     Case: 12-10395       Document: 00512165304         Page: 1     Date Filed: 03/06/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           March 6, 2013
                                     No. 12-10395
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARTHELLA BROADUS,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-183-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Marthella Broadus pleaded guilty to one count of wire fraud and one count
of arson, and she was sentenced to two consecutive 120-month prison terms. On
appeal, Broadus challenges only her arson conviction. She does so on the basis
that the factual basis for her plea on that count was insufficient to allege an
offense because it did not admit that her arson was an act of interstate
commerce. The Government moves for summary affirmance or dismissal and,
alternatively, for an extension of time to file a brief.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-10395

      Broadus’s appeal is not barred by the appeal waiver contained in her plea
agreement. Even a defendant who has validly waived her right to appeal may
challenge the factual basis underlying her guilty plea. United States v. Trejo,
610 F.3d 308, 312-13 (5th Cir. 2010); United States v. Hildenbrand, 527 F.3d
466, 474 (5th Cir. 2008). As Broadus concedes, though, our review in this case
is only for plain error since she failed to object in the district court to the
adequacy of the factual basis to support her plea. See Trejo, 610 F.3d at 312-13;
United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc). To show
plain error, Broadus must show a forfeited error that is clear or obvious and that
affects her substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009).
If she makes such a showing, this court has the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
      “The elements of arson are that the defendant (1) maliciously damaged or
destroyed a building or personal property, (2) by means of fire, and (3) the
building or personal property was being used in activity affecting interstate
commerce.” United States v. Severns, 559 F.3d 274, 289 (5th Cir. 2009) (internal
quotation marks and citation omitted). The factual basis to which Broadus
stipulated is sufficient to sustain each of these elements, and Broadus does not
contend otherwise. Instead, she asserts that 18 U.S.C. § 844(i), the federal arson
statute, is constitutionally invalid to the extent that it attempts to criminalize
anything other than arson committed as an act of commerce. In support of this
assertion, she relies on her interpretation of a recent Supreme Court case, Nat’l
Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012), as “establish[ing] that
the Commerce Clause permits Congress to regulate or prohibit activities that are
interstate commerce, but not to regulate or prohibit activities that merely affect
interstate commerce.” Broadus acknowledges she cannot prevail on plain error
review because her reading of Nat’l Fed’n of Indep. Bus. is a novel one that is not
unambiguously supported by the current state of the law. She raises the issue

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                                  No. 12-10395

here to preserve it for further review in the event that the law may become
unambiguous prior to the conclusion of her direct appeal. She also seeks to
preserve for further review her contentions that the issue whether a factual
basis admits a constitutional offense presents the question whether there can be
a cognizable finding of guilt and that this question ought not be reviewed only
for plain error.
      Broadus has not met her burden under the plain error standard. The
district court’s judgment is AFFIRMED. The Government’s motion for summary
affirmance or dismissal and its alternative motion for an extension of time to file
a brief are DENIED.




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