banc); but see United States v. Weathers,

169 F.3d 336, 342 (6th Cir. 1999) (concluding the government must show the

defendant used a facility in interstate commerce to satisfy § 1958’s interstate

commerce element). 3 We agree with the majority.

      The plain language of § 1958(a) demonstrates the phrase “in interstate or

foreign commerce” is an adjective clause modifying the noun “facility” not “use”

because it directly follows “facility.” See Marek, 238 F.3d at 316. Therefore, the

statute only requires use of an interstate commerce facility, not interstate use of

such facility. This interpretation is consistent with the structure of the statute.

See Perez, 414 F.3d at 305. The substantive portion of § 1958(a) uses the phrase

      3
        In a subsequent case, however, the Sixth Circuit stated it agreed with
Marek and limited Weathers to its facts. See United States v. Cope, 312 F.3d 757,
771 (6th Cir. 2002)

                                          -8-
“facility in interstate or foreign commerce” while the definitional section,

§ 1958(b), defines the phrase “facility of interstate commerce.” “If the phrases

have different meanings, then § 1958(b) defines a phrase with no application to

the substantive [part of the] offense, and leaves undefined the phrase that does

appear in the substantive law.” Id. Even assuming § 1958 is ambiguous, its

legislative history demonstrates Congress intended to prohibit the intrastate use of

an interstate commerce facility. This is because Congress enacted § 1958

pursuant to its commerce power to regulate and protect the instrumentalities of

interstate commerce, even when the threat to those instrumentalities arises solely

from intrastate activities. See Richeson, 338 F.3d at 660-61; Marek, 238 F.3d at

317. Finally, any lingering doubt as to the proper interpretation of the pre-

December 2004 version of § 1958 is eliminated by its title—“Use of interstate

commerce facilities in the commission of murder-for-hire.” 4 See Richeson, 338

F.3d at 660; Marek, 238 F.3d at 322.


      4
       In December 2004, Congress resolved any confusion by amending
§ 1958(a) to read in relevant part:

      a) Whoever uses . . . any facility of interstate or foreign commerce,
      with intent that a murder be committed . . . . shall be fined . . . or
      imprisoned . . . .

(emphasis added). This amendment makes clear that § 1958’s interstate
commerce element is met whenever any interstate commerce facility is used in the
commission of a murder-for-hire offense, regardless of whether that use was
interstate or purely intrastate in nature.


                                         -9-
      Because the pre-December 2004 version of § 1958(a) prohibited the

intrastate use of an interstate commerce facility and Means admitted he agreed

with Robertson to the intrastate use of an interstate commerce facility 5 in a

murder-for-hire scheme, his § 2255 motion was properly denied. 6

      AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Terrence L. O’Brien
                                                Circuit Judge




      5
       Cellular telephones are instrumentalities of interstate commerce, see
United States v. Evans, 476 F.3d 1176, 1180 (11th Cir.), cert. denied, 128 S.Ct.
193 (2007), and Means does not contend otherwise.
      6
        The government contends Means waived his right to collaterally attack his
conviction and sentence in his plea agreement. The government is correct that
Means’ plea agreement contained a waiver of post-conviction rights except to the
extent Means’ received an upward departure and a sentence in excess of 60
months. It is unclear, however, whether the waiver applies to Means’ § 2255
motion, which challenges his conviction, as its language appears to only limit
future attacks on his sentence. Therefore, we do not rely on the waiver.

                                         -10-
