                              PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 13-4949


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MICHAEL L. WHITE,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Thomas E. Johnston,
District Judge. (2:12-cr-00221-1)


Argued:   August 20, 2014               Decided:   November 17, 2014


Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and George L.
RUSSELL, III, United States District Judge for the District of
Maryland, sitting by designation.


Affirmed by published opinion.  Chief Judge Traxler wrote the
opinion, in which Judge Russell joined.   Judge Wynn wrote an
opinion dissenting in part.


ARGUED:    James McCall Cagle, Charleston, West Virginia, for
Appellant.    Larry Robert Ellis, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, West Virginia, for Appellee.      ON BRIEF:
R. Booth Goodwin, II, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
TRAXLER, Chief Judge:

       Appellant Michael L. White was charged with crimes related

to the intentional burning of a two-unit duplex that he owned

and managed and to his recovery of insurance proceeds from the

fire.       Following a jury trial, White was convicted of conspiracy

to commit arson and mail fraud, see 18 U.S.C. §§ 371, 844(i),

1341 (Count 1); aiding and abetting arson, see 18 U.S.C. §§

2(a), 844(i) (Count 2); and accessory after the fact to arson,

see    18    U.S.C.   §§   3,   844(i)   (Count       3).   The    district    court

imposed a 78-month term of imprisonment for each count, to run

concurrently.

       On appeal, White raises two challenges to the sufficiency

of    the    evidence.     First,   White      contends     that   the   government

failed to establish the nexus to interstate commerce required to

sustain arson-related convictions as charged in Counts 1 and 2.

Second, he argues the evidence is insufficient to establish that

he assisted an uncharged co-conspirator in evading apprehension

and    punishment     as    required     for    the    accessory-after-the-fact

conviction charged in Count 3.                 Finally, White challenges his

sentence, arguing that the district court used an inflated base

offense level as a result of the court’s erroneous determination

that the duplex qualified as a “dwelling” under United States

Sentencing      Guidelines      Manual   (“U.S.S.G.”)       §   2K1.4(a)(1).     We



                                          2
reject each of White’s arguments and affirm his convictions and

sentence.

                                         I.

       White was a businessman in Logan County, West Virginia, who

owned or held an interest in several local ventures including a

helicopter service, an airport management company, and several

coal mines.     White also owned a two-unit duplex near the town of

Van,    West   Virginia    (the   “duplex”       or   “Van    duplex”),    which      he

began renting to tenants in 1998.

       In the summer of 2009, White was experiencing financial

setbacks and defaulted on his helicopter lease, resulting in the

closure of his helicopter business and, eventually, the entry of

a   judgment    against    him    personally      for    $556,000.        White      was

forced to borrow $40,000 from an acquaintance to cover expenses.

       Additionally,      White   was     no    longer    receiving       an    income

stream from his duplex by the summer of 2009.                     The Van duplex

qualified as government-subsidized housing.                     For a period of

time, the Department of Housing and Urban Development (“HUD”)

sent subsidized rent payments directly to White on behalf of the

last tenants to occupy the Van duplex before the October 2009

fire.      Christy    Ketcherside       Smith     (“Ketcherside”),        who       began

living in Apartment 1 in the spring of 2008, testified that she

lost her HUD subsidy and was no longer paying rent by early

2009.       Shannon    Dickens,     who        resided   in    Apartment        2     for

                                          3
approximately       nine      years    before    the     fire,   also    received       the

benefit of HUD rent subsidies until she found employment and

began paying the rent herself.                  Dickens stopped paying rent in

2008 when her heating and air conditioning unit stopped working

and White failed to repair it.                 Dickens continued to live in the

duplex, however, until late September or early October 2009.

      White grew increasingly frustrated that his tenants in the

Van duplex were not paying rent and that he was not making money

on the property.           White began expressing this frustration to

Kim Kinder, an across-the-street neighbor with whom White was

carrying     on    an    affair.       Kinder,     who    also   regularly       cleaned

White’s house, gathered from White’s many complaints that the

property had become “a thorn in his side.”                   J.A. 279.

      In June 2009, White purchased a fire-insurance policy to

cover the Van duplex “as a two-family tenant-occupied” rental

property.        J.A. 427.       The policy became effective on July 19,

2009, and provided $80,000 coverage for the duplex and $20,000

for   its    contents.         Later    that    summer,     White   told       Kinder   he

wanted      to    talk   to    her     husband    “Doug     about       some    kind    of

proposition as to what he could do with the duplex.”                           J.A. 282.

The Kinders met with White who explained that he was not making

any money from the duplex and wanted Doug to burn it down as

soon as possible.          White instructed that no accelerants be used

so that the fire would not be “traced back to him,” J.A. 283,

                                           4
and that the Kinders not contact him for at least a week after

setting the fire.             Finally, White offered Doug, an unemployed

ex-convict, $4000 to do the job.                   White paid the Kinders $200 up

front as a show of “good faith,” J.A. 284, and indicated the

balance would be paid upon completion of the job.

        During     the     meeting,    White       told    the    Kinders    that    he    had

already evicted both tenants and that, as far as he knew, the

tenants were gone.            This was not entirely true, however.                     White

did   not     even    begin       eviction    proceedings         until     September      11,

2009.       There was no evidence that White ever obtained service on

Ketcherside, the tenant in Apartment 1.                           In fact, Ketcherside

testified that she was never served with any eviction papers.

Thus,       before    the    fire,    White    had        not    obtained    an    order   of

eviction against Ketcherside.                 Although Ketcherside had not been

sleeping      in     the    Van   duplex     for    several       months,    she    had    not

completely abandoned the premises—she still kept her furniture

and     her    children’s         clothing     and        toys    in   the    duplex       and

periodically went there to retrieve items and check on things.

White was able to obtain an eviction order against Dickens, his

Apartment 2 tenant, directing that she vacate the premises by

October 15, 2009—the day before the fire. 1



        1
       Dickens testified that she vacated her unit a few weeks
before the eviction deadline.


                                               5
     The Kinders made three separate trips to the duplex before

setting the fire.        On the first two trips, the Kinders decided

to wait when they noticed that the lights were on in the duplex

and that people were in the building.                 On October 16, 2009,

Kinder   and    her     husband    finally    found    the    duplex   without

occupants, although the lights were on and there were “a lot of

clothes on the floor.”            J.A. 287.    Kinder waited in the car

while her husband entered the duplex and started a fire using a

small amount of gasoline.           The Kinders returned home once the

fire had been set.

     The heat and smoke damage to the Van duplex caused by the

fire exceeded the limits of White’s new fire policy.                    Thus,

White recovered the full $80,000 proceeds on his claim, plus an

additional     amount    for   major   appliances.       As    promised,   the

Kinders waited one week before contacting White, who then gave

Doug $1000.     White refused to make any further large payments,

claiming that he received very little insurance money because

the Kinders did not cause sufficient damage to the duplex.                 In

response, the Kinders resorted to “begging and threatening” to

contact the police, which prompted White to make a number of

smaller payments of $100 or less.              In all, White paid about

$2000 rather than the $4000 he had promised.

     In June 2010, Kinder was contacted by West Virginia State

Police   Officer        T.C.   Bledsoe.        After    initially      denying

                                       6
involvement in the arson, Kinder confessed to her involvement in

the Van duplex arson and agreed to cooperate with the police.

Officer Bledsoe arranged for Kinder to make a recorded telephone

call   to     White   in   which    they    discussed     the    fire    and   White’s

payment of money to the Kinders.                During the call, Kinder made

statements suggesting White’s involvement in the arson to which

White did not deny.          Kinder also asked if White intended to give

her    more      money,    and   White     indicated      that   Kinder    had      been

threatening him.

       Officer Bledsoe subsequently interviewed White.                    During the

interview, White acknowledged his relationship with Kinder, his

frustration over his ownership of the duplex, and the fact that

a   fire    had    occurred.       White    then   told    Officer      Bledsoe     that

Kinder confessed to having started the fire about two months

after the duplex burned.             White further stated that before the

fire he had asked Doug Kinder to go to the duplex “and clean it

up and get it prepared to either rent or sell.”                   J.A. 586.

       White testified in his own defense at trial.                        He denied

knowledge of or involvement in the burning of his duplex.                             To

the extent that the recorded phone call made it appear that

White was “fully aboard with the idea that [the duplex] would be

burned     and    burned   by    [Kinder],”     White     explained     that   he    was

simply “playing along” at the request of a mutual friend, Mark

Vincent, who told him not to argue with Kinder because she was

                                            7
suicidal.       J.A.    508.        Vincent       testified   and    confirmed      this

claim.        White    was   convicted       on    all    three    counts,   and     the

district court imposed concurrent 78-month terms of imprisonment

on each count.        White now appeals.

                                           II.

     White first argues that there was insufficient evidence to

establish the interstate commerce element of the crime of arson

under    18   U.S.C.    §    844(i).       Accordingly,       he    argues   that    the

district      court    was   in    error    when     it   denied    the    motion    for

judgment of acquittal.            We disagree. 2

     We review de novo the district court’s denial of a motion

for judgment of acquittal.              See United States v. Hamilton, 699

F.3d 356, 361 (4th Cir. 2012).                    In considering a defendant’s

argument      that    the    evidence      was    insufficient      to    support   his


     2
       To the extent that White frames the issue in terms of
federal subject matter jurisdiction, he misunderstands the
jurisdiction of the federal courts. As we have explained, “the
jurisdictional element is merely one element of the criminal
activity proscribed by § 844(i), and whether it is demonstrated
in an individual circumstance does not affect a court’s
constitutional or statutory power to adjudicate a case.” United
States v. Carr, 271 F.3d 172, 178 (4th Cir. 2001) (internal
quotation marks omitted). A claim of an insufficient connection
to interstate commerce is a challenge to one of the elements of
the government’s case and is therefore considered a sufficiency
of the evidence claim.     See id.; see also United States v.
Williams, 299 F.3d 250, 253 (3d Cir. 2002) (“A property’s use in
an activity affecting interstate commerce is an essential
element of the crime of arson under 18 U.S.C. § 844(i)” which,
“[l]ike all elements of criminal offenses, the Government must
prove . . . beyond a reasonable doubt.”).


                                            8
convictions, we will uphold a jury’s verdict “if, viewing the

evidence in the light most favorable to the government, there is

substantial evidence to support the conviction.”                     Id. (internal

quotation    marks    omitted).      “Substantial         evidence    is    evidence

that a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.” United States v. Green, 599 F.3d 360, 367

(4th Cir. 2010) (internal quotation marks omitted).                    Thus, “the

jury’s verdict must stand unless we determine that no rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.”                United States v. Royal, 731

F.3d 333, 337 (4th Cir. 2013).

      Under 18 U.S.C. § 844(i), it is unlawful to “maliciously

damage[ ] or destroy[ ], or attempt[ ] 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.”

It   is   beyond    dispute   that   the     rental   of    real   estate     is   an

“activity that affects commerce” under § 844(i).                       Russell v.

United    States,    471   U.S.   858,     862   (1985)    (internal       quotation

marks omitted).        In Russell, the Supreme Court held that the

arson of a two-unit apartment building that was used as rental

property fell within the purview of 18 U.S.C. § 844(i).                       In so

holding, the Court noted that, although § 844(i) “only applies

                                         9
to   property     that   is     ‘used’    in    an     ‘activity’            that    affects

commerce,” “[t]he rental of real estate is unquestionably such

an activity.”      Id.      Because the apartments in the building were

rented to tenants at the time of the fire, the Court concluded

that   the   property     was    “being     used      in    an    activity         affecting

commerce.”        Id.     Accordingly,         White       does       not,    and    cannot,

challenge the general proposition that the rental of the Van

duplex was an activity affecting commerce under § 844(i).                                  See

United   States    v.    Medeiros,    897      F.2d    13,       16    (1st    Cir.       1990)

(“Russell thus holds that rental property is per se property

used in an activity affecting interstate commerce.”)

       White’s    appeal,     however,    presents         an     issue      not    directly

addressed by Russell—whether a rental house can still be used in

an activity affecting commerce under § 844(i) if the tenants

vacated before the fire was set.                     This court has previously

answered this question in the affirmative.                       See United States v.

Parsons, 993 F.2d 38 (4th Cir. 1993).                  In Parsons, we concluded

that a house used as rental property for two or three years

qualified as real property “used in an activity that affects

interstate    commerce”       under   §   844(i)      even       though       it    had   been

vacant for two months at the time of the fire.                           See id. at 40.

Rejecting the idea that “vacancy alone . . . constitute[s] a

‘removal’ from the rental market,” id. at 41, we determined that

there was sufficient evidence to support the conclusion that the

                                          10
house was rental property at the time of the fire because (1)

the house was insured as rental property at the time of the

fire, and (2) having found that the defendant commissioned the

fire,   the    jury    could       also       have    reasonably      inferred      that   the

defendant      never      intended      to      take    the    house    off    the    rental

market.      See id.

    Applying Parsons to the case before us, we conclude that

there   is    sufficient       evidence          in    the    record    to    support      the

conclusion that, at the time of the fire, the Van duplex was

being “used in interstate . . . commerce or in [an] activity

affecting     interstate       .    .     .    commerce.”        18    U.S.C.       § 844(i).

Significantly, the Van duplex had been used as a rental property

for more than ten years at the time of the fire.                             The fact that

both tenants were no longer living in the duplex at the moment

the fire was set, of course, does not compel the conclusion that

it had been removed from the rental market.                            See Parsons, 993

F.2d at 41.           It is not even clear that White’s Apartment 1

tenant,      Christy      Ketcherside,           actually       vacated       the    duplex.

Although      she   was    living       and     sleeping       elsewhere,      Ketcherside

still kept furniture and children’s clothing and toys there and

periodically checked on her property.                         Those items were burned

in the fire.          And although White apparently filed an eviction

action against Ketcherside, he never served her with process—

thus, there is no indication Ketcherside was obligated to vacate

                                                11
and could not have resumed living in the duplex at the time of

the    fire.     White     did    obtain     an     order   evicting   Dickens     from

Apartment 2 but permitting her to remain there until the day

before the fire—October 15.               A reasonable finder of fact could

conclude on this evidence that Ketcherside still had a right to

occupy the premises at the time of the fire and that Dickens

technically had the right to do so up until the day before the

fire.    Second, as in Parsons, the Van duplex was insured as a

commercial rental property at the time of the fire, and White

claimed and recovered the limits of the policy after the fire.

This    is     strong     evidence      that      the   duplex   functioned      as     a

commercial property.             Indeed, “once the business nature of the

property at issue is established, courts will presume, absent

indicia of an intention to permanently remove the property from

the stream of commerce, that the requisite interstate commerce

nexus exists.”           Williams, 299 F.3d at 256 (internal quotation

marks and alterations omitted).                     The record is devoid of any

indication that White intended to remove the duplex from the

rental market.          To the contrary, White told Officer Bledsoe that

prior to the fire he had asked Doug Kinder to clean the duplex

so    that   White      could    rent   it     to    tenants   again   or   sell      it.

Additionally, in light of the overwhelming evidence that White

commissioned the arson, the jury could reasonably infer that

White had no intention whatsoever to take the duplex off the

                                             12
market      but    instead    wished       to    collect    the    insurance       proceeds

while it was still considered a rental property under the terms

of the insurance policy.             See Parsons, 993 F.2d at 41. 3

      White contends that Parsons is no longer good law after

Jones v. United States, 529 U.S. 848 (2000).                            We disagree.       In

Jones, the Supreme Court held that § 844(i) does not apply to a

private, owner-occupied residence that is being used only “for

everyday family living” rather than a commercial purpose.                                 Id.

at 859.      The Court rejected the argument that the residence fell

within the scope of § 844(i) because it was being “used” to

secure a mortgage loan from an out-of-state banker, to obtain an

insurance         policy    issued    by    an       out-of-state       carrier,    and   to

receive natural gas from out-of-state suppliers.                             See id. at

855-56.       The Court explained that the term “used” in § 844(i)

“mean[s]      active       employment      for       commercial    purposes,       and    not

merely a passive, passing, or past connection to commerce.”                               Id.

at 855.       Seizing on the Court’s use of the word “past,” White

argues    that      Jones    requires      the       government    to    prove     that   the

property is being rented by a tenant at the very moment the fire

is   set,    i.e.,     that    it    is    presently       being    used    in   commerce.

According to White, the moment Dickens vacated the Van duplex,

      3
       It would be a perverse result indeed if White could
“remove” the duplex from the market by planning and directing
the arson of the duplex, thereby defeating the interstate nexus
requirement.


                                                13
the landlord-tenant relationship ceased to exist.                                There being

no evidence that he sought to continue renting the premises to

new tenants at the time of the fire, White argues the only

possible conclusion from the evidence is that the Van duplex was

no   longer      being      “used       in”       an    activity    affecting        interstate

commerce under § 844(i) when the Kinders burned it.

       Jones     is    not       inconsistent           with   Parsons.         The     Court’s

primary focus in Jones was the nature of the use or function of

the building for purposes of § 844(i).                             In Jones, the Supreme

Court emphasized the “qualifying words ‘used in,’” which mandate

that “the damaged or destroyed property must itself have been

used in commerce or in an activity affecting commerce.”                                 Id. at

854.         Jones    gives      us     a    two-part      outline     for    assessing       the

applicability of 18 U.S.C. § 844(i), which requires an analysis

of     the     “function          of        the    building        itself,     and     then     a

determination          of     whether         that       function     affects        interstate

commerce.”           Id.    at    854       (emphasis     added).          Adhering    to    this

framework, the Court concluded that the burning of an private

family residence not being actively used for commercial purposes

fell outside of the scope of § 844(i).

       Parsons        is    not        inconsistent        with      the     two-part       Jones

analysis.        As we have explained, the evidence is sufficient to

permit the conclusion that the Van duplex was functioning as a

two-unit rental apartment at the time of the fire.                                    There is

                                                   14
simply no evidence suggesting that the function of the duplex

changed before the fire.                Thus, viewing the evidence in the

light most favorable to the government, we conclude there is

substantial evidence in the record to support the verdict. 4

                                         III.

       White next challenges the district court’s denial of his

Rule       29   motion   for     judgment         of   acquittal      challenging     the

sufficiency        of    the    evidence      to       support    a    conviction     for

accessory after the fact to arson charged in Count 3.                          In order

to   prove      accessory      after   the   fact      under     18   U.S.C.   § 3,   the

government must demonstrate “(1) the commission of an underlying

offense against the United States; (2) the defendant’s knowledge

of that offense; and (3) assistance by the defendant in order to

prevent the apprehension, trial, or punishment of the offender.”

United States v. De La Rosa, 171 F.3d 215, 221 (5th Cir. 1999).

The government charged that White violated 18 U.S.C. § 3 when he

knowingly made a false and misleading statement to an insurance

       4
       We note White makes a related argument—which he does not
raise separately but includes as part of his challenge to the
government’s proof of the interstate commerce element—that the
district court’s jury instructions contravene Jones.     For the
same reasons we reject White’s sufficiency of the evidence
argument based on Jones, we find no reversible error in the
district court’s instructions which, “taken as a whole,
adequately state the controlling law.”    United States v. Ryan-
Webster, 353 F.3d 353, 364 n.17 (4th Cir. 2003) (internal
quotation   marks  omitted).      Moreover,  in  light   of  the
overwhelming evidence against White, any error in the district
court’s instructions would have been harmless.


                                             15
representative for the purpose of helping Kinder—and ultimately

himself—avoid apprehension.

       At trial, the government presented the testimony of two

Nationwide            Insurance          representatives          who       interviewed        White.

First, Charles Adkins, who was assigned by Nationwide to assess

White’s insurance claim based on the Van duplex fire, testified

that in an October 2009 interview a few days after the fire,

White suggested that one of the tenants may have started the

fire       in   response       to       White’s     efforts       to    evict    them.         Adkins

indicated        that     he       notified       Nationwide’s         Special        Investigation

Unit       (“SIU”)      about          White’s     statement        that      tenants       may   have

intentionally started the fire and that the SIU’s function was

to   follow       up    with       law      enforcement         officials.        White’s         false

statement to Adkins was charged in Count 1 as an overt act in

furtherance of the arson conspiracy.                             Second, Stephen Thompson,

a Nationwide Insurance Special Claims Representative, testified

that    he      conducted          a    recorded        interview      of     White    in   February

2010,       about      four    months           after    the    fire.         White    essentially

repeated to Thompson the statement he previously made to Adkins

speculating           that     a       tenant     may    have    set    the    fire,     and      White

omitted         any    mention         of   the    Kinders. 5          Like    Adkins,      Thompson


       5
       Thompson was sent to interview White about a separate
claim made by White under a Nationwide fire insurance policy for
another fire—one that damaged White’s personal residence on
(Continued)
                                                    16
testified that had White told him of the Kinders’ involvement,

he    would   have   notified   the    SIU    for    follow   up    with    law

enforcement.     White’s statement to Thompson was charged in Count

3—the accessory-after-the-fact charge.

      White renews the argument that he made throughout trial

that this evidence was insufficient to prove that he acted with

the intent to assist Kinder in avoiding apprehension.                      White

contends that his statement to Thompson was nothing more than a

“passing comment” to an insurance representative who was not

connected to law enforcement and had not indicated to White any

such connection existed.        Thus, White concludes that there is

nothing in evidence showing that he was aware any statement he

made incriminating Kinder would be passed along to the police.

The district court rejected White’s argument, pointing out that

in light of the evidence that Kinder committed arson at White’s

behest for the Nationwide insurance money, the jury could easily

infer that White was aware that preventing Kinder’s apprehension

was   in   his   personal   best   interest    and    that    his   interview

statement in fact did aid Kinder because Thompson would have




February 14, 2010.     During the interview, Thompson inquired
about White’s previous fire-loss claims and the subject of the
Van duplex fire arose.    White successfully moved in limine to
exclude any evidence of this February 2010 fire. Thus, the jury
was unaware of the purpose of Thompson’s interview and heard a
redacted recording of the interview.


                                      17
reported the matter to the Nationwide SIU.                            We agree with the

district court.

       The        dispute     concerns     only        the    third     element      of    an

accessory-after-the-fact            charge—whether            the    government     offered

proof       that      White     assisted      Kinder          for     the     purpose       of

“prevent[ing] [her] apprehension, trial, or punishment.”                               De La

Rosa, 171 F.3d at 221.              White does not dispute that there was

substantial evidence that Kinder participated in the commission

of the Van duplex arson and that White was aware of this offense

because he had commissioned the Kinders to commit it.                                   White

argues there is no evidence of the requisite intent to assist,

however, because he made his statement to an insurance agent,

not    a    law    enforcement     agent.         We    disagree.           Here,   all    the

evidence must show is that he acted “in order to prevent the

apprehension” of Kinder.             Id.     Based on the evidence, the jury

could make a couple of obvious common-sense inferences.                                First,

the jury could infer that White was well aware that helping

Kinder      avoid     detection    and     arrest       was    in    his    personal      best

interest—as          subsequently         demonstrated          by     Kinder’s         trial

testimony incriminating White.               Second, in light of the evidence

that       both    law      enforcement    and     the       insurance       company      were

interested in the origin of the fire and that common sense would

tell a person that an insurance adjuster who found that a fire

claim was really arson would turn that information over to law

                                            18
enforcement, it is a reasonable inference that White understood

it was to his benefit in avoiding apprehension to cast suspicion

on   the    tenants.       Indeed,      in    view   of     these   facts,   the   only

logical      purpose     for    White     to      attempt    misdirection     in      his

interview     with      Thompson   was       to   ensure    against   even   the   very

possibility that Kinder and then White himself would fall under

police scrutiny.

      Viewing the evidence in the light most favorable to the

government, we are satisfied that “any rational trier of fact

could      find   the     essential      elements      of    the    crime    beyond     a

reasonable doubt.”             United States v. Cone, 714 F.3d 197, 212

(4th Cir. 2013).           We conclude that White has not carried the

“heavy burden” that accompanies a sufficiency of the evidence

challenge, United States v. Foster, 507 F.3d 233, 245 (4th Cir.

2007), and we therefore affirm the district court’s denial of

the motion for a judgment of acquittal on Count 3. 6


      6
       After oral argument, the panel directed the parties to
submit supplemental briefs on whether it is permissible for
White to be convicted and sentenced for accessory after the fact
to an arson offense that he himself committed as a principal.
See United States v. Taylor, 322 F.3d 1209, 1212 (9th Cir. 2003)
(finding evidence sufficient to show violation of the “plain
language” of 18 U.S.C. § 3, but concluding that § 3 was
inapplicable given that defendant “was found guilty as a
principal to the crime”); see also State v. Jewell, 409 S.E.2d
757, 764 (N.C. App. 1991) (Wynn, J., dissenting) (“It stands to
reason that . . . a principal felon cannot be an accessory after
the fact to himself. . . .”).        But see United States v.
Triplett, 922 F.2d 1174, 1180 (5th Cir. 1991).    Although White
(Continued)
                                             19
                                              IV.

       White’s      final      contention           is    that      the     district            court

incorrectly        concluded       that       the    Van       duplex,      for     sentencing

purposes, was a “dwelling” under U.S.S.G. § 2K1.4, the relevant

sentencing provision for arson-related offenses.                             Under § 2K1.4,

if   the    Van    duplex    is     classified           as    a   “dwelling,”         the       base

offense level is 24, see U.S.S.G. § 2K1.4(a)(1)(B), but if the

duplex      is    categorized       as   “a    structure           other    than       .    .    .   a

dwelling,”        the   base       level      offense         is   20,     see     U.S.S.G.          §

2K1.4(a)(2)(B).         White argues that the Van duplex was no longer

a “dwelling” at the time of the fire because it was vacant.

This   alleged      error,     White       contends,          resulted      in    an       advisory

sentencing range of 51 to 63 months rather than the 33-to-41-

months range that would have applied if the district court had

not determined that the Van duplex was a “dwelling” under the

guideline.

       In    considering       a    sentencing           court’s     application            of    the

guidelines,        we   review     “legal      conclusions          de     novo    and      .    .   .

factual findings for clear error.”                       United States v. Layton, 564



was guilty of aiding and abetting, an aider and abettor is
considered a principal.    See Tarkington v. United States, 194
F.2d 63, 68 (4th Cir. 1952).      Having had the benefit of the
parties’ input on this issue, which was raised neither in
district court nor on appeal, we are satisfied that reversal is
not warranted under the plain error standard of review. We take
no position on whether any error occurred in the first place.


                                               20
F.3d 330, 334 (4th Cir. 2009).                         The term “dwelling” is not

defined in U.S.S.G. § 2K1.4 or the accompanying commentary.                                We

accord undefined guideline terms their “ordinary, contemporary

meaning.”     United States v. Chacon, 533 F.3d 250, 257 (4th Cir.

2008).     In ordinary terms, a “dwelling” is a “house or other

structure in which a person or persons live,” including “the

apartment or building . . . occupied by a family as a place of

residence.”        Black’s       Law   Dictionary         505   (6th     ed.   1990);   see

United States v. Smith, 354 F.3d 390, 397-98 (5th Cir. 2003)

(employing the Black’s Law Dictionary definition of “dwelling”

for purposes of U.S.S.G. § 2K1.4); see also United States v.

Ramirez, 708 F.3d 295, 302-03 (1st Cir. 2013) (using Black’s to

define   “dwelling”        for    purposes        of    U.S.S.G.     §   4B1.2);     United

States v. McClenton, 53 F.3d 584, 587 (3d Cir. 1995) (same).

The Van duplex clearly fell within the scope of the foregoing

definition and functioned as a “dwelling” for more than 10 years

before   it      burned    down.        White      does      not    suggest    otherwise.

Instead,    he    argues    that       the   duplex      lost      its   character    as    a

dwelling    once    the    tenants      vacated        the   premises.         See   United

States v. Jackson, 22 F.3d 583, 585 (5th Cir. 1994).                            He likens

his circumstances to those presented in Jackson, wherein the

Fifth Circuit determined that the defendant did not burglarize a

“dwelling” for purposes of U.S.S.G. § 4B1.2(1) by breaking into

a vacant house.            Jackson rejected “the government’s argument

                                             21
that the nature of the dwelling did not change by virtue of the

seven year vacancy” and noted that “whether 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.”          Id. (emphasis added).

      Nothing     of   the   kind   occurred      here,    however,   as    the    Van

duplex was vacant at most for a couple of weeks before the fire

was set.     There was absolutely no indication that the duplex had

ever functioned or would ever function as anything other than a

dwelling.        As the Fifth Circuit observed in concluding that a

three-month seasonal vacancy period did not remove a motel from

“dwelling” status under § 2K1.4,

      [t]here is . . . a marked difference between the
      seven-year abandonment of the building in Jackson and
      the   three-month  seasonal  vacancy  of  the  motel.
      Whatever the “point in time” at which a building’s
      core nature is altered, it was not reached in just
      three months, particularly in light of the fact that
      the motel would again be occupied by visitors in the
      near future.

Smith, 354 F.3d at 398.             We are likewise confident the brief

period   during     which    the    Van   duplex    was    completely      empty   of

tenants did not cause it to lose its essential character as a

dwelling, especially since, as previously mentioned, one of the

tenants was under no order of eviction and continued to maintain

personal property in her unit at the time of the fire.                             The

duplex, which still had power and was in a habitable condition,


                                          22
clearly had not been abandoned to the point that it could no

longer be considered a “dwelling.”              See United States v. Ingles,

445   F.3d   830,   840   (5th   Cir.   2006)     (concluding    that   “a    camp

house” that had been vacant for several months at the time of

the fire was still a “dwelling” under § 2K1.4 “in light of the

fact that at the time of the fire the structure was furnished as

a   functioning     residence”).        We   reject    White’s   argument     and

conclude     that   the   district      court    did   not   clearly    err    in

concluding the Van duplex was a “dwelling” within the meaning of

U.S.S.G. § 2K1.4. 7

                                        V.

      For the foregoing reasons, we affirm White’s convictions

and sentence in full.

                                                                        AFFIRMED




      7
       White’s Sixth Amendment challenge to the district court’s
application of a two-level obstruction of justice enhancement
under U.S.S.G. § 3C1.1 is clearly foreclosed by circuit
precedent. See, e.g., United States v. Blauvelt, 638 F.3d 281,
293 (4th Cir. 2011); United States v. Grubbs, 585 F.3d 793, 799
(4th Cir. 2009); United States v. Benkahla, 530 F.3d 300, 312
(4th Cir. 2008). Accordingly, we reject this claim.


                                        23
WYNN, Circuit Judge, dissenting in part:

     A person should not be held criminally liable both as a

principal and as an accessory after the fact to himself.                     Here,

Defendant was convicted of aiding and abetting arson, which the

law does not distinguish from principal liability for the arson.

Because I would hold that Defendant cannot also be convicted of

being     an   accessory       after   the    fact   for   the   same    arson,    I

respectfully dissent.



                                         I.

     “[P]rovisions of the Federal Criminal Code” make plain that

not only “‘whoever commits an offense’” but also whoever “‘aids,

abets, counsels, commands, induces, or procures its commission,

is a principal.’”         Tarkington v. United States, 194 F.2d 63, 68

(4th Cir. 1952) (quoting 18 U.S.C. § 2).               In other words, “[t]he

distinction between principals and accessories before the fact

has been abolished.”        Id.

     In    this   case,    a    jury   convicted     Defendant   of     aiding    and

abetting arson.      Defendant is, therefore, criminally liable as a

principal for the arson, i.e., as someone who “commit[ted] [the]

offense.”      Id. (internal quotation marks and citation omitted)

     Defendant was also charged with and convicted of being an

accessory after the fact.               Specifically, per 18 U.S.C. § 3,

“[w]hoever, knowing that an offense against the United States
has been committed, receives, relieves, comforts or assists the

offender in order to hinder or prevent his apprehension, trial

or punishment, is an accessory after the fact.”

       In    this    case,        Defendant       misrepresented                to    an    insurance

agent that one of his tenants may have committed the arson in an

attempt “to ensure against even the very possibility that Kinder

and then White himself would fall under police scrutiny.”                                          Ante

at 19.

       In    my     view,     the        law    does     not       allow        Defendant       to    be

responsible       as     a    principal         for     the       arson    and       for    assisting

himself after the fact.                   As the Ninth Circuit has explained, a

defendant      “should        not    be    punished          as    an     accessory        after     the

fact, even though he assisted in preventing his own apprehension

and    the   apprehension           of    his    co-offender.”               United        States     v.

Taylor, 322 F.3d 1209, 1212 (9th Cir. 2003).                                     This is because

“[u]nder 18 U.S.C. § 3, the offense of accessory after the fact

only    occurs      when      a     person      assists           an    offender;         the   person

committing        accessory         after       the     fact       is     not    the       ‘offender’

himself.       To interpret § 3 otherwise would lead to the absurd

result of subjecting every principal to an accessory after the

fact charge.”          Id.; see also State v. Jewell, 409 S.E.2d 757,

764    (N.C.      App.       1991)       (Wynn,        J.,    dissenting             in    part)     (“A

participant in a felony may no more be an accessory after the

fact than one who commits larceny may be guilty of receiving the

                                                  25
goods which he himself had stolen. . . . It follows that since

an aider and abettor to a felony is treated the same as the

principal that committed the felony offense, he too cannot be an

accessory    after    the   fact     to    that   same   offense.”    (internal

quotation marks and citation omitted)).

       Such reasoning is supported by the fact that 18 U.S.C. § 3

is “based upon” Skelly v. United States, 76 F.2d 483 (10th Cir.

1935).    2 Fed. Jury Prac. & Instr. § 22:02 (6th ed. 2014); see

also 18 U.S.C. § 3 (West ann.) Revision Notes & Leg. Reports

(same).     In Skelly, the Tenth Circuit defined an accessory as

“he who is not the chief in the offense, nor present at its

performance, but is some way concerned therein, either before or

after the fact committed” and as “one who participates in a

felony too remotely to be deemed to principal.”                 76 F.2d at 487

(internal quotation marks and citations omitted).                    It defined

“accessory after the fact” as “one who, knowing a felony to have

been   committed     by   another,    receives,     relieves,    comforts,   or

assists the felon in order to hinder the felon’s apprehension,

trial, or punishment.”       Id.

       I appreciate that Defendant failed to preserve this issue

and that we view it only through the plain error lens.                     That

limits us to correcting those errors that are “plain” and that

“affect substantial rights.”              United States v. Olano, 507 U.S.

725, 732 (1993) (internal quotation marks and citation omitted).

                                          26
Further, we generally refrain from intervening where the error

does    not   seriously    impact    the   fairness   and   integrity    of    the

proceedings.     Id.

       While plain error is a high hurdle, I nevertheless conclude

that Defendant clears it here.               First, as a matter of law,

Defendant cannot be a principal offender and an accessory after

the fact to himself.         Therefore Defendant’s accessory after the

fact conviction constitutes clear legal error. *

       As for whether the error affected Defendant’s substantial

rights, “in most cases it means that the error must have been

prejudicial: It must have affected the outcome of the district

court proceedings.”          Olano, 507 U.S. at 734.           Here, without

question, it did.         If the law had been applied correctly in this

case,      Defendant   could   not    have    been    convicted   both    as     a

principal participant in the arson and as an accessory after the

fact.      In other words, the clear legal error directly affected

the outcome of the district court proceedings.

       In sum, I conclude that, as a matter of law, a defendant

cannot be convicted as a principal offender and as an accessory


       *
       The majority opinion cites United States v. Triplett, 922
F.2d 1174 (5th Cir. 1991), as going the other way on this issue.
While the Fifth Circuit undoubtedly allowed convictions for both
principal and accessory-after-the-fact liability to stand, its
opinion failed to acknowledge, let alone analyze, the conundrum
of allowing a principal to be convicted of acting as an
accessory after the fact to himself.


                                       27
after the fact.   Nevertheless, Defendant here was convicted of

both.   That constituted clear and prejudicial error that, in my

view, seriously detracts from the fairness of the proceedings.

Olano, 507 U.S. at 732.   Accordingly, I would vacate Defendant’s

accessory after the fact conviction and therefore respectfully

dissent.




                               28
