                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 11-4121


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

AJMAL A. AMAN,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  T. S. Ellis, III, Senior
District Judge. (1:10-cr-00236-TSE-1)


Argued:   March 20, 2012                       Decided:    May 10, 2012


Before TRAXLER,    Chief   Judge,   and   DUNCAN   and   DAVIS,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED:   Matthew   Alan   Wartel,  Alexandria,  Virginia,   for
Appellant.    George Zachary Terwilliger, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.   ON BRIEF:
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Ajmal Aman appeals from his conviction for arson, see 18

U.S.C. § 844(i), arguing that the application of § 844(i) to his

conduct    exceeds        the    federal   government’s           authority   under     the

Commerce Clause.           We find Aman’s argument unpersuasive, and we

affirm his conviction and sentence.



                                               I.

     Aman was one of several owners of Bridges Billiards and

Grill,    a    bar    and       restaurant         located   in    Fairfax,       Virginia.

Bridges occupied almost 10,000 square feet of leased space on

the first floor of a seven-story commercial office building that

housed more than seventy other businesses.

     On    November        1,    2009,   an     intentionally-set          fire    (started

through       use    of   gasoline       and    lighter      fluid    as    accelerants)

destroyed the restaurant’s office and damaged other parts of the

restaurant.          Aman was alone in the restaurant when the fire

started.        He fled the building and ran down the street to a

nearby fire station to report the fire.                       The fire had already

been reported, and a unit was on its way to the restaurant even

as Aman was pounding on the fire station door.

     Aman made his way back to the Bridges parking lot and spoke

to Captain Gregory Rausch, one of the firefighters on the scene.

Aman told Rausch that he had been closing up the restaurant when

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the fire started and that, in his rush to leave the building, he

had left his keys inside the restaurant.                     Rausch testified that

Aman strongly smelled of lighter fluid and that Aman’s clothes -

- an orange jumpsuit worn as a costume for the restaurant’s

Halloween party -- looked stiff and melted from the knees down.

While    evaluating      Aman     for    burns      and   other    injuries,   Rausch

noticed a large amount of cash stuffed into one of Aman’s boots.

     A     box   containing        bottles         of   lighter    fluid,    jugs     of

gasoline, and Aman’s wallet, car keys, and cell phone was found

in the undamaged part of the restaurant.                          Another bottle of

lighter fluid was found in Aman’s car, Aman’s fingerprints were

found on some of the gasoline and lighter-fluid containers, and

grocery-store surveillance footage showed Aman buying multiple

bottles of lighter fluid in the days before the fire.                                Not

surprisingly, the jury found this evidence sufficient to convict

Aman of arson.



                                             II.

        Under    §    844(i),     it    is   a     federal   crime   “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.”           18 U.S.C. § 844(i) (emphasis added).                    On

appeal, Aman argues that the operation of Bridges, a local bar

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and restaurant serving a predominantly local customer base, did

not substantially affect interstate commerce, as he asserts is

required by United States v. Lopez, 514 U.S. 549 (1995).                      Aman

therefore contends that applying § 844(i) to his conduct exceeds

the government’s authority under the Commerce Clause and that

his conviction must be reversed.            We disagree.

       In Jones v. United States, 529 U.S. 848 (2000), the Supreme

Court held that “an owner-occupied residence not used for any

commercial     purpose    does   not   qualify     as    property     ‘used    in’

commerce     or   commerce-affecting        activity,”     as   required   by    §

844(i), and that “arson of such a dwelling, therefore, is not

subject to federal prosecution under § 844(i).”                   Id. at 850-51.

The Court rejected the government’s claim that the house was

used   in    interstate    activities       because   it    was    financed    and

insured through out-of-state companies and received natural gas

from an out-of-state supplier.               See id. at 855.          The Court

explained:

       Were   we   to   adopt   the   Government’s  expansive
       interpretation of § 844(i), hardly a building in the
       land would fall outside the federal statute’s domain.
       Practically every building in our cities, towns, and
       rural areas is constructed with supplies that have
       moved in interstate commerce, served by utilities that
       have an interstate connection, financed or insured by
       enterprises that do business across state lines, or
       bears some other trace of interstate commerce.      If
       such connections sufficed to trigger § 844(i), the
       statute's limiting language, “used in” any commerce-
       affecting activity, would have no office.


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Id. at 857 (citation omitted).               The Court instead concluded that

the statute’s jurisdictional hook -- the requirement that the

building     itself     be    used   in    an   activity       affecting     interstate

commerce -- “is most sensibly read to mean active employment for

commercial purposes, and not merely a passive, passing, or past

connection to commerce.”             Id. at 855.         The Court explained that

by   limiting     federal      arson      prosecutions        in   this    manner,    the

constitutional question “brought to the fore in Lopez” could be

avoided.     Id. at 858.

      Aman’s constitutional challenge thus turns on whether the

property     at   issue       in   this    case    was       actively     employed    for

commercial purposes at the time of the fire.                        If that standard

is   met,     then      the     connection        to     interstate       commerce     is

substantial enough to quell any Lopez-based concerns about the

propriety    of   the     prosecution.          See    Jones,      529    U.S.   at   858;

United States v. Patton, 451 F.3d 615, 633 (10th Cir. 2006)

(explaining that § 844(i)’s jurisdictional hook as interpreted

in Jones “serve[s] the purpose of limiting the statute to arson

cases where there really was a substantial and non-attenuated

effect on interstate commerce”).

      “The    Jones     [C]ourt      established         a    two-part      inquiry     to

determine whether a building fits within the strictures of §

844(i).      First, courts must inquire ‘into the function of the

building itself.’            Second, courts must determine ‘whether that

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function affects interstate commerce.’”    United States v. Terry,

257 F.3d 366, 368-69 (4th Cir. 2001) (quoting Jones, 529 U.S. at

854).   As we explain, whether the relevant “building” is the

seven-story office tower that houses the restaurant or simply

the restaurant itself, the function of that building affects

interstate commerce as a matter of law.

     In Russell v. United States, 471 U.S. 858 (1985), the Court

held that where property is being rented to tenants at the time

of an arson, it is “unquestionably” being used in an activity

affecting commerce within the meaning of § 844(i).       Id. at 862.

As the Court explained,

     We need not rely on the connection between the market
     for residential units and the interstate movement of
     people to recognize that the local rental of an
     apartment unit is merely an element of a much broader
     commercial   market   in    rental   properties.     The
     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. (footnote and internal quotation marks omitted).

     Like the two-unit apartment building in Russell, the 70-

tenant office building in this case was a part of the broad

commercial market in rental properties.          The office building

thus was being actively employed in a commercial activity that

affects interstate commerce as a matter of law.           See United

States v. Parsons, 993 F.2d 38, 40 (4th Cir. 1993) (“[T]he plain

language   of   Russell   controls.   If   the   house   was   ‘rental

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property’ at the time of the arson, it was used in an activity

that   affects    interstate     commerce,    and    Parsons’     conduct   was

within the statute.”); see also United States v. Guzman, 603

F.3d 99, 109 (1st Cir.) (“The rule in this circuit is that

rental property is per se sufficiently connected to interstate

commerce to confer federal jurisdiction under Section 844(i).”

(internal quotation marks omitted)), cert. denied, 131 S. Ct.

487 (2010); United States v. Iodice, 525 F.3d 179, 183 n.2 (2d

Cir. 2008) (concluding that Russell established a per se rule

that rental property is property used in an activity affecting

interstate commerce).

       We would reach the same conclusion even if we disregarded

the    rental-property    aspects    of   this      case    and   viewed    the

restaurant itself as the only relevant building.                  Bridges was

operating as a bar and restaurant at the time of the fire, and

that commercial use of the property is enough to establish the

necessary connection to interstate commerce.                 See Terry, 257

F.3d   at    370-71   (finding    commercial    daycare     center   operated

inside   church    building    sufficient     to    bring   church   building

within the scope of § 844(i):         “In both Russell and in the case

at bar, the commercial use of the property brings the building

within   §    844(i)’s   jurisdictional      nexus.”);      see   also   United

States v. Soy, 413 F.3d 594, 603-04 (7th Cir. 2005) (“[T]he per

se rule set forth in Russell applies equally to restaurants and

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bars, and, consequently, buildings housing these establishments

are ‘used in’ interstate commerce for purposes of § 844(i).”);

United    States     v.    Joyner,      201       F.3d      61,    79    (2d    Cir.       2000)

(“Russell       mandates    the    adoption           of    a    similar       per    se     rule

regarding bars or restaurants.”); United States v. Serang, 156

F.3d   910,     913-14     (9th    Cir.    1998)       (“A       restaurant      is    clearly

commercial property. . . .              As a commercial enterprise, it had a

per se substantial effect on interstate commerce and is subject

to regulation by Congress in § 844(i).”).

       The evidence presented at trial was more than sufficient to

establish the critical “jurisdictional” facts -- that Bridges at

the time of the fire was an active bar and restaurant operating

out of leased space in a commercial office building.                                 Aman does

not    dispute      the     sufficiency           of       this     evidence,         and     he

acknowledges        that      Bridges           was        “an     overtly       commercial

establishment.”           Brief    of     Appellant         at    14.      Aman       insists,

however, that “[s]imply engaging in business does not ipso facto

create a substantial [e]ffect on commerce.                              Otherwise, limits

[on] Congress’ authority would collapse into a rule that allowed

federal     jurisdiction      over        all     commerce.”             Id.         Again     we

disagree.

       Aman’s    argument     in    this    regard          is    premised      entirely      on

Lopez; Aman does not discuss (or even cite) Jones or Russell in

his brief.       Although Russell was decided well before the Court

                                              8
issued its opinion in Lopez, the Court effectively re-affirmed

Russell’s holding in Jones.       See Jones, 529 U.S. at 856-57.

Moreover, the Jones Court explained that its construction of §

844(i) was “reinforced by” its opinion in Lopez, id. at 851, and

that the statute raises no Lopez concerns so long as it is

applied only to arson of property that was actively employed for

commercial purposes, see id. at 857-58.        Aman may well believe

that   the   active-employment-for-commercial-purposes   standard   in

fact is inconsistent with Lopez, but that is a matter for the

Supreme Court, not this court.        See United States v. Young, 609

F.3d 348, 356 (4th Cir. 2010).



                                 III.

       Because the operation of a restaurant in a leased space is

an activity that affects interstate commerce, we reject Aman’s

claim that the application of § 844(i) to his conduct exceeds

the federal government’s authority under the Commerce Clause.

Accordingly, we hereby affirm Aman’s conviction and sentence.



                                                             AFFIRMED




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