                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 15-2796
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                 JOSEPH DOUGHERTY,
                                             Appellant
                                    ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (District Court No. 2:14-cr-00069-001)
                        District Judge: Hon. Michael M. Baylson
                                    ______________

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  November 10, 2016
                                   ______________

         Before: SMITH, Chief Judge, McKEE and RESTREPO, Circuit Judges.

                             (Opinion filed: August 23, 2017)

                               _______________________

                                      OPINION
                               _______________________
MCKEE, Circuit Judge.

       Appellant Joseph Dougherty appeals his conviction and sentence for six counts of




 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
RICO conspiracy, arson, and extortion interfering with interstate commerce. For the

reasons that follow, we affirm the district court’s judgment of conviction and sentence.

                                             I.1

       The main counts at issue on this appeal2 pertain to an arson at a non-union

construction site on Grays Avenue in Philadelphia and an attempted arson at a non-union

construction site in Malvern, Pennsylvania. Both of these incidents involved the use of an

acetylene torch—a tool generally used for welding—to destroy (or attempt to destroy)

property. Dougherty argues, for the first time on appeal, that an acetylene torch does not

constitute “uses fire” 3 or “by means of fire”4 as Congress envisioned in 18 U.S.C. § 844,

nor were the damaged properties “used in interstate or foreign commerce or in any activity

affecting interstate or foreign commerce,”5 and therefore, his convictions under Counts 5

through 8 should be reversed. Dougherty also argues that the evidence was insufficient to


1
  The district court had subject matter jurisdiction over the case pursuant to 18 U.S.C. §
3231. This Court has jurisdiction over this matter under 28 U.S.C. § 1291, and has
jurisdiction pursuant to 18 U.S.C. § 3742 to review the sentence imposed on the
defendant.
2
  Counts 5 through 8 are the focus of this appeal: maliciously damaging property by
means of fire, in violation of 18 U.S.C. § 844(i) (Count 5); use of fire to commit a felony,
in violation of 18 U.S.C. § 844(h) (Count 6); conspiracy to maliciously damage property
by means of fire, in violation of 18 U.S.C. § 844(n) (Count 7); and attempt to maliciously
damage property by means of fire in violation of 18 U.S.C. § 844(i) (Count 8).
3
  18 U.S.C. § 844(h) imposes a ten-year sentence of imprisonment on a defendant who
“uses fire or an explosive to commit any felony which may be prosecuted in a court of the
United States.”
4
  18 U.S.C. § 844(i) imposes a sentence of imprisonment of “not less than 5 years and not
more than 20 years” on a defendant who “maliciously damages or destroys, or attempts 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.”
5
  Id.
                                             2
establish his knowledge of the acetylene torch that was used to damage the Grays Avenue

site, and that he should therefore be acquitted on Counts 5 and 6. If we reject these

arguments and do not reverse Counts 5 through 8, Dougherty seeks a new trial based on

his claim that the district court improperly instructed the jury concerning fire and

interstate commerce, and abused its discretion by failing to remove a juror during trial.

He argues in the alternative that if we affirm all of his convictions, he is entitled to be

resentenced because of errors the district court made in calculating his sentence.

                                              II.

         The arguments on this appeal related to the meaning of “use of fire” and “used in

interstate commerce” are questions of statutory interpretation subject to plenary review.6

         Dougherty contends that use of the acetylene torch in connection with the Grays

Avenue and Malvern incidents does not fall within the range of conduct Congress

envisioned when it criminalized the use of fire under 18 U.S.C. § 844. His argument relies

on United States v. Thompson, wherein the Court of Appeals for the Ninth Circuit held

that the use of a thermal lance to cut open an ATM machine during the course of a bank

larceny did not constitute the use of fire to commit a felony under 18 U.S.C. § 844(h)(1).7

However, this case is clearly distinguishable.

         Dougherty’s argument incorrectly focuses on the use of the torch in Thompson,

rather than the role the torch played in the commission of the charged crime. The

Thompson defendants used the torch as a tool to allow them to gain access to the cash


6
    Gibbs v. Ryan, 160 F.3d 160, 162 (3d Cir. 1998).
7
    728 F.3d 1011, 1016 (9th Cir. 2013).
                                               3
inside an ATM machine; they did not use it to destroy the ATM itself. 8 Accordingly, the

Thompson court observed the statute “was envisioned to apply to uses of fire that directly

cause the harm,” and held “that § 844(h)(1) does not apply because Congress did not

envision the use of the penalty provision to punish the employment of a tool to melt metal

in the course of committing a bank larceny.”9

       Conversely, here the torch was not used to facilitate commission of a distinct

crime; it was the sole instrument used to commit the charged crime of damaging property

by means of fire.10 The Thompson decision confirmed that Congress intended conduct

where the “fire directly does the harm,” to be proscribed by the statute.11 Thus, the use of

the acetylene torch in this case clearly falls within the range of conduct Congress intended

to criminalize under 18 U.S.C. § 844.12

       Dougherty also argues that the government has not proven that the structures

involved in these crimes were engaged in interstate commerce. He contends that the

buildings, both of which were under construction, were not actively engaged in interstate




8
  Thompson, 728 F.3d at 1013. In fact, the perpetrators took measures to ensure the torch
did not cause a fire in the ATM lobby. Id. at 1014.
9
  Id. at 1019–20.
10
   James Walsh, who committed the Grays Avenue damage, testified that he used the torch
to cut through the building’s anchor bolts and steel columns. App. 743.
11
   Id. (citing 128 Cong. Rec. H4957–60 (Aug. 2, 1982); 128 Cong. Rec. S11985 (Sept. 22,
1982)).
12
   See also, United States v. Desposito, 704 F.3d 221, 226 –29 (2d Cir. 2013) (holding that
the use of fire was “integral” to bank robbery where defendant lit a car on fire to divert
authorities’ attention from robbery); United States v. McAuliffe, 490 F.3d 526, 536–37
(6th Cir. 2007) (holding that defendant used fire to commit mail fraud where he burned his
home down in order to collect insurance proceeds).
                                              4
commerce within the purview of Jones v. United States.13 The government argues that

because the buildings were active construction sites with supplies being delivered and

used from other states, the interstate commerce nexus is satisfied. For the reasons

explained below, we agree.

       In Jones, 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; arson of such a dwelling, therefore, is not subject to federal prosecution

under § 844(i).”14 The property at issue in Jones differs from the property at issue here in

two ways: (1) it was not under construction at the time of the arson, and (2) it was neither

engaged in, nor intended to be engaged in, interstate commerce.

       The property in Jones was an occupied family residence.15 Here, the Malvern and

Grays Avenue sites were active construction sites, and building materials from out of state

were delivered to the site and were actively being used in the construction.

       Additionally, a building’s intended use is relevant to the interstate commerce

nexus.16 Indeed, “the proper inquiry . . . is into the function of the building itself, and then

a determination of whether that function affects interstate commerce.”17 Unlike the owner-



13
   529 U.S. 848 (2000).
14
   Id.at 850–51.
15
   Id. at 851.
16
   See United States v. Williams, 299 F.3d 250, 255 (3d Cir. 2002) (holding that a vacant
building available for rent was engaged in interstate commerce); United States v. Gaydos,
108 F.3d 505, 511 (3d Cir. 1997) (holding that a vacant and uninhabitable building did not
affect interstate commerce where the owner had no intention of ever making it habitable
or rentable again).
17
   Jones, 529 U.S. 848 at 854–55 (internal quotations omitted).
                                               5
occupied personal residence in Jones, both buildings here were being constructed in order

to perform commercial activities—the Malvern site was an apartment complex and the

Grays Avenue site was a warehouse. Both of these uses have already been established by

prior case law to constitute commercial activities with an effect on interstate commerce.18

This easily satisfies the required interstate commerce nexus. 19

       This conclusion is not only fatal to Dougherty’s claim that the government did not

establish the element of interstate commerce, it is also fatal to, and dispositive of, his

related argument that the district court erred in instructing the jury on the meaning of

“uses fire” under 18 U.S.C. § 844(h) and “by means of fire” under 18 U.S.C. § 844(i).

Because Dougherty did not challenge the jury instructions at trial, we review for plain

error.20 Under the plain error standard, Dougherty must establish (1) an error; (2) that is

plain; and (3) that affected substantial rights.21

       Dougherty argues that the definition of “fire” in the jury instructions—“the process

by which an ignited fuel combines with oxygen by giving off light, heat and flame”22—

was “grossly overbroad and palpably misrepresented the meaning of fire under the

statute.”23 Dougherty also argues that the district court’s instruction on the interstate


18
   See Russell v. United States, 471 U.S. 858, 862 (1985) (holding that an apartment
building being rented to tenants was “unquestionably” being used in an activity affecting
interstate commerce); United States v. Corona, 108 F.3d 565, 570–71 (5th Cir. 1997).
19
   See United States v. Andrini, 685 F.2d 1094, 1096 (9th Cir. 1982) (holding that “the
construction of a commercial office building using out-of-state materials is a commercial
activity affecting interstate commerce for the purposes of [§] 844(i)”).
20
   See Fed. R. Crim. P. 52(b).
21
   United States v. Dobson, 419 F.3d 231, 236 (3d Cir. 2005).
22
   App. 1725.
23
   Dougherty Br. 55.
                                                6
commerce nexus24 “failed to come remotely close to accurately conveying the meaning of

this statutory element” and “directly contravene[d] Jones.”25

       As we have already explained, the use of the acetylene torch here satisfied the

“fire” elements of Sections 844(i) and (h), and the evidence clearly established the nexus

between the target properties and commercial activity at the sites. Therefore, we cannot

say that any alleged error in the jury instructions affected Dougherty’s substantial rights.

Accordingly, we do not find plain error in the district court’s jury instructions.26

       Dougherty also argues that the district court erred by denying his motion for a

judgment of acquittal on the Grays Avenue counts, because the evidence was insufficient

to establish that he knew his co-defendants intended to damage the Grays Avenue non-


24
   The district court’s instruction on the interstate commerce element of Count 5 serves to
illustrate instructions given on Counts 5, 7, and 8:
        Conduct affects interstate commerce if it in any interference with, changes or
        alters the movement of transportation or flow of goods, merchandise, money
        or other property in commerce between one state and another state or any
        place outside that state.
        The effect can be minimal. It is not necessary to prove that Joseph Dougherty
        intended to obstruct, delay or interfere with interstate commerce or that the
        purpose of the alleged crime was to affect interstate commerce.
        Further, you don’t have to decide whether the effect on interstate commerce
        was to be harmful or beneficial to a particular business or to commerce in
        general.
        You do not even have to find that there was an actual effect on commerce. All
        that is necessary to prove this element is that the natural consequences of the
        offense potentially caused an effect on interstate commerce to any degree,
        however minimal or slight.
App. 1726.
25
   Dougherty Br. 57.
26
   This finding also precludes us from reaching Dougherty’s argument that his conviction
under Count 1 must be vacated because his “convictions under Counts Five through Eight
were invalid at least because they rested on an erroneous understanding of the law.”
Dougherty Br. 59. We find no such error, and therefore will not consider this argument.
                                               7
union worksite and/or to use the acetylene torch to do so. Dougherty argues that the

totality of the evidence only shows that Dougherty (1) knew the Local 401 ironworkers

had damaged the Quaker Meetinghouse jobsite and burned a crane there (but nothing

about a torch being involved), (2) that union member Walsh was involved in the Quaker

Meetinghouse incident, and (3) that Walsh had come by the union hall before the Grays

Avenue incident, and Dougherty helped him find the torch. Thus, Dougherty argues, the

evidence is insufficient to prove that he knew that Walsh planned to use the torch at the

Grays Avenue site and aided him in doing so.

       Our review of the sufficiency of the evidence is a “highly deferential” analysis,27 in

which we ask, “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.”28 We need not respond to this argument in any detail as it is

defeated by the evidence summarized in Dougherty’s own brief.29

       Dougherty next argues that the district court abused its discretion by refusing to

remove a juror for alleged bias. This juror, after trial had commenced, advised the district

court’s deputy that “two of [her] friends are friends with Mr. O’Neill,” who was the

developer of the property in Malvern, but who did not testify at trial.30 The district court

then colloquied the juror, who stated that she had never talked to O’Neill, could not recall




27
   United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en banc).
28
   Jackson v. Virginia, 443 U.S. 307, 318–19 (1979).
29
   See Dougherty Br. 20–34.
30
   App. 545, 548.
                                              8
ever meeting him, and could not recall his first name.31 After several questions about her

impartiality, the juror ultimately stated she could be fair.32 Dougherty requested the court

excuse the juror because she was “equivocal at best” about her ability to be fair, and the

court held the issue under advisement. At the end of the case, after the district court had

charged the jury, Dougherty renewed his motion to recuse the juror, pointing out that the

contractor (O’Neill Properties) was mentioned several times during trial, and four

alternate jurors were available. The district court concluded that the juror would stay,

because (1) the juror’s relationship with O’Neill was extremely tangential; (2) there was

no dispute that the alleged damage occurred; and (3) many potential jurors initially doubt

their ability to be impartial. Dougherty argues that, in making this determination, the

district court found that the juror “readily said” she could be fair and impartial, which

reflects an “erroneous understanding” of the earlier colloquy and therefore should not be

given any special deference.33 We disagree.



31
   Id. at 547.
32
   The district court’s final question was, “Now would the mere fact that O’Neill
Properties was one of the victims, would that prevent you from being a fair and impartial
juror?” The juror responded, “No.” App. 552.
33
   Dougherty Br. 62–63. Here, Dougherty points to the following statement from the
district court regarding the juror in question:
        Well, you know, a lot of potential jurors have initial reactions and they think
        they know somebody in the case or that they’ve heard about the case—you
        know, that they can’t be fair.
        We hear that all the time and then if you explain to jurors that, you know, the
        purpose of a trial is to present evidence under the Rules of Evidence and we
        ask them can you—you know, if you would consider that principle and could
        you decide the case based on what happens in the courtroom, she readily said
        she could do that.
App. 1771 (emphasis added).
                                              9
       The record supports the court’s crediting the juror’s response that she could be fair

and impartial, particularly in light of her attenuated connection to O’Neill, and O’Neill’s

peripheral relationship to the case. The district court did not abuse its discretion in

denying Dougherty’s motion to strike this juror.

       Finally, Dougherty makes several arguments regarding his sentence: (1) the district

court made two procedural errors in making his sentencing guidelines calculation, and (2)

the sentence is substantively unreasonable. Dougherty first argues that the district court

erred in calculating his guideline range by including the Toys-R-Us baseball bat attack34 in

the guideline calculation under relevant conduct principles, because that attack was not

reasonably foreseeable to him.35 However, we agree with the government that the record

shows that the Toys-R-Us incident was readily foreseeable to Dougherty. The evidence,

which included recorded conversations, proved that Dougherty expressly approved of one

of the attacker’s criminal actions on behalf of the union and sought to elevate him in the

union hierarchy. Thus, the district court did not err by considering this incident in

determining Dougherty’s sentence.

       Dougherty next argues that the district court erred by applying a four-level

leadership enhancement for his role in the RICO conspiracy. He claims that none of the




34
   In June 2010, at the construction site of a Toys-R-Us store near King of Prussia, three
union members attacked non-union workers with baseball bats. They smashed the
windows on the workers’ truck and beat one worker so badly he was sent to the hospital.
Two of the attackers later pled guilty to charges in state court. App. 820–43.
35
   The district court applied U.S.S.G. § 1B1.3 in determining the guideline range as it
relates to the Toys-R-Us incident.
                                              10
factors set forth in Application Note 4 of U.S.S.G. § 3B1.1,36 are present here, and that his

“involvement in the criminal conduct underlying his conviction was nominal to non-

existent.”37 Dougherty further claims that the court erred by failing to independently

assess his role in each incident, and by imposing the enhancement for the Toys-R-Us

extortion, because there is no evidence that he played a leadership role in that episode. We

agree with the government that the problem with this argument, and indeed many of

Dougherty’s arguments, is that he “simply ignores his overarching role in these activities

and instead focuses on his lack of direct involvement in many of these individual acts.”38

The evidence shows that Dougherty was clearly a leader of the enterprise, even though he

did not directly participate in the offense conduct.39 Moreover, Dougherty cites no

authority to support his position that the role enhancement was improperly applied to each

of the underlying criminal acts on the basis of his leadership role in the RICO conspiracy.

Thus, the district court did not err in applying the leadership enhancement.

       Dougherty concludes by arguing that his below-guideline-range sentence was

substantively unreasonable, because the court failed to give proper weight to his


36
   These factors include “the exercise of decision making authority, the nature of
participation in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of participation in
planning or organizing the offense, the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.” U.S.S.G. § 3B1.1, App. Note 4.
37
   Dougherty Br. 69.
38
   Gov’t Br. 65 (emphasis added).
39
   See United States v. Bass, 54 F.3d 125, 129 (3d Cir. 1995) (“A person who plans, funds,
and supervises a conspiracy's operation does not immunize himself from upward
adjustment under § 3B1.1 just because he does not join in all of the mechanics and all of
the various activities of the illegal enterprise. Indeed, leaders and organizers often distance
themselves from the actual implementation of the conspiracy.”).
                                              11
arguments for leniency. Specifically, defense counsel argued that Dougherty was elderly,

in frail condition, only tangentially involved in any criminal activity, and had a

tremendous amount of community support. Dougherty argues that the district court’s

variance to 230 months does not properly reflect all the mitigating factors at issue in this

case and, therefore, is substantively unreasonable. These arguments, however, fail to

establish that “no reasonable sentencing court would have imposed the same sentence on

that particular defendant for the reasons the district court provided.”40 The fact that the

court did not give mitigating factors the weight a defendant contends they deserve does

not render a sentence unreasonable or show an abuse of discretion. Here, the record shows

that the district court properly balanced the applicable factors and reasonably concluded

that 230 months was appropriate.

                                              III.
         For the foregoing reasons, we will affirm the district court’s judgment of conviction

and sentence in their entirety.




40
     United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).
                                              12
