                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 00-4345
LENT CHRISTOPHER CARR, II,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
     for the Eastern District of North Carolina, at Greenville.
               Malcolm J. Howard, District Judge.
                            (CR-99-30)

                      Argued: September 27, 2001

                      Decided: November 5, 2001

      Before MOTZ, KING, and GREGORY, Circuit Judges.



Dismissed in part and vacated and remanded in part by published
opinion. Judge King wrote the opinion, in which Judge Motz and
Judge Gregory joined.


                             COUNSEL

ARGUED: Terry F. Rose, Smithfield, North Carolina, for Appellant.
Banumathi Rangarajan, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
2                        UNITED STATES v. CARR
                               OPINION

KING, Circuit Judge:

   Appellant Lent Christopher Carr, II, was convicted and sentenced
on his pleas of guilty to maliciously damaging and destroying a build-
ing used in interstate commerce by means of fire, in violation of 18
U.S.C. § 844(i) (Count One), conspiracy to commit mail fraud, in vio-
lation of 18 U.S.C. § 371 (Count Five), and bank fraud, prohibited by
18 U.S.C. § 1344 (Count Six). There are two aspects to his appeal.
Carr first challenges his 125-month sentence, consisting of 125
months each on Counts One and Six and 60 months on Count Five,
all to run concurrently. He alleges that the district court failed to rec-
ognize its authority to depart based on his physical condition, U.S.
Sentencing Guidelines Manual § 5H1.4 (1998), and abused its discre-
tion in declining to depart. Second, Carr challenges his § 844(i) con-
viction in light of the Supreme Court’s decision in Jones v. United
States, 529 U.S. 848 (2000). As explained below, we dismiss the
appeal of the court’s decision not to depart, but we vacate Carr’s con-
viction on Count One and remand for further Rule 11 proceedings on
the Jones issue.

                                    I.

                                   A.

   In 1998, Carr applied for a fire insurance policy for a mobile home
in Greenville, North Carolina, which served as a residence and as a
place of worship known as the World Harvest Oasis Temple of Praise
Church. Five days after the insurance policy became effective, Carr
reported that the mobile home had been totally destroyed by fire.
Investigators discovered the origin of the fire to be a cabinet near the
stove, and concluded that the fire had been started by the application
and ignition of gasoline.

   Carr and his wife Davina thereafter made insurance claims for sev-
eral items of value, including items that had been repossessed from
them, were never purchased by them, and were obtained from mer-
chants under false pretenses, as well as items that were grossly over-
                         UNITED STATES v. CARR                          3
valued. Carr also met with witnesses in order to "get their stories
straight." J.A. 158. Those who supported Carr’s version of events
were to get a share of the insurance proceeds. Davina Carr later
admitted that she had lied to an investigating grand jury under pres-
sure from her husband.

                                   B.

   Carr was indicted in the Eastern District of North Carolina in June
1999, and again by superseding indictment in October 1999, for, inter
alia, setting fire to real property used in interstate commerce, in viola-
tion of 18 U.S.C. § 844(i). Pursuant to a plea agreement, he entered
a plea of guilty to this charge as well as to the charges of bank fraud
and mail fraud, and the remaining counts of the superseding indict-
ment were dismissed.

   At Carr’s sentencing hearing on April 17, 2000, defense counsel
sought a downward departure based on extraordinary physical impair-
ment, i.e., Carr’s AIDS diagnosis, noting that his probable life expec-
tancy was only four or five years. The court requested Fourth Circuit
authority to support an adjustment for AIDS, but his counsel pre-
sented none. In response, the Government contended that the prison
system could handle Carr’s illness. The court then denied the down-
ward departure and sentenced Carr to a total of 125 months’ impris-
onment.

                                   II.

   A district court’s decision not to depart from the Sentencing Guide-
lines is not reviewable unless the court mistakenly believed that it
lacked authority to depart. See United States v. Hall, 977 F.2d 861,
863 (4th Cir. 1992). According to Sentencing Guideline § 5H1.4,

     physical condition or appearance . . . is not ordinarily rele-
     vant in determining whether a sentence should be outside
     the applicable guideline range. However, an extraordinary
     physical impairment may be a reason to impose a sentence
     below the applicable guideline range; e.g., in the case of a
     seriously infirm defendant, home detention may be as effi-
     cient as, and less costly than, imprisonment.
4                           UNITED STATES v. CARR
USSG § 5H1.4. In this case, the court had to decide whether Carr’s
diagnosis was an extraordinary impairment warranting departure
under § 5H1.4. The example given by the Guideline, i.e., the effi-
ciency of home detention versus prison, shows that assessing whether
the Bureau of Prisons could adequately care for an individual with
this condition is relevant under the Guideline.

   The court carefully ascertained that there was no authority in this
circuit requiring departure, and observed that it was "not inclined to
grant the Defendant’s motion."1 It is clear that the court understood
its ability to depart, but did not find the presence of an extraordinary
factor warranting departure. Because the court was under no misper-
ception as to its authority, its refusal to depart is not subject to appel-
late review. United States v. Edwards, 188 F.3d 230, 238 (4th Cir.
1999), cert. denied, 528 U.S. 1130 (2000). We therefore may not dis-
turb its ruling on this matter, and we must dismiss this portion of the
appeal.

                                       III.

   Carr’s challenge to his § 844(i) conviction presents us with three
issues, one more difficult than the others. Section 844(i) of Title 18
requires that the building damaged or destroyed by fire or explosive
was used in interstate commerce or in an activity affecting interstate
commerce.2 Our analysis of the interstate commerce element is
    1
    In considering Carr’s motion for a downward departure, the court
stated as follows:
        The Court has carefully considered this matter pursuant to
        United States Sentencing Guideline 5H1.4 and 18 U.S. Code
        3553B, both of which have been reviewed at this bench sitting
        by the Court. The Court is of the belief that these matters can be
        properly considered and properly treated by the United States
        Bureau of Prisons and that they existed at the time of the com-
        mission of this crime and perhaps other criminal involvement of
        this Defendant, and the Court is not inclined to grant the Defen-
        dant’s motion and there being no affirmative law requiring the
        Court to go further then denies the motion of the Defendant.
J.A. at 116-17 (emphasis added).
  2
    The statute underlying Carr’s conviction for Count One, 18 U.S.C.
§ 844(i), provides, in relevant part, as follows:
                          UNITED STATES v. CARR                             5
informed by the Supreme Court’s recent decision in Jones v. United
States, 529 U.S. 848, 850-51 (2000), in which the 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)." The building must be actively employed
"for commercial purposes and not merely a passive, passing or past
connection to commerce." Id. at 855. The Court determined that such
slight connections with interstate commerce as receiving natural gas,
a mortgage, or an insurance policy from outside the state are insuffi-
cient to bring a residence within the scope of § 844(i). Id. at 856; see
also United States v. Rea, 223 F.3d 741, 744 (8th Cir. 2000) (vacating
conviction for arson of church annex in light of Jones and remanding
for fact-finding and determination of whether building was used in
commerce as required by § 844(i)).3

   Carr asserts that Jones error exists here, and makes the following
contentions based on the Jones decision: (1) that Count One of the
superseding indictment is fatally flawed and fails to properly charge
a § 844(i) offense; (2) that the court lacks subject matter jurisdiction
due to failure to prove the "jurisdictional" interstate commerce ele-
ment; and (3) that there was an insufficient factual basis for the court
to accept his guilty plea. We will address each of these contentions
in turn.

      Whoever maliciously damages or destroys, or attempts to dam-
      age or destroy, by means of fire or an explosive, any building,
      vehicle, or other real or personal property used in interstate or
      foreign commerce or in any activity affecting interstate or for-
      eign commerce shall be imprisoned . . . fined . . . or both.
   3
     In its handling of this case, the district court did not have the benefit
of the Supreme Court’s decision in United States v. Jones, which was
rendered on May 22, 2000, well after Carr’s Rule 11 colloquy of January
10, 2000, and his sentencing hearing of April 17, 2000. It is appropriate
to consider Jones here, however, because it applies to cases that are not
yet final, including those on direct appeal. Griffith v. Kentucky, 479 U.S.
314 (1987); United States v. Ismail, 97 F.3d 50 (4th Cir. 1996).
6                           UNITED STATES v. CARR
                                      A.

   The Government maintains, and we agree, that Count One of the
superseding indictment sufficiently alleges a violation of § 844(i),
because it specifically asserts that the building Carr burned was used
in interstate commerce.4 In order to sustain a challenge to Count One,
Carr is obliged to demonstrate that the indictment does not, by any
reasonable construction, charge the offense for which he was con-
victed. Hayle v. United States, 815 F.2d 879, 881-82 (2d Cir. 1987).
Carr entered a guilty plea to Count One, and the interstate commerce
element of § 844(i) was clearly and properly alleged therein; thus this
challenge to Count One must fail.

                                      B.

   Carr next contends that because the interstate commerce element is
"jurisdictional," the federal courts lack subject matter jurisdiction over
his case if the interstate commerce element was not proven. This part
of the Jones claim also must fail, however, because the "jurisdictional
element" is merely one element of the criminal activity proscribed by
§ 844(i), and whether it is demonstrated in an individual circumstance
does not affect "a court’s constitutional or statutory power to adjudi-
cate a case." United States v. Beck, 250 F.3d 1163, 1165 (8th Cir.
2001) (quoting United States v. Martin, 147 F.3d 529, 531-32 (7th
Cir. 1998), and citing United States v. Rea, 169 F.3d 1111, 1113 (8th
Cir. 1999), vacated and remanded on other grounds, 223 F.3d 741
(8th Cir. 2000)). The interstate commerce element of § 844(i) impli-
cates the power of Congress to regulate the conduct at issue, not the
jurisdiction of the court to hear a particular case. See, e.g., United
    4
     Count One of Carr’s superseding indictment alleges as follows:
        On or about June 9, 1998, in the Eastern District of North Caro-
        lina, LENT CHRISTOPHER CARR II, defendant herein, did
        maliciously damage and destroy, by means of fire, a building
        located at 2115 Stokes Road, Greenville, North Carolina, which
        building was used in interstate commerce and in activity affect-
        ing interstate commerce in violation of Title 18, United States
        Code, Section 844(i).
J.A. 24.
                         UNITED STATES v. CARR                            7
States v. Riddle, 249 F.3d 529, 536 (6th Cir. 2001). After a judgment
of conviction is validly entered on a guilty plea, a defendant cannot
challenge the interstate commerce prong of § 844(i) as "jurisdic-
tional," because such a challenge merely contests the sufficiency of
the evidence supporting that element of the offense. See id. ("[A]
claim of an insufficient connection to interstate commerce is a chal-
lenge to one of the elements of the government’s case and is therefore
considered a claim about the sufficiency of the evidence."). The ques-
tion therefore becomes whether the judgment of conviction on Count
One was validly entered.5

                                    C.

   This brings us to Carr’s third Jones claim, and the nub of this case.
In that regard, we must determine whether the Rule 11 proceedings
established a sufficient factual basis for Carr’s guilty plea.6 On direct
appeal, "it is well settled that a defendant may raise . . . the failure
of a district court to develop on the record a factual basis for a plea
  5
    Some courts have determined that a validly entered unconditional
guilty plea to an § 844(i) indictment waives the right to appeal the
court’s determination that the interstate commerce element was satisfied.
See Beck, 250 F.3d at 1166; United States v. Grassie, 237 F.3d 1199,
1208 (10th Cir. 2001) (upholding conviction by jury where interstate
commerce element was stipulated and other evidence of use in commerce
was presented at trial); United States v. Martin, 147 F.3d 529, 531-32
(7th Cir. 1998) (deciding, pre-Jones, that guilty plea waived any chal-
lenge to interstate commerce element); United States v. Viscome, 144
F.3d 1365, 1370 (11th Cir. 1998) (finding, prior to Jones, that guilty plea
waived nonjurisdictional defects including sufficiency of evidence sup-
porting interstate commerce element).
  6
    Rule 11(f) of the Federal Rules of Criminal Procedure provides that
"[n]otwithstanding the acceptance of a plea of guilty, the court should
not enter a judgment upon such a plea without making such inquiry as
shall satisfy it that there is a factual basis for the plea." The court need
not satisfy itself that a jury would find the defendant guilty, or even that
defendant is guilty by a preponderance of the evidence. United States v.
Maher, 108 F.3d 1513, 1524 (4th Cir. 1997). The district court must "as-
sure itself simply that the conduct to which the defendant admits is in
fact an offense under the statutory provision under which he is pleading
guilty." Id.
8                       UNITED STATES v. CARR
as required by Rule 11(f)." United States v. Mitchell, 104 F.3d 649,
652 n.2 (4th Cir. 1997). We may reverse the district court’s determi-
nation that there is a sufficient factual basis for a guilty plea only if
we find an abuse of discretion. Id. at 652. It is also settled that the
judge may establish the factual basis for a guilty plea through ques-
tioning in open court, documents, or other evidence in the record.
United States v. DeFusco, 949 F.2d 114, 117 (4th Cir. 1991). The
court must satisfy itself that all the elements of the charged offense
were committed. Mitchell, 104 F.3d at 652.

   In Mitchell, our Court recently upheld a conviction on a guilty plea
where the defendant contended there was no evidence that he had "ac-
tively employed" a firearm. He asserted on appeal that his conviction
should be vacated in light of a Supreme Court decision construing the
statutory term "use" as requiring proof of active employment. Id.
(referring to Bailey v. United States, 516 U.S. 137, 144 (1995)). After
considering the evidence at the Rule 11 hearing, we concluded that,
although there was no sufficient basis to determine that Mitchell had
"used" the firearm, there was ample evidence that he had "carried" it
(an alternative ground for conviction), and that his plea was therefore
valid. Mitchell, 104 F.3d at 652.

   In this case, however, we perceive an insufficient factual basis in
this record to support Carr’s guilty plea to Count One. At the Rule 11
hearing, conducted pre-Jones on January 10, 2000, the court asked,
"Did you as charged in Count 1 set fire to a building in order to dam-
age it and the building was property used by another in or effecting
[sic] interstate commerce and you did this intentionally? Did you do
that?" J.A. 96-97. While Carr answered "[y]es, sir," J.A. 97, we are
unable to adequately discern what this answer meant. It could mean
"Yes, I set fire to a building," or "Yes, the property was used by
another in or affecting interstate commerce," or "Yes, I did it inten-
tionally," or some combination of these possible constructions. If Carr
answered the last question posed, "Did you do that?", his affirmative
response pertains to Carr’s own actions and not to Carr’s knowledge
of any use of the property in interstate commerce.

  Carr’s "[y]es, sir" answer is the only evidence in the Rule 11 record
supporting the interstate commerce element of his guilty plea to
Count One. The Government’s presentation of supporting evidence at
                         UNITED STATES v. CARR                          9
the plea proceeding related only that Carr intentionally set fire to a
building and that the building was used as a church and residence.
Significantly, we have recently determined that use of a building as
a church does not alone qualify it as being "used in" interstate com-
merce. United States v. Terry, 257 F.3d 366, 369 (4th Cir. 2001);
accord United States v. Odom, 252 F.3d 1289, 1296-97 (11th Cir.
2001) (finding donations from out of state, purchase of Bibles and
prayer books out of state, and indirect contributions to out-of-state
church organization "too passive, too minimal and too indirect to sub-
stantially affect interstate commerce"); United States v. Johnson, 246
F.3d 749, 750 n.1 (5th Cir. 2001) (refusing to allow "aggregation the-
ory" to support connection to interstate commerce in church arson
prosecution). At the time of Carr’s plea and sentencing, neither the
district court nor the parties enjoyed the illumination on the applicable
legal principles provided by the Jones and Terry decisions. As a
result, the court was unable to correctly apply these legal principles,
which in itself creates an abuse of discretion. Koon v. United States,
518 U.S. 81, 100 (1996). As Chief Judge Wilkinson observed in
Terry, "not all buildings, and not all churches, come within the ambit
of § 844(i)." 257 F.3d at 371. A § 844(i) plea proceeding must there-
fore adequately demonstrate that the building was in fact actively
employed in interstate commerce.7 This record fails to do so, and we
conclude that there was an insufficient factual basis for the judgment
of conviction on Count One.

                                   IV.

   Because Carr’s Rule 11(f) plea proceeding on Count One was defi-
cient in this single context, we must also determine what relief, if any,
Carr is to receive. Several alternatives are possible, such as either
  7
   The Government represents in its appellate brief that it possesses evi-
dence sufficient to establish that the mobile home Carr burned was in
fact used in interstate commerce. It asserts, for example, that he rented
a room to a non-family member, that day care services were offered for
a fee in the building, that he conducted religious and social activities
there, and that offerings from church members were collected there and
used to pay church expenses and his salary. While that evidence may be
appropriate for consideration by the district court on remand, none of it
is present in the Rule 11 record.
10                       UNITED STATES v. CARR
vacating the acceptance of his guilty plea to Count One or vacating
his judgment of conviction on that count. While we have not previ-
ously had occasion to directly address this specific question, a thor-
ough analysis of the issue was performed by the Sixth Circuit in
United States v. Tunning, 69 F.3d 107 (6th Cir. 1995). Under the
"two-remedy rule" adopted by that court, when

      the error [of the plea hearing] involves a problem with the
      district court’s state of mind, for example . . . the record
      does not include sufficient information from which the dis-
      trict court could find a factual basis for the guilty plea, the
      appropriate remedy is to remand to the district court for fur-
      ther proceedings to create the appropriate record.

Id. at 115. On the other hand, if "the error involves the defendant’s
state of mind, such as when the . . . court failed to determine that the
defendant was competent . . . the appropriate remedy is to vacate the
plea and remand so that the defendant can plead anew." Id. Since
Tunning involved the district court’s state of mind, that court vacated
Tunning’s conviction and remanded for further proceedings. This
two-tiered approach, distinguishing between the court’s state of mind
and the defendant’s state of mind, was first enunciated by the Third
Circuit in United States v. Allen, 804 F.2d 244 (3d Cir. 1986)
(remanding for further hearings on factual basis for plea when district
court may have accepted plea based on erroneous assumption).

   We, like the Sixth Circuit, see the two-remedy rule developed in
Allen as "an appropriate analytical tool" in determining the proper
remedy for a Rule 11 violation. United States v. Goldberg, 862 F.2d
101, 108 n.4 (6th Cir. 1988). A Rule 11 record that fails to reflect that
the defendant voluntarily and knowingly entered a guilty plea requires
a different cure than a record that does demonstrate the requisite
knowledge by the defendant, but fails to sufficiently reflect the dis-
trict court’s basis for accepting the plea. When the record is deficient
as to the defendant’s state of mind — and this deficiency affects the
defendant’s substantial rights — the defendant may be entitled to
plead anew.8 Where, as in this case, the sole defect in the Rule 11
  8
   Rule 11(h) of the Federal Rules of Criminal Procedure provides that
"[a]ny variance from the procedures required by this rule which does not
affect substantial rights shall be disregarded."
                        UNITED STATES v. CARR                         11
record is the lack of a sufficient factual basis for the judgment of con-
viction, however, the proper remedy is to vacate the conviction and
remand. Tunning, 69 F.3d at 115; accord United States v. Keiswetter,
860 F.2d 992, 997-98 (10th Cir. 1988) (remanding in part for written
findings on factual basis to be certified to appeals court as supplement
to record on appeal); see also United States v. Hourihan, 936 F.2d
508 (11th Cir. 1991) (allowing defendant to enter new plea when
defendant was not correctly advised of minimum mandatory sen-
tence); United States v. Parra-Ibanez, 936 F.2d 588, 598 (1st Cir.
1991) (declining to vacate plea and remanding for evidentiary hearing
when it could not be determined whether error was harmless on exist-
ing record); Montgomery v. United States, 853 F.2d 83 (2d Cir. 1988)
(reversing and remanding when defendant did not admit acts consti-
tuting illegal conspiracy).

   This situation involves the lack of a sufficient factual basis for
Carr’s guilty plea, a scenario involving, as in Tunning, "the district
court’s state of mind." 69 F.3d at 115. As we have noted, the court
in that case vacated Tunning’s conviction and remanded for further
Rule 11 proceedings. We are content to adopt and apply the two-
remedy rule explained in Tunning, and in so doing we must vacate
Carr’s conviction as to Count One and remand for further Rule 11
proceedings on that count. We will not, however, vacate Carr’s guilty
plea to that count or disturb the plea agreement between Carr and the
Government. If, in further Rule 11 proceedings, the Government can
establish a sufficient factual basis for the interstate commerce prong
of § 844(i), the district court may reinstate Carr’s judgment of convic-
tion on Count One. See United States v. Johnson, 246 F.3d 749, 752
(5th Cir. 2001) (vacating guilty plea and remanding for further pro-
ceedings on, inter alia, whether factual basis of guilty plea was suffi-
cient on interstate commerce element); United States v. Rea, 223 F.3d
741, 744 (8th Cir. 2000) (reversing conviction and remanding for
determination of whether church annex had sufficient connection to
commerce), conviction reinstated at 2001 WL 407238 (D. Minn.).

                                   V.

   Pursuant to the foregoing, we dismiss Carr’s appeal of the Guide-
lines departure issue. We vacate his judgment of conviction on Count
12                    UNITED STATES v. CARR
One, and we remand for further Rule 11 proceedings thereon and for
such other and further proceedings as may be appropriate.

                           DISMISSED IN PART AND VACATED
                                   AND REMANDED IN PART
