                                   UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                      No. 16-4299


UNITED STATES OF AMERICA,

                    Plaintiff – Appellant,

             v.

JAMES WILLIAM HILL, III,

                    Defendant – Appellee.



Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. John A. Gibney, Jr., District Judge. (3:16-cr-00009-JAG-1)


Argued: January 26, 2017                                     Decided: August 18, 2017


Before SHEDD, AGEE, and WYNN, Circuit Judges.


Reversed and remanded by unpublished opinion. Judge Shedd wrote the opinion, in
which Judge Agee joined. Judge Wynn wrote an opinion dissenting from the basis for
the judgment.


ARGUED: Vikram Swaruup, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant. Elizabeth W. Hanes, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Richmond, Virginia, for Appellee. ON BRIEF: Vanita Gupta,
Principal Deputy Assistant Attorney General, Thomas E. Chandler, Civil Rights Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente,
United States Attorney, Alexandria, Virginia, S. David Schiller, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellant. Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia, Mary E.
Maguire, Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                            2
SHEDD, Circuit Judge:

       James Hill, III was working at the Amazon Fulfillment Center in Chester,

Virginia, when he allegedly assaulted C.T., a fellow employee, because of C.T.’s actual

or perceived sexual orientation. Consequently, the United States indicted Hill for

violating 18 U.S.C. § 249(a)(2). The district court dismissed the indictment, finding §

249(a)(2) unconstitutional as applied to Hill. For the following reasons, we reverse and

remand.

                                              I.

       The indictment alleges that, on or about May 22, 2015, Hill willfully caused

bodily injury to C.T. because of C.T.’s actual and perceived sexual orientation in

violation of § 249(a)(2). Additionally, the indictment charges that “in connection with the

offense, . . . Hill . . . interfered with commercial and other economic activity in which

C.T. was engaged at the time of the conduct, and which offense otherwise affected

interstate and foreign commerce.” J.A. 5. 1

       Hill moved to dismiss the indictment, arguing that § 249(a)(2) is unconstitutional,

both facially and as applied, as an invalid exercise of Congress’ power under the

Commerce Clause. In deciding the motion, the district court considered facts provided by

the parties that were not included in the indictment. Specifically, the court considered

asserted facts relating to the government’s allegation that the assault affected interstate

       1
          Section 249(a)(2) contains a jurisdictional element, which requires the
government to establish an appropriate and sufficient connection to interstate commerce
as an element of the offense.


                                               3
commerce. Ultimately, the court dismissed the indictment and concluded that § 249(a)(2)

exceeds Congress’ legislative power as applied to Hill. 2

                                             II.

       We start by recognizing two important presumptions. First, although the district

court considered the proffered facts as true in deciding Hill’s pretrial motion, every

defendant comes into court presumed to be innocent. Taylor v. Kentucky, 436 U.S. 478,

483 (1978). Additionally, every statute passed by Congress is presumed to be

constitutional. United States v. Morrison, 529 U.S. 598, 607 (2000).

       With these presumptions in mind, we review de novo the district court’s dismissal

of the indictment. United States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002). “[A]

challenge to the sufficiency of the indictment . . . is ordinarily limited to the allegations

contained in the indictment,” and a court accepts the allegations as true. United States v.

Engle, 676 F.3d 405, 415 (4th Cir. 2012). Under Rule 12, “[a] district court may dismiss

an indictment . . . where there is an infirmity of law in the prosecution; a court may not

dismiss an indictment, however, on a determination of facts that should have been

developed at trial.” Id. (citation and internal quotation marks omitted).

       Although the parties have presented and briefed novel and complex issues of

constitutional law, this appeal is more appropriately resolved on a threshold issue. On its

       2
         Because the district court found the statute unconstitutional as applied, it did not
rule on the facial challenge. See Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S.
469, 485 (1989) (finding that courts should normally decide as-applied challenges first).
The parties have not briefed the issue of whether the statute is facially valid. Therefore,
we also decline to decide this issue.


                                              4
face, the indictment is legally sufficient and does not present an unconstitutional exercise

of Congressional power. In an attempt to satisfy § 249(a)(2)’s jurisdictional element, the

indictment specifically alleges that Hill’s conduct had an effect on interstate commerce.

Because this is an as-applied challenge, whether Hill’s conduct sufficiently affects

interstate commerce as to satisfy the constitutional limitations placed on Congress’

Commerce Clause power may well depend on a consideration of facts, and because the

facts proffered here may or may not be developed at trial, it is premature to determine the

constitutional issues. 3 See Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 172

(4th Cir. 2009) (en banc) (An as-applied challenge is “based on a developed factual

record and the application of a statute to a specific person[.]”); see also United States v.

Terry, 257 F.3d 366, 373 (4th Cir. 2001) (King, J., concurring) (“The interstate

commerce element of [18 U.S.C.] § 844(i) requires proof of a fact, and, in the ordinary

course, it is subject to our review of the Government’s evidence in accordance with” a

motion for a judgment of acquittal, not a pretrial motion.); United States v. Matzkin, 14

F.3d 1014, 1019 (4th Cir. 1994) (“An indictment that tracks the statutory language is

ordinarily valid.” (quoting United States v. Fogel, 901 F.2d 23, 25 (4th Cir. 1990))).

Importantly, the complex constitutional issues presented may be avoided in this case, for




       3
         At this stage, it is sufficient for the government to allege that the jurisdictional
element is satisfied. Whether the government presents facts within the constitutional
limitations of Congress’ commerce power can only be answered after a proper factual
context is established, e.g., at trial or in a formal stipulation, for such a determination.


                                             5
instance, should the prosecution fail to result in a conviction. 4 See Harmon v. Brucker,

355 U.S. 579, 581 (1958) (Courts have a “duty to avoid deciding constitutional questions

presented unless essential to proper disposition of a case.”); see also Bell Atl. Maryland,

Inc. v. Prince George’s Cty., Maryland, 212 F.3d 863, 866 (4th Cir. 2000) (determining

that the district court committed reversible error by deciding constitutional questions in

advance of considering state law questions that may dispose of the case).

       We acknowledge that a court may look beyond the indictment where “the

government does not dispute the ability of the court to reach the motion and proffers,

stipulates, or otherwise does not dispute the pertinent facts.” United States v. Weaver, 659

F.3d 353, 355 n.* (4th Cir. 2011). However, in Weaver the issue was one of statutory

interpretation and was “purely legal.” Id. Because the issue before this Court is an as-

applied constitutional challenge, it involves questions of law and fact, and it is not

prudent at this point to consider the extraneous facts, most of which were proffered by the

government in an attempt to strengthen its case. 5 This determination is reinforced by the


       4
         The government also presents an argument on appeal that was not directly before
the district court: whether § 249(a)(2) is constitutional as applied under the Commerce
Clause as a regulation of workplace conduct and discrimination. We believe the district
court should consider this issue in the first instance.
       5
         Additionally, the proffered facts fail to indicate the precise effect on interstate
commerce that Hill’s actions may or may not have had. For example, the facts relating to
the items not shipped because of the assault are based on Amazon benchmarks, not the
specific facts of this case. See J.A. 37. These factual uncertainties must be resolved
before a court can properly rule on Hill’s as-applied constitutional challenge, as the
challenge involves determining whether Hill’s conduct substantially affected interstate
commerce.


                                             6
presumptions of innocence and constitutionality. Facts outside of an indictment should

not be used to conclusively decide whether an element of a criminal offense is satisfied

during a pretrial motion, and a Congressional statute should not be overturned on an

incomplete record. Thus, we conclude that the district court erred when it dismissed the

indictment.

                                          III.

      Accordingly, we reverse and remand with directions to reinstate the indictment.



                                                        REVERSED AND REMANDED




                                           7
WYNN, Circuit Judge, dissenting from the basis for the judgment:

       Defendant James Hill, III physically assaulted a coworker preparing packages for

interstate shipment because Defendant believed him to be homosexual. Recognizing that

the Virginia hate crime statute does not extend to cases involving sexual orientation, the

Commonwealth’s Attorney’s Office in Chesterfield County referred this case to the U.S.

Attorney’s Office for the Eastern District of Virginia. Following the Attorney General’s

certification that prosecuting Defendant at the federal level is in the public interest and is

necessary to secure substantial justice, the government indicted Defendant under the

federal Hate Crimes Prevention Act of 2009 (the “Hate Crimes Act”), 18 U.S.C.

§ 249(a)(2). The district court dismissed the indictment on grounds that the Hate Crimes

Act, as applied to Defendant’s conduct, exceeded Congress’s authority under the

Commerce Clause.

       On review to this Court, the majority opinion now ignores the district court’s basis

for dismissing the indictment and instead concludes that, because the government’s

indictment sets forth the charged offense in the language of the statute, it satisfies the

specificity requirement imposed by Fifth and Sixth Amendments. But that conclusion

answers a question that Defendant never raised and the district court, unsurprisingly,

never addressed. In so doing, the majority opinion elides the question that Defendant and

the government properly placed before the district court and this Court: Whether

Congress can enact a statute, pursuant to its authority to regulate interstate commerce,

proscribing the physical assault of a victim whose job involves packing products for

interstate sale and shipment and who is doing that job at the time of the assault?

                                              8
       If that important question is properly answered, as it should be, then it must be

concluded that such a statute easily falls under Congress’s broad authority to regulate

interstate commerce. The Supreme Court has consistently held that Congress has the

authority to regulate criminal conduct that interferes with ongoing commercial activity

subject to congressional regulation. See, e.g., Taylor v. United States, 136 S. Ct. 2074

(2016). And the Commerce Clause assuredly empowers Congress to regulate the sale

and shipment of goods across state lines. See U.S. Const. art. I, § 8, cl. 3; United States v.

Lopez, 514 U.S. 549, 558 (1995).          Therefore, Congress may proscribe conduct—

including violent assaults on individuals engaged in interstate commercial activity—that

interferes with that activity.

       Cavalierly, the majority ducks the only issue in this case and instead decides an

issue that was neither presented by the parties nor addressed by the district court. The

only issue in this case is one of first impression and of great importance—it was

addressed by the district court and has now been placed squarely before us by the parties.

We should not, on our own volition, create a basis for avoiding it.

                                              I.

       The facts relevant to whether the government’s prosecution of Defendant complies

with the Commerce Clause are not in dispute. At the time of the assault, Defendant and

the victim—referred to by the parties as “C.T.”—were coworkers at an Amazon

Fulfillment Center in Chester, Virginia.      Defendant worked as a “re-binner” at the

Amazon facility and was responsible for “moving items from various bins on [a]

conveyor belt to [a] cubbyhole for aggregation prior to packaging.” J.A. 37. C.T. was

                                              9
employed as a “packer,” which required him to take items from the cubbyholes and load

them into boxes for shipment.

       At approximately 7:00 p.m. on May 22, 2015, C.T. was retrieving items to load

into a box when Defendant approached C.T. from behind and—without provocation or

warning—repeatedly punched him in the face. As a result of the attack, C.T. sustained

numerous injuries, including a bloody nose, abrasions on his nose and cheeks, and

lacerations and bruising around his left eye. Following the incident, neither Defendant

nor C.T. returned to their work stations for the remainder of their ten-hour shifts. Their

absences affected more than 5,500 items, which were either not shipped or not “re-

binned” during that time.

       Later that evening, Defendant provided a statement to the Amazon Human

Resources and Loss Prevention staff before agreeing to a voluntary interview by the

Chesterfield County Police Department. In each instance, Defendant explained that he

“felt disrespected by C.T. because C.T. was a homosexual; that he does not like

homosexuals; and that C.T. deserved to be punched because he was a homosexual.” J.A.

36. Defendant offered no other explanation for the assault.

       About six months after the Attorney General certified that prosecuting Defendant

at the federal level “is in the public interest and is necessary to secure substantial justice,”

J.A. 33, a federal grand jury returned the one-count indictment now before us. The

indictment alleges that Defendant physically assaulted C.T. because of C.T.’s actual or

perceived sexual orientation. The indictment further alleges that, in doing so, Defendant

“interfered with commercial and other economic activity in which C.T. was engaged at

                                              10
the time of the conduct” and that the assault “otherwise affected interstate and foreign

commerce.” J.A. 5.

      Defendant moved to dismiss the indictment on several grounds, including that the

Hate Crimes Act, as applied to his conduct, exceeded Congress’s authority under the

Commerce Clause.      The district court agreed with Defendant’s as-applied challenge

under the Commerce Clause and dismissed the indictment. United States v. Hill, 182 F.

Supp. 3d 546, 555–56 (E.D. Va. 2016). The government timely appealed.

                                           II.

      Before analyzing whether Defendant’s prosecution is permissible under the

Commerce Clause, it is first necessary to dispose of the majority opinion’s contention

that addressing that question prior to trial would improperly infringe upon Defendant’s

presumption of innocence and right to have every element of the charged offense found

beyond a reasonable doubt by an appropriate factfinder. 1 See ante at 6–7.

      It is a fundamental precept of our criminal justice system that the accused enjoys a

presumption of innocence at all stages of the government’s prosecution.         Estelle v.

Williams, 425 U.S. 501, 503 (1976). Therefore, we may not, under the auspices of

      1
         Notably, the government has not argued that the district court erred in reaching
the merits of Defendant’s motion to dismiss the indictment on grounds that doing so
would infringe upon Defendant’s Fifth and Sixth Amendment rights. Generally, we may
not reverse a district court’s judgment based on an argument not raised by an appellant,
except when failing to do so would result in a “miscarriage of justice.” A Helping Hand,
LLC v. Baltimore Cty., Md., 515 F.3d 356, 369 (4th Cir. 2008) (“It is a well settled rule
that contentions not raised in the argument section of the opening brief are abandoned.”
(internal quotation and alterations omitted)). No miscarriage of justice results from
declining to revive Defendant’s prosecution based on an argument not raised by the
government, nor has the government argued as much.

                                           11
disposing of a pretrial motion to dismiss an indictment, resolve factual disputes that must

instead be decided at trial. See United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012).

Likewise, the Supreme Court has long made clear that the Constitution provides that a

criminal defendant may be convicted only if every element of a charged offense is found

beyond a reasonable doubt by a proper factfinder. See United States v. Gaudin, 515 U.S.

506, 522–23 (1995); see also United States v. Ramirez-Castillo, 748 F.3d 205, 212–13

(4th Cir. 2014) (relying on Gaudin and explaining that the jury’s role is to determine the

facts as to each element and apply the law as instructed by the judge to those facts).

       But resolving the only issue properly before us—whether the government’s

prosecution of Defendant complies with the Commerce Clause—does not tread upon

Defendant’s constitutional rights. To be sure, we must closely scrutinize any judicial

decision that has the potential to infringe on a criminal defendant’s rights under the

Constitution.   Among those rights, however, Defendant—like any other criminal

defendant—has a right to defend the charges against him in the manner he sees fit. Cf.

Faretta v. California, 422 U.S. 806, 818–21 (1975) (describing the constitutional

foundations of a criminal defendant’s right to self-representation); see also Indiana v.

Edwards, 554 U.S. 164, 184 (2008) (Scalia, J., dissenting) (“What the Constitution

requires is that a defendant be given the right to challenge the State’s case against him

using the arguments he sees fit.” (emphasis in original)). Here, rather than subjecting

himself to the time and expense of trial (or, instead, pleading guilty and forgoing the very

rights the majority seeks to preserve), Defendant elected to lodge a pretrial challenge to

his prosecution based on the undisputed facts giving rise to his indictment.

                                             12
       Significantly, Federal Rule of Criminal Procedure 12(b)(1) provides that a

defendant “may raise by pretrial motion any defense, objection, or request that the court

can determine without a trial on the merits.” Under Rule 12(b)(1), “a district court may

consider a pretrial motion to dismiss an indictment where the government does not

dispute the ability of the court to reach the motion and proffers, stipulates, or otherwise

does not dispute the pertinent facts.” United States v. Weaver, 659 F.3d 353, 355 n.* (4th

Cir. 2011) (interpreting a previous version of Rule 12(b)(1), which has since been

reorganized without substantive modification). Just the same, this Court and other courts

routinely decide constitutional challenges to the application of criminal statutes raised in

pretrial motions to dismiss an indictment. See, e.g., United States v. Nash, 627 F.3d 693,

696–97 (8th Cir. 2010); United States v. Terry, 257 F.3d 366, 367–68 (4th Cir. 2001);

United States v. Wilks, 58 F.3d 1518, 1519–22 (10th Cir. 1995); see also 42 C.J.S.

Indictments § 237 (2017) (“Typically, constitutional challenges to the charging statute

can be raised during pretrial motions, specifically, in a motion to dismiss the

indictment . . . .”).

       Here, in moving to dismiss the indictment, Defendant recounted the undisputed

facts giving rise to the charged offense and argued that the Hate Crimes Act “is

unconstitutional as applied to [those] undisputed facts.” J.A. 23. The government did not

dispute the district court’s authority to resolve Defendant’s motion, and the relevant facts

proffered by the government in its response to the motion to dismiss the indictment

mirror those recounted in Defendant’s motion. In accordance with the parties’ filings, the

district court found that “[t]he parties do not dispute the facts material to the court’s

                                            13
decision on the constitutionality of the [Hate Crimes Act] as applied to Hill,” and

therefore concluded that Defendant’s motion to dismiss was procedurally appropriate

under Rule 12(b)(1). See Hill, 182 F. Supp. 3d at 548 n.1. We have held that a district

court may resolve a defendant’s motion to dismiss an indictment in precisely these

circumstances. Weaver, 659 F.3d at 355 & n.* (resolving pretrial motion to dismiss

indictment raising question of statutory interpretation). Frankly, “[t]here is no good

reason to force the court to incur the expense and delay of a trial that would inevitably

lead to the same outcome as its pretrial ruling.” Id. at 355 n.*.

       Nevertheless, the majority relies upon a concurring opinion’s assertion that, “in

the ordinary course,” the question of whether a defendant’s alleged conduct satisfies a

statute’s interstate commerce element is better resolved in connection with a motion for a

judgment of acquittal, and not a pretrial motion to dismiss. See Terry, 257 F.3d at 373

(King, J., concurring); see also ante at 5. But a concurring opinion has no binding effect

on the law in this circuit for “[i]t goes without saying that the majority opinion, not the

gloss that the concurrence seeks to place thereon, is controlling.” Dababnah v. Keller-

Burnside, 208 F.3d 467, 471 n.3 (4th Cir. 2000); see Maryland v. Wilson, 519 U.S. 408,

412–13 (1997) (observing that a statement in a concurrence does not “constitute[] binding

precedent”). And even if we did accord concurring opinions some degree of precedential

value, that concurrence did not embrace an absolute bar on the resolution of as-applied

Commerce Clause challenges through a pretrial motion to dismiss an indictment. Rather,

it suggested that such challenges should be resolved “in the ordinary course” through a

motion for a judgment of acquittal. See Terry, 257 F.3d at 373 (King, J., concurring).

                                             14
       What the majority should rely upon is the Terry majority opinion, which

unquestionably is binding on this panel and unambiguously held that, in circumstances

substantively indistinguishable from the instant case, district courts should resolve an as-

applied constitutional challenge raised in a motion to dismiss an indictment. Terry

involved an as-applied challenge to the federal arson statute, 18 U.S.C. § 844, by two

defendants charged with starting two fires in a North Carolina church. 257 F.3d at 367.

Like here, the defendants moved before trial to dismiss the government’s indictment on

the ground that application of the federal statute to their alleged conduct would exceed

Congress’s authority under the Commerce Clause. See id. And like here, the district

court convened a pretrial hearing to consider the defendants’ motion, at which the

government proffered additional evidence purporting to show a nexus between the church

and interstate commerce. Id. at 367–68. Also like here, the government did not dispute

the district court’s authority to resolve the defendants’ pretrial motion to dismiss the

indictment. See id.

       Contrary to the Terry concurring opinion, the Terry majority opinion addressed the

merits of the defendants’ Commerce Clause challenge. In reaching the merits, the Terry

majority opinion explained that when resolving an as-applied constitutional challenge

raised in a motion to dismiss an indictment, the proper course is to “assume that all facts

proffered by the government are true,” even when such facts are not set forth in the

indictment. See id. at 367 (emphasis added). To that end, in considering whether the

burned church demonstrated a sufficient relationship to interstate commerce to support a

federal prosecution, the Terry majority opinion relied on evidence proffered by the

                                            15
government in the pretrial hearing. See id. at 368–71. This evidence, which was not set

out in the underlying indictment, included allegations regarding the operation of a

daycare center on the church’s premises that was damaged in the fire, as well as specific

representations regarding the center’s fees, employment practices, and hours of operation.

See id. at 369–70. Taking these allegations as true, the Court held that the church

facilities were “actively employed in commercial activities,” such that the government

could pursue its federal charges against the defendants without running afoul of the

Constitution. See id. at 371.

       The district court’s resolution of Defendant’s as-applied Commerce Clause

challenge is therefore entirely consistent with the approach taken by this Court in Terry.

With this in mind, to resolve the instant appeal, we must consider whether, taking as true

all of the factual allegations proffered by the government before the district court, the

indictment states an offense under the Hate Crimes Act. See id. at 367–68.

                                           III.

       Having concluded that we are bound to consider the thrust of Defendant’s

constitutional challenge to his prosecution, I further conclude that the undisputed facts—

that Defendant assaulted C.T. at his place of employment while C.T. was packing boxes

for interstate shipment—establish a sufficient nexus between Defendant’s conduct and

interstate commerce to support a conviction under the Hate Crimes Act.

                                           A.

       It “is a well-worn yet ever-vital maxim that the Constitution creates a Federal

Government of enumerated powers.” United States v. Bollinger, 798 F.3d 201, 208 (4th

                                           16
Cir. 2015) (alteration and internal quotation marks omitted) (quoting Lopez, 514 U.S. at

552). Among these enumerated powers, the Commerce Clause permits Congress “[t]o

regulate Commerce with foreign Nations, and among the several States, and with the

Indian Tribes.” U.S. Const. art. I, § 8, cl. 3.

       Under the Supreme Court’s modern Commerce Clause jurisprudence, “Congress is

limited to regulating three broad categories of interstate activity: (1) ‘the use of the

channels of interstate commerce,’ (2) ‘the instrumentalities of interstate commerce, or

persons or things in interstate commerce,’ and (3) ‘activities that substantially affect

interstate commerce.’” Bollinger, 798 F.3d at 209 (quoting Lopez, 514 U.S. at 558–59).

In limiting federal authority to these categories, the Supreme Court has consistently

invoked themes of federalism and its view that “Congress’s interstate power must be

‘read carefully to avoid creating a general federal authority akin to the police power.’”

Id. at 211 (quoting Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2578 (2012)).

       Congress paid close attention to the scope of its authority under the Commerce

Clause when it enacted the Hate Crimes Act, which was designed to strengthen federal

efforts to combat violent hate crimes—crimes targeting victims based on certain

enumerated characteristics. National Defense Authorization Act for Fiscal Year 2010,

Pub. L. 111-84, §§ 4701–13, 123 Stat. 2190, 2835–44 (2009). The statute’s substantive

provisions are preceded by congressional findings regarding the prevalence and impact of

violent hate crimes throughout the country, as well as Congress’s desire to assist state and

local efforts to combat such violence. Id. § 4702. Distinguishing hate crimes from other

violent crimes—which, Congress emphasized, States continue to be responsible for

                                              17
prosecuting—Congress concluded that violent hate crimes “substantially affect[]

interstate commerce in many ways.” Id. § 4702(6). Among these effects, Congress

explained that:

       (A)    The movement of members of targeted groups is impeded, and
              members of such groups are forced to move across State lines to
              escape the incidence or risk of such violence.

       (B)    Members of targeted groups are prevented from purchasing goods
              and services, obtaining or sustaining employment, or participating in
              other commercial activity.

       (C)    Perpetrators cross State lines to commit such violence.

       (D)    Channels, facilities, and instrumentalities of interstate commerce are
              used to facilitate the commission of such violence.

       (E)    Such violence is committed using articles that have traveled in
              interstate commerce.

Id. As such, Congress concluded that “[f]ederal jurisdiction over certain violent crimes

motivated by bias enables Federal, State, and local authorities to work together as

partners in the investigation and prosecution of such crimes.” Id. § 4702(9).

       To achieve this state-federal collaboration, the Hate Crimes Act created a variety

of federal criminal offenses arising out of violent acts undertaken with animus towards

various actual or perceived personal characteristics of the victim. Most importantly, for

present purposes, the statute provides that any person who, under certain specified

circumstances, “willfully causes bodily injury to any person . . . because of the actual or

perceived religion, national origin, gender, sexual orientation, gender identity, or

disability of any person . . . shall be imprisoned not more than 10 years.” 18 U.S.C.

§ 249(a)(2)(A)(i). Such conduct may be prosecuted under the statute only where it, inter

                                            18
alia, “interferes with commercial or other economic activity in which the victim is

engaged at the time of the conduct” or “otherwise affects interstate or foreign

commerce.” Id. § 249(a)(2)(B)(iv).

       In adopting the Hate Crimes Act, Congress sought to “invoke the full scope of [its]

Commerce Clause power, and to ensure that hate crimes prosecutions brought under

[§ 249(a)(2) would] not be mired in constitutional litigation.” H.R. Rep. No. 111–86, at

15 (2009). Aware of the relevant authority addressing the extent of that power, the bill’s

authors sought to ensure that conduct criminalized under the statute would have “the

requisite connection to interstate commerce.” See id. (“To avoid constitutional concerns

arising from the decision in United States v. Lopez, 514 U.S. 549 (1995), the bill requires

that the Government prove beyond a reasonable doubt, as an element of the offense, a

nexus to interstate commerce in every prosecution brought under one of the newly

created categories of 18 U.S.C. 249(a)(2).”); see also id. (explaining that the interstate

commerce element was “drawn to comport with Supreme Court guidance in Lopez and

U.S. v. Morrison, 529 U.S. 598 (2000)”); id. (explaining that “[t]he interstate commerce

nexus required by the bill is analogous to that required in other Federal criminal statutes,”

such as the Church Arson Prevention Act of 1996, 18 U.S.C. § 247).

                                             B.

       Against this legal backdrop, the government contends that the district court erred

in holding that Defendant’s assault of C.T. lacked sufficient connection to interstate

commerce to support Defendant’s prosecution under the Hate Crimes Act. Specifically,

the government argues that the assault, which occurred while C.T. was actively working

                                             19
as an Amazon employee, “interfere[d] with commercial or other economic activity in

which [C.T. was] engaged at the time of the [assault],” 18 U.S.C. § 249(a)(2)(B)(iv)(I),

and, thus, Defendant is subject to prosecution consistent with Congress’s Commerce

Clause authority. 2

       Whether the Hate Crimes Act may be constitutionally applied to an unarmed

assault at a victim’s place of work appears to be an issue of first impression in this Circuit

or any other. See, e.g., United States v. Miller, 767 F.3d 585, 589, 602 (6th Cir. 2014)

(reversing Hate Crimes Act convictions due to erroneous jury instructions and declining

to consider as-applied challenge to prosecution for a series of assaults on Amish men);

United States v. Mason, 993 F. Supp. 2d 1308, 1317 (D. Or. 2014) (rejecting as-applied

challenge involving assault with a weapon, but noting that “it might be unconstitutional

to apply the [Hate Crimes Act] . . . if the weapon [the defendant] used had not traveled in

interstate or foreign commerce, or if he had not used any weapon at all”); United States v.

Jenkins, 909 F. Supp. 2d 758, 764, 773 (E.D. Ky. 2012) (concluding, albeit reluctantly,

that the Hate Crimes Act is constitutional as applied to defendants who kidnapped and

transported victim along federal highway).

       Despite this lack of precedential guidance, the parties agree that Defendant’s

prosecution is constitutional, if at all, as an effort to regulate “activities that substantially


       2
         Because I conclude that the undisputed facts are sufficient to establish that
Defendant’s conduct “interfere[d] with commercial or other economic activity in which
the victim is engaged at the time of the conduct,” I need not—and thus do not—reach the
question of whether Defendant’s conduct is susceptible to federal prosecution as
“otherwise affect[ing] interstate or foreign commerce.” 18 U.S.C. § 249(a)(2)(B)(iv).

                                               20
affect interstate commerce.”     Bollinger, 798 F.3d at 209 (internal quotation marks

omitted).   Before the district court and this Court, the government argued that, by

“interfering” with C.T.’s packaging and shipping of products, Defendant’s conduct

“substantially affect[ed] interstate commerce,” as that phrase has been interpreted in

decisions upholding prosecutions for robbery under the Hobbs Act, 18 U.S.C. § 1951(a),

and arson under 18 U.S.C. § 844(i). I agree.

       The Supreme Court addressed a Commerce Clause challenge to the Hobbs Act in

Taylor v. United States, 136 S. Ct. 2074 (2016). Similar to the Hate Crimes Act, the

Hobbs Act provides for federal penalties for robbery and extortion that “in any way or

degree obstructs, delays, or affects commerce or the movement of any article or

commodity in commerce.” 18 U.S.C. § 1951(a). Taylor involved the prosecution of a

defendant who attempted to steal marijuana and cash from two drug dealers. 136 S. Ct.

at 2078–79.      Upholding the defendant’s conviction, a near-unanimous majority

characterized its holding as “straightforward and dictated by [the Court’s] precedent.” Id.

at 2077.    Specifically, the Court explained that Congress’s recognized authority to

regulate purely intrastate production, possession, and sale of marijuana—due to the

aggregate effect of these activities on interstate commerce—compelled the conclusion

that Congress may likewise regulate conduct that affects such activities. See id. at 2080

(“In this case, the activity at issue, the sale of marijuana, is unquestionably an economic

activity. . . . It therefore follows as a simple matter of logic that a robber who affects or

attempts to affect even the intrastate sale of marijuana . . . affects or attempts to affect

commerce over which the United States has jurisdiction.”). Taylor therefore establishes

                                             21
that, pursuant to its power under the Commerce Clause, Congress may proscribe violent

conduct when such conduct interferes with or otherwise affects commerce over which

Congress has jurisdiction. See id. Importantly, Congress may regulate violent conduct

interfering with interstate commerce even when the conduct itself has a “minimal” effect

on such commerce. Id. at 2079, 2081.

       Much the same, the federal arson statute prohibits setting fire to “any . . . property

used in interstate or foreign commerce or in any activity affecting interstate or foreign

commerce.” 18 U.S.C. § 844(i). In Russell v. United States, 471 U.S. 858 (1985), the

Supreme Court unanimously held that the statute may be applied to prosecute a defendant

who set fire to a two-unit apartment building. 471 U.S. at 858–62. In reaching this

conclusion, the Court noted that the statute’s broad phrasing—covering any property used

in an activity affecting interstate commerce—was intended to “protect all business

property, as well as some additional property that might not fit that description.” Id. at

862. The rental of the property at issue in that case was “unquestionably” covered by the

statute, the Court explained, because “the local rental of an apartment unit is merely an

element of a much broader commercial market in rental properties[, and t]he

congressional power to regulate the class of activities that constitute the rental market for

real estate includes the power to regulate individual activity within that class.” Id. As in

Taylor, the Court thus indicated that Congress may regulate crime when such crime

interferes with or otherwise affects commerce subject to congressional regulation. See

United States v. Garcia, 768 F.3d 822, 829–30 (9th Cir. 2014).



                                             22
       After Lopez, and during the same term that the Supreme Court decided Morrison,

the Court again addressed the constitutional sweep of the federal arson statute in Jones v.

United States, 529 U.S. 848 (2000). There, the Supreme Court construed the statute to

permit the government to pursue a prosecution only where the defendant’s conduct

affects “property currently used in commerce or in an activity affecting commerce.” 529

U.S. at 859. In so doing, the Court recognized the potential constitutional concerns that

may have arisen had Congress sought to “render . . . traditionally local criminal

conduct . . . a matter for federal enforcement.” Id. at 858 (internal quotation marks

omitted). To ameliorate these concerns and ensure that prosecutions under the statute

involve conduct bearing a constitutionally adequate connection to interstate commerce,

the Court required the government to show that a subject building was used in commerce

or in an activity affecting commerce at the time of its destruction. Id. at 858–59. As in

Russell, the Court’s analysis makes plain that, where a defendant’s conduct directly

interferes with or otherwise affects commerce subject to congressional regulation, that

conduct may be federally regulated under the Commerce Clause. To wit, as noted, this

Court has since held that Section 844(i) was constitutional as applied to the prosecution

of defendants who set fire to a church that provided daycare services. See Terry, 257

F.3d at 369–71.

       I agree with the government that, under these precedents, Defendant’s charged

conduct is subject to congressional regulation under the Commerce Clause. In particular,

the parties do not dispute that Congress enjoys the authority to regulate the underlying

commercial activity C.T. was engaged in at the time of the assault (i.e., preparing goods

                                            23
for sale and shipment across state lines).      And taking the government’s proffered

evidence as true—as we must, see id. at 367—Defendant’s physical assault of C.T.

directly interfered with and thwarted the packaging, shipment, and sale of over 5,500

items across state lines. Under current Supreme Court precedent, it follows that Congress

has the authority to proscribe Defendant’s violent conduct.      That is precisely what

Congress did in enacting the Hate Crimes Act, thereby making it unlawful for a

defendant to inflict bodily injury in a manner that “interferes with commercial or other

economic activity in which the victim is engaged at the time of the conduct.” 18 U.S.C.

§ 249(a)(2)(B)(iv)(I).

       Seeking to distinguish the Hobbs Act and arson cases, Defendant argues that

robbery and arson are “economic endeavors” that have “a direct connection with

commerce separate from their jurisdictional elements.” Appellee’s Br. at 18–19. By

contrast, in Defendant’s view, the Hate Crimes Act “does not prohibit violence related to

an economic act, such as assaults done in order to further an economic interest,” and

therefore exceeds Congress’s authority under the Commerce Clause. Appellee’s Br. at

14.

       Defendant’s argument has some superficial appeal. See, e.g., United States v.

Walker, 657 F.3d 160, 179 (3d Cir. 2011) (“Although drawing the line between

‘economic’ and ‘non-economic’ activities may sometimes be difficult, property crimes

like robbery and extortion are—unlike . . . gender-motivated violence—indisputably

‘economic’ under our post-Lopez precedents.”).       However, the Supreme Court has

recognized that the economic or non-economic nature of proscribed conduct turns on

                                           24
whether the conduct can be shown to affect economic activity subject to congressional

regulation—and therefore interstate commerce—and not whether the perpetrator of the

conduct was motivated by economic interest. See, e.g., Jones, 529 U.S. at 854 (requiring

courts to consider the commercial function, if any, of destroyed property to determine

whether its destruction may be prosecuted under the federal arson statute).

      Indeed, we have consistently rejected the argument that a defendant must intend

for his criminal conduct to affect interstate commerce for such conduct to be susceptible

to congressional regulation under the Commerce Clause. See, e.g., United States v.

Williams, 342 F.3d 350, 354 (4th Cir. 2003) (holding that the Hobbs Act “does not

require proof that a defendant intended to affect commerce or that the effect on

commerce was certain; it is enough that such an effect was the natural, probable

consequence of the defendant’s actions”).        And this Court and other circuits have

concluded that federal arson statutes may be applied against defendants who set fire to

property used in interstate commerce, notwithstanding that such defendants were

motivated by purely personal reasons, and not any economic interest. See, e.g., United

States v. Ballinger, 395 F.3d 1218, 1221–23 (11th Cir. 2005) (en banc) (upholding

conviction of defendant, a self-proclaimed practicing “Luciferian,” who set fire to

numerous churches because of his “hostility toward organized Christianity”); United

States v. Cristobal, 293 F.3d 134, 137, 144–46 (4th Cir. 2002) (upholding federal arson

conviction where defendant targeted victims based on suspicions regarding wife’s

philandering and planted car bombs on vehicles driven by victims and owned by the

victims’ employers); United States v. Grassie, 237 F.3d 1199, 1205, 1211 (10th Cir.

                                            25
2001) (upholding conviction of defendant who set fire to truck used to haul fruits of

annual harvest, even though defendant set fire to truck because victim’s mother had

broken off relationship with defendant).

       In this sense, the distinction between purely economic property crimes and purely

non-economic violent crimes is not as clear as Defendant suggests. For example, we

have held that conduct that does not directly implicate commerce or property may be

viewed as economic when a connection between the conduct and interstate commerce is

evident. See, e.g., Gibbs v. Babbitt, 214 F.3d 483, 492 (4th Cir. 2000) (contrasting the

hunting of red wolves with “gender-motivated violence,” but holding that such hunting is

“in a meaningful sense economic activity” because wolves pose a threat to livestock and

are a draw for interstate tourism).      Along similar lines, although the Lopez Court

described mere firearm possession as “in no sense an economic activity that might,

through repetition elsewhere, substantially affect any sort of interstate commerce,” 514

U.S. at 567, we—along with every other circuit to have considered the issue—have

upheld federal statutes criminalizing such possession when the firearm in question has

moved in interstate commerce, see, e.g., United States v. Gallimore, 247 F.3d 134, 138

(4th Cir. 2001); see also United States v. Nathan, 202 F.3d 230, 234 (4th Cir. 2000)

(explaining that the jurisdictional element “requires a case-by-case inquiry into the

connection with commerce”). In light of these holdings, Defendant’s assertion that

“[p]unching someone in the face has nothing to do with commerce,” Appellee’s Br. at 11,

is inapposite. It is not the violent act itself that triggers Congress’s regulatory authority



                                             26
under the Commerce Clause, but the effect of that act on interstate commerce that renders

it susceptible to federal regulation. 3

       The firm distinction Defendant would have us draw between economic and non-

economic crimes would lead to any number of anomalous results. For example, under

the standard advanced by Defendant, the Commerce Clause would not permit federal

authorities to prosecute an individual who—like Defendant—attacked a coworker

actively engaged in the packing and shipment of a product across state lines. But, if the

shipped product was a firearm and the recipient sat on a park bench within 1,000 feet of a

public school while in possession of that firearm—be it the following day or seventeen

years later—the recipient’s conduct would have a sufficient effect on interstate commerce

to support the recipient’s conviction under the Commerce Clause. See United States v.

Crump, 120 F.3d 462, 466 n.2 (4th Cir. 1997); see also United States v. Roseby, 454 F.

       3
          Although Defendant does not dispute the government's estimate of the number of
packages impacted by the assault, the majority opinion suggests that, before resolving
Defendant’s Commerce Clause challenge, further factual development is required to
definitively determine the precise number of Amazon shipments affected by Defendant's
assault of C.T. Ante at 6 n.5. But the Supreme Court has made clear that, for purposes of
assessing an as-applied challenge under the Commerce Clause, “it makes no
difference . . . that any actual or threatened effect on commerce in a particular case is
minimal.” Taylor, 136 S. Ct. at 2081. Rather, “[w]here the class of activities is regulated
and that class is within the reach of federal power, the courts have no power ‘to excise, as
trivial, individual instances’ of the class.” Perez v. United States, 402 U.S. 146, 154
(1971) (quoting Maryland v. Wirtz, 392 U.S. 183, 193 (1968)). Thus, the Supreme Court
has rejected Commerce Clause challenges when the charged conduct interfered with even
a miniscule amount of interstate commerce. Taylor, 136 S. Ct. at 2078, 2081–82
(affirming Hobbs Act conviction based on attempted drug robberies that netted only
jewelry, $40, three cell phones, and a single marijuana cigarette).
        Accordingly, as long as Defendant’s assault of C.T. affected some shipments, the
exact number of shipments affected by his assault has no bearing on the resolution of
Defendant’s Commerce Clause challenge.

                                            27
App’x 186, 188 (4th Cir. 2011). It can hardly be gainsaid that the passive possession of a

firearm outside a school bears any more obvious a relationship to interstate commerce

than the actual shipment of the same firearm across state lines.

       Likewise, were Defendant’s position correct that the Commerce Clause permits

Congress to regulate only crimes against property, and not crimes against persons, then

Congress could hold criminally accountable individuals who damage real property owned

by a business, see Terry, 257 F.3d at 369–71, but not individuals who assault an

employee actively working for that business. Yet there is no constitutional or logical

basis to conclude that the Commerce Clause authorizes Congress to regulate interference

with one factor of production (capital, in the form of real property), but not another

(labor). On the contrary, the Supreme Court’s longstanding recognition that Congress

may pervasively regulate the labor market and the terms and conditions of employment

indicates that Congress may proscribe conduct that interferes with labor as well as

capital. See, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30–32 (1937)

(rejecting Commerce Clause challenge to the National Labor Relations Act). 4

       Defendant further argues—and the district court held—that the Supreme Court’s

decisions in Lopez and Morrison demonstrate that Defendant’s physical assault of C.T.

does not fall under Congress’s authority to regulate “activities that substantially affect

       4
         The fallacy underlying this distinction is even more evident in light of the rising
tide of automation throughout much of the American economy. Under the rule proposed
by Defendant, Congress would have less authority to protect flesh-and-blood workers
employed in interstate commerce than machines performing the very same tasks as those
workers. I see no constitutional basis for embracing such a rule, and Defendant has
pointed to none.

                                            28
interstate commerce.” See Hill, 182 F. Supp. 3d at 552–55. 5 Again, however, the

government has the better of the argument on this score.

       In Lopez, the Supreme Court considered a challenge to the Gun-Free School Zones

Act, in which Congress established a federal criminal offense prohibiting possession of a

firearm near a school. 514 U.S. at 551. There, the defendant, a 12th-grade student, was

charged with carrying a concealed .38-caliber handgun on school property. Id. The

Supreme Court held that the statute exceeded Congress’s authority under the Commerce

Clause because it had “nothing to do with ‘commerce’ or any sort of economic enterprise,

however broadly one might define those terms.”          Id. at 561.     The Court further

emphasized that the statute lacked an interstate-commerce jurisdictional element and

explained that it could not be “sustained under . . . cases upholding regulations of

activities that arise out of or are connected with a commercial transaction, which viewed

in the aggregate, substantially affects interstate commerce.”     Id.   Finally, the Court

rejected the government’s argument that the statute was constitutional because possession

of firearms in school zones may lead to violent crimes which have substantial societal

and economic costs. Id. at 563–64. Accepting such a “costs of crime” argument would

permit Congress to “regulate not only all violent crime, but all activities that might lead


       5
         In moving to dismiss the indictment, Defendant argued, in the alternative, that
the Hate Crimes Act is facially unconstitutional and that the “catch-all” jurisdictional
elements included in the statute are unconstitutionally vague and overbroad. Having
found the statute unconstitutional as applied in this case, however, the district court
declined to reach these alternative bases for dismissing the indictment. Defendant has
declined to renew these alternative arguments before this Court, and I therefore do not
reach them in resolving the instant appeal.

                                            29
to violent crime, regardless of how tenuously they relate to interstate commerce,” the

Court said, which would unconstitutionally “‘obliterate the distinction between what is

national and what is local.’” Id. at 564, 567 (quoting A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495, 554 (1935) (Cardozo, J., concurring)).

       Morrison involved a challenge to a provision in the Violence Against Women Act

which established a federal civil remedy for the victims of gender-motivated violence.

529 U.S. at 601–02. There, the Supreme Court held that the statute exceeded Congress’s

power under the Commerce clause, emphasizing that “[g]ender-motivated crimes of

violence are not, in any sense of the phrase, economic activity.” Id. at 613. “The

regulation and punishment of intrastate violence that is not directed at the

instrumentalities, channels, or goods involved in interstate commerce has always been the

province of the States,” the Court explained. Id. at 618. The Court also emphasized that

the Violence Against Women Act, like the Gun-Free School Zones Act, did not have an

interstate-commerce jurisdictional element. Id. at 613. Finally, the Court rejected “the

argument that Congress may regulate noneconomic, violent criminal conduct based

solely on that conduct’s aggregate effect on interstate commerce.” Id. at 617; see also id.

at 618 (“Indeed, we can think of no better example of the police power, which the

Founders denied the National Government and reposed in the States, than the suppression

of violent crime and vindication of its victims.”).

       Lopez and Morrison are readily distinguishable from the present case.         Most

significantly, whereas the Morrison and Lopez Courts found it significant that the statutes

at issue in those cases had no interstate-commerce jurisdictional element, the provision in

                                             30
the Hate Crimes Act under which the government indicted Defendant includes such an

element. That element requires that, to convict a defendant under the Hate Crimes Act,

both a court and a fact-finder must conclude that the defendant’s conduct “interfere[d]

with commercial or other economic activity in which the victim is engaged at the time of

the conduct.” 18 U.S.C. § 249(a)(2)(B)(iv)(I). Notably, Defendant has identified no case

in which a federal criminal statute including such a jurisdictional element has been held

to exceed Congress’s authority under the Commerce Clause, nor have I found any.

       Additionally, the conduct giving rise to the prosecutions at issue in Lopez and

Morrison—possessing a handgun on a school campus and domestic violence—did not

interfere with ongoing interstate commerce or economic activity.              By contrast,

Defendant’s assault of C.T. interfered with such ongoing activity by preventing C.T. from

continuing to prepare packages for interstate sale and shipment. The Lopez Court itself

recognized this critical distinction, stating flatly that “Congress is empowered to regulate

and protect . . . persons or things in interstate commerce, even though the threat may

come only from intrastate activities.” 514 U.S. at 558 (emphasis added).

       Finally, the slippery-slope concern animating the Lopez Court’s holding—that

allowing Congress to regulate the possession of guns in school zones would give

Congress unfettered authority to regulate wholly intrastate conduct traditionally subject to

regulation by the States—is not present here. Section 249(a)(2)(B)(iv)(I) authorizes

federal prosecution of a hate crime only when the crime “interferes with commercial or

other economic activity in which the victim is engaged at the time of the conduct.” As

the government concedes, this provision does not give the federal government general

                                            31
license to punish “crimes of violence motivated by discriminatory animus.”              See

Appellant’s Br. at 21. As authored, therefore, the Hate Crimes Act thus does not infringe

on States’ exclusive authority to regulate violent crimes—including hate crimes—

unrelated to ongoing interstate commerce. For example, if Defendant had assaulted C.T.

at a private residence while C.T. was not engaged in activity related to interstate

commerce, then Defendant would not be subject to prosecution under the statute.

       In sum, because conduct criminalized under the Hate Crimes Act necessarily

“relates to an activity that has something to do with commerce or any sort of economic

enterprise,” United States v. Gibert, 677 F.3d 613, 624 (4th Cir. 2012) (internal quotation

marks omitted), the statute does not open the door to pervasive federal regulation of

violent hate crimes.

                                            IV.

       The immediate impact of Defendant’s assault of C.T. on ongoing commercial

activity demonstrates a sufficient relationship to interstate commerce to support

Defendant’s prosecution under the Hate Crimes Act. Because Defendant has thus far

failed to make a “plain showing” to the contrary, see Gibert, 677 F.3d at 618, and

assuming the government succeeds in proving its allegations at trial, I would find the

statute is constitutional as applied in this case. Accordingly, for reasons not given in the

majority opinion, the district court order to the contrary should be reversed and this case

should be remanded with instructions to reinstate the challenged indictment.

       With due respect to my colleagues in the majority, the issue of whether the

government’s prosecution of Defendant complies with the Commerce Clause is properly

                                            32
before us. It should be resolved. Because the majority opinion elides that important

issue, I must dissent.




                                        33
