UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-7069

RALPH RAMEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-92-140, CA-97-412-2, CA-98-116-2)

Argued: October 29, 1999

Decided: June 20, 2000

Before WILKINSON, Chief Judge, and LUTTIG and
MICHAEL, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Catherine L. Crisham, Student Counsel, Appellate Litiga-
tion Program, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Michael Lee Keller, Assistant
United States Attorney, Charleston, West Virginia, for Appellee. ON
BRIEF: Steven H. Goldblatt, Director, Catherine E. Lhamon, Super-
vising Attorney, Joseph S. Hall, Student Counsel, Jeremy G. Suiter,
Student Counsel, Appellate Litigation Program, GEORGETOWN
UNIVERSITY LAW CENTER, Washington, D.C., for Appellant.
Rebecca A. Betts, United States Attorney, Charleston, West Virginia,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Ralph Ramey was convicted in district court of various federal
offenses arising out of his arson of a mobile home. He filed a motion
to vacate his sentence pursuant to 22 U.S.C. § 2255. The district court
denied his motion in part and granted it in part. For the reasons that
follow, we vacate the district court's order and remand with instruc-
tions.

I.

In 1990, Ramey and James "Bo" Payne burned down a mobile
home that had been stationary for sixteen years and that was occupied
by an interracial couple. In 1992, a jury convicted both men on four
counts related to the arson: (1) conspiracy to deprive the couple of
their civil rights, in violation of 18 U.S.C. § 241; (2) willful interfer-
ence with fair housing rights, in violation of 42 U.S.C. § 3631(a); (3)
use of fire in the commission of a felony, in violation of 18 U.S.C.
§ 844(h)(1); and (4) arson of a building used in an activity affecting
commerce, in violation of 18 U.S.C. § 844(i). 1
_________________________________________________________________
1 Section 844(i) reads:

          Whoever maliciously damages or destroys, or attempts to dam-
          age 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 for-
          eign commerce shall be imprisoned for not less than 5 years and
          not more than 20 years, fined under this title, or both . . . .

18 U.S.C. § 844(i) (emphases added).

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Ramey was sentenced to 108 months on counts one and four, to
twelve months to be served concurrently on count two, and to a sixty-
month consecutive sentence on the third count, along with three years
of supervised release. Ramey was also made jointly and severally lia-
ble with Payne for restitution in the amount of $10,766.97.

On appeal, Ramey argued that the application of 18 U.S.C. § 844(i)
to the arson of a private residence was not permitted under the Com-
merce Clause. See United States v. Ramey , 24 F.3d 602 (4th Cir.
1994) ("Ramey I"). This court rejected Ramey's argument and held
that the residence was protected under section 844(i) because it
received electricity from an interstate power grid. See id. at 607
("Though the trailer doubtless consumed but a pittance of energy
from the power company's grid, its consumption, combined with that
of all similarly situated buildings, has a most definite effect on inter-
state commerce. The class of activities not only`affects' commerce,
but is in fact the raison d'etre of an interstate business. Congress has
the power to protect this commerce from destruction by fire.").

After this court's decision in Ramey I, the Supreme Court decided
United States v. Lopez, 514 U.S. 549 (1995), in which it held that the
Gun-Free School Zones Act of 1990 was an unconstitutional exercise
of Congress' power under the Commerce Clause. Subsequent to its
decision in Lopez, the Supreme Court denied Ramey's petition for
writ of certiorari. See Ramey v. United States, 514 U.S. 1103 (1995).
But see id. (Justice Scalia voting to grant the petition, vacate the judg-
ment and remand the case to this court for further consideration in
light of Lopez).

In 1997, Ramey filed a motion in federal district court to vacate his
sentence pursuant to 28 U.S.C. § 2255. In Ramey's amended motion
he argued first, that in light of Lopez, section 844(i) could not be con-
stitutionally applied to the arson of a private dwelling. Second, he
argued that the district court improperly delegated to the Bureau of
Prisons and Probation Office its authority to schedule Ramey's resti-
tution payments.2 On Ramey's Lopez claim, the district court held that
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2 Ramey filed his original section 2255 motion on April 22, 1997. In
that motion, he also claimed that his trial counsel was ineffective and that

                     3
because Lopez did not address the statute at issue in Ramey's case,
Ramey's case was still governed by Ramey I. On his restitution claim,
however, the district court found that the authority to set his restitu-
tion payments had been improperly delegated to the Bureau of Pris-
ons, and therefore the court modified the sentence to include a
restitution schedule.

We granted a certificate of appealability to Ramey, and he now
appeals.

II.

Ramey argues that the district court erred when it held that Lopez
was not applicable to his arson conviction under 18 U.S.C. § 844(i),
and therefore did not grant him relief under Davis v. United States,
417 U.S. 333 (1974).

In Davis, Davis claimed that an intervening change in law, decided
subsequent to his appeal, rendered his conviction and punishment
invalid because it was "for an act that the law does not make crimi-
nal." Id. at 346. Davis had been convicted under a federal statute for
failing to report for military induction as ordered, and the Ninth Cir-
cuit upheld the conviction. While Davis' petition for writ of certiorari
_________________________________________________________________
the evidence at trial was insufficient to support his convictions. The dis-
trict court adopted the federal magistrate's report and recommendation
and denied Ramey's motion. Ramey then appealed the district court's
denial, and this court vacated and remanded the district court's order,
because the district court had failed to consider Ramey's objections to
the magistrate's report.

On remand, the district court granted Ramey's motion to amend his
section 2255 motion. In the amended motion, Ramey raised the restitu-
tion claim and re-raised the Lopez claim, but he did not re-raise his inef-
fective assistance claim. Ramey contends in this appeal, however, that he
did not intend to waive his ineffective assistance claim by not including
it in his amended section 2255 motion. Assuming that Ramey did pre-
serve his ineffective assistance claim, we conclude that because he has
failed to articulate any specific acts of trial counsel that fell below an
objective standard of reasonableness, his claim is without merit.

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was pending, the Ninth Circuit decided in a different but factually
identical case that because of an intervening Supreme Court case, the
conviction could not be upheld. After Davis' certiorari petition was
denied, he brought a section 2255 motion in which he asserted that
the latter Ninth Circuit decision was an intervening change in law
such that his conviction should be set aside. The Supreme Court held
that Davis' claim was cognizable in a section 2255 proceeding
because "conviction and punishment . . . for an act that the law does
not make criminal" "`inherently results in a complete miscarriage of
justice' and `present(s) exceptional circumstances' that justify collat-
eral relief under § 2255."3 See id. at 346-47.

Ramey's contention on appeal is that Lopez represented an inter-
vening change in law such that his conviction under section 844(i)
was for an act -- burning down a private dwelling-- that the law
does not criminalize. That is, Ramey argues that the arson of a private
dwelling cannot meet the jurisdiction nexus requirement of Lopez
because that act does not "substantially affect" interstate commerce.
Therefore, Ramey argues that under Lopez, section 844(i) cannot law-
fully be applied to his conduct, and that, accordingly, under Davis, he
is entitled to collateral relief from his conviction under that statute.

After the case was submitted to this court, the Supreme Court
granted the petition for writ of certiorari in United States v. Jones,
178 F.3d 479 (7th Cir. 1999), on the question whether section 844(i)
reaches the arson of a private dwelling, see Jones v. United States,
_________________________________________________________________
3 Although Ramey's section 2255 motion is governed by the AEDPA
amendments, the relevant language of section 2255 has not changed
since the Supreme Court's decision in Davis. The Supreme Court relied
on that portion of section 2255 which reads:

          A prisoner in custody under sentence of a court established by
          Act of Congress claiming the right to be released upon the
          ground that the sentence was imposed in violation of the Consti-
          tution or laws of the United States, or that the court was without
          jurisdiction to impose such a sentence, or that the sentence was
          in excess of the maximum authorized by law, or is otherwise
          subject to collateral attack, may move the court which imposed
          the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255 (emphases added), quoted in Davis, 417 U.S. at 340.

                     5
120 S. Ct. 494 (1999). The Supreme Court has now held that "an
owner-occupied private residence not used for any commercial pur-
pose" is not property "used in" interstate commerce, and that therefore
section 844(i) does not reach such a residence. See Jones v. United
States, 2000 WL 645885, at *4-*5 (U.S. May 22). The Court specifi-
cally rejected the argument that, because the home that Jones burned
down received natural gas from out-of-state sources, the home was
"used in . . . an activity affecting . . . commerce." Id. at *4.

Because we conclude that the Supreme Court's decision in Jones,
that section 844(i) does not reach an owner-occupied private resi-
dence, entitles Ramey to relief, we do not address the question
whether Lopez was an intervening change in law under Davis. That
is, Jones itself is an intervening change in law that confirms that
Ramey's conviction and punishment is for an act that section 844(i)
does not make illegal. The mobile home that Ramey burned down
was only connected to interstate commerce through the owners' use
of electricity from an interstate power grid. See Ramey I, 24 F.3d at
607. We conclude that the use of electricity from an interstate power
grid, like the use of gas from out-of-state sources in Jones' case, does
not transform an owner-occupied private dwelling into one used in an
activity affecting interstate commerce. Therefore, because Ramey's
conduct is not prohibited by section 844(i), his conviction and punish-
ment under that section resulted in a fundamental miscarriage of jus-
tice and presents an exceptional circumstance justifying collateral
relief under 28 U.S.C. § 2255.

III.

Ramey also argues that, although the district court correctly held
that the delegation of authority to the Bureau of Prisons to set his res-
titution schedule was improper, the district court erred when it modi-
fied his restitution schedule without making the required findings for
each factor set forth in 18 U.S.C. § 3664(a). Section 3664(a), as it
read at the time of Ramey's conviction, directed that:

          [t]he court, in determining whether to order restitution . . .
          and the amount of such restitution, shall consider the
          amount of the loss sustained by any victim as a result of the
          offense, the financial resources of the defendant, the finan-

                     6
          cial needs and earning ability of the defendant and the
          defendant's dependents, and such other factors as the court
          deems appropriate.

18 U.S.C. § 3664(a) (emphasis added). In United States v. Blake, 81
F.3d 498 (4th Cir. 1996), we explained that the district court must
make findings on each factor in that section:

          This court has repeatedly held that in order to ensure effec-
          tive appellate review of restitution orders, sentencing courts
          must make explicit findings of fact on each of the factors set
          forth in 18 U.S.C. § 3664(a) . . . . Such findings must tie the
          amount and type of restitution ordered to the financial
          resources, financial needs, and earning ability of the defen-
          dant.

Id. at 505 (citations omitted). The district court must also determine
whether the defendant can fairly comply with a restitution order. See
id. at 505.

Here, the district court failed to indicate on what factors it based
its determination of the restitution schedule or whether it found that
Ramey could comply with the schedule. J.A. 263-64. Because the dis-
trict court did not make the required findings necessary for appellate
review of the restitution schedule, we remand with instructions for the
district court to make such findings.

CONCLUSION

Because Ramey was convicted and punished for an act that section
844(i) does not criminalize, we vacate the judgment of the district
court and remand with instructions for the district court to set aside
Ramey's conviction under section 844(i) and resentence him accord-
ingly. We also vacate the district court's restitution schedule and
remand with instructions for the court to make the findings required
under 18 U.S.C. § 3664(a) to support Ramey's restitution schedule.

VACATED AND REMANDED

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