                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 17-1019
                                  _____________

                        UNITED STATES OF AMERICA

                                         v.

                              ANDREA FORSYTHE,

                                        Appellant
                                  _____________


                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                      District Court No. 2-14-cr-00291-001
                  District Judge: The Honorable Cathy Bissoon

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              September 25, 2017

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

                             (Filed: October 12, 2017)
                             _____________________

                                    OPINION
                             _____________________





 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SMITH, Chief Judge.

      Andrea Forsythe burned down a house she was renting in Sturgeon,

Pennsylvania, in an attempt at insurance fraud. She conditionally pleaded guilty

to, inter alia, one count of malicious destruction of property by fire under 18

U.S.C. § 844(i). She now appeals, arguing that Congress lacks the power under the

Commerce Clause of the United States Constitution to criminalize the destruction

of a Pennsylvania residence that Forsythe rented from a fellow Pennsylvanian.

      The Government argues that Forsythe’s conditional guilty plea waived her

right to appeal this issue, but we have held that arguments that Congress lacked

power to criminalize a given defendant’s actions under the Commerce Clause are

jurisdictional issues that cannot be waived.

      Reaching the merits of that constitutional challenge, we conclude that

Forsythe’s argument fails. Russell v. United States, 471 U.S. 858 (1985), squarely

held that § 844(i) constitutionally criminalizes burning rented homes. Forsythe

argues that United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison,

529 U.S. 598 (2000), and Jones v. United States, 529 U.S. 848 (2000), have eroded

the authority of Russell. Essentially, Forsythe acknowledges that Russell is on

point and asks us to overrule it. As we have repeatedly explained, we must follow

apposite Supreme Court cases until the Supreme Court itself overrules them.

Moreover, Forsythe’s cases do not contradict Russell. Section 844(i) as applied to
                                          2
Forsythe is a constitutional exercise of power under the Commerce Clause

because, among other things, it clearly regulates economic activity and contains a

jurisdictional element. To the extent Forsythe raised a statutory argument, it also

fails under Russell.

                                 BACKGROUND
      Because Forsythe stated in open court that she agreed with the

Government’s summary of the facts during her guilty plea colloquy, the facts here

are uncontested. See App. 79–83.

      Forsythe was a nanny who stole a diamond necklace from her employer.

She lived in a rented house in Sturgeon, Pennsylvania. She then took out a renter’s

insurance policy, pawned the necklace, burned down her rented house, and made a

claim on her policy, including the necklace as though it had been destroyed in the

fire. A few months later, Forsythe admitted that she set fire to the house and that

she pawned the jewelry before starting the fire.

      Forsythe was indicted and ultimately pleaded guilty to malicious destruction

of property by fire in violation of 18 U.S.C. § 844(i).1 That statute reads in

relevant part:

             Whoever maliciously damages or destroys, or attempts to
             damage or destroy, by means of fire or an explosive, any

1
 Forsythe also pleaded guilty to wire fraud under 18 U.S.C. § 1343. Because
Forsythe does not challenge that conviction, we do not discuss it further.
                                          3
             building, vehicle, or other real or personal property used in
             interstate or foreign commerce or in any activity affecting
             interstate or foreign commerce shall be imprisoned for not
             less than 5 years and not more than 20 years, fined under this
             title, or both. . . .

18 U.S.C. § 844(i) (emphasis added). In 1985, a unanimous Supreme Court held in

Russell that “buildings used in interstate commerce” include rented residential

property. See Russell, 471 U.S. at 862 (“[T]he statute . . . applies to property that

is ‘used’ in an ‘activity’ that affects commerce. The rental of real estate is

unquestionably such an activity.”). In so doing, the Court impliedly held that

§ 844(i) was constitutional as applied to rented residential property and explained

that the relevant language in § 844(i) “expresses an intent by Congress to exercise

its full power under the Commerce Clause.” Id. at 859.

      After indictment, Forsythe filed a motion to dismiss, arguing that a troika of

cases—United States v. Lopez, 514 U.S. 549 (1995), United States v. Morrison,

529 U.S. 598 (2000), and Jones v. United States, 529 U.S. 848 (2000)—“compel

the conclusion that the jurisdictional element of the federal arson statute has not

been satisfied in this case.” App. 31. Specifically, Forsythe argued that Congress

did not have the power to criminalize the destruction of the rented home because

“[t]he intrastate ‘rental’ of a residential property” did not bring the house within




                                           4
Congress’s power to regulate under the Commerce Clause. App. 31.2

      The District Court denied Forsythe’s motion: “The government’s proffer of

its intended evidence is sufficient to establish the interstate commerce element of

the charged offense under those cases. It must be given an opportunity to present

such evidence to the jury. Defendant has preserved her right to seek relief on

appeal.” App. 2 (United States v. Forsythe, No. 2:14-cr-00291-CB-1 (W.D. Pa.

Mar. 23, 2016), ECF No. 41).

      Forsythe subsequently entered a conditional plea of guilty under Rule

11(a)(2) of the Federal Rules of Criminal Procedure. Forsythe’s conditional plea

stated:

             As a condition of her guilty plea, Andrea Forsythe may take
             a direct appeal from her conviction limited to the following
             issue: Was the residential structure located at [. . .] McVey
             Street in Sturgeon, Pennsylvania being used in interstate
             commerce or in an activity affecting interstate commerce
             within the meaning of 18 U.S.C. § 844(i) on or about June 23,
             2014?

Appellee Br. at 11 (emphasis added). The agreement further specified that the

“reservation of the right to appeal the basis of the specified issue does not include



2
 Arguably, part of the motion to dismiss made a statutory interpretation argument.
See App. 40 (“Construing the federal arson statute consistent with the Supreme
Court’s approach in Jones, § 844(i) does not reach rental residential property
where the rental activity is exclusively intrastate.”). As discussed below, this
argument is meritless.
                                          5
the right to raise issues other than the issue specified.” Id. Following her plea,

Forsythe was sentenced to sixty months’ imprisonment and ordered to pay roughly

$179,000 in restitution payments. This timely appeal followed.

               JURISDICTION AND STANDARD OF REVIEW
      The District Court had jurisdiction under 18 U.S.C. § 3231. We have

jurisdiction under 28 U.S.C. § 1291.

      We review all three issues—waiver, the as-applied constitutional challenge,

and any statutory interpretation issue—de novo because they are legal issues. See

United States v. Hardwick, 544 F.3d 565, 570 (3d Cir. 2008) (“Because the

interpretation of a contract generally is a question of law, we review the District

Court’s interpretation of the terms of the waiver [in the plea agreement] de

novo.”); United States v. Torres, 383 F.3d 92, 95 (3d Cir. 2004) (explaining that

we review legal issues such as statutory construction and constitutional issues de

novo).

                                    ANALYSIS
      The Government argues that Forsythe’s constitutional challenge was

unpreserved by her conditional plea. We have held a defendant’s claim that

Congress lacked power under the Commerce Clause to criminalize his or her

behavior is jurisdictional and therefore cannot be waived.

      However, Forsythe’s constitutional challenge is meritless. Forsythe wants
                                          6
us to declare Russell a dead letter. But, we, as an “inferior Court[],” U.S. Const.

art. III, § 1, plainly lack the power to overrule the Supreme Court’s decision in

Russell, even had Forsythe’s arguments been persuasive. We further explain why

Forsythe’s argument is not persuasive.

         Finally, to the extent Forsythe made a statutory argument on appeal, it, too,

is meritless in light of Russell and Jones’s approval of Russell.

I. Forsythe Could Not Waive Her As-Applied Constitutional Challenge
         Forsythe’s constitutional challenge to § 844(i) goes well beyond the

“meaning of 18 U.S.C. § 844(i),” an issue that might have been explicitly

preserved by her plea. Indeed, on reply, Forsythe essentially admits that she wants

to go beyond the text of the plea to reach the constitutional issue.3

         Forsythe offers two reasons why the constitutional argument comes within

the conditional plea: (1) the plea was meant to track her motion to dismiss and (2)

the constitutional issue is jurisdictional and therefore cannot be waived. We need

not reach the first argument, as the second has merit.

         Forsythe argues that she could not waive her as-applied constitutional

challenge because it goes to the trial court’s jurisdiction. Under Third Circuit law,

that is correct. In United States v. Whited, we held that a criminal defendant who


3
    See Reply Br. at 4.

                                            7
argued in her pretrial motion that a criminal statute exceeded the limits of the

Commerce Clause as applied to her could raise the same issue on appeal even

though she “did not preserve her right to appeal the pretrial motion by entering a

conditional guilty plea.” 311 F.3d 259, 262 (3d Cir. 2002) (citing United States v.

Rodia, 194 F.3d 465, 469 (3d Cir. 1999)).4 A fortiori, here, Forsythe can still raise

her as-applied Commerce-Clause challenge even though it is not expressly

preserved by her conditional guilty plea.

      Therefore, we proceed to consider Forsythe’s constitutional argument.

II. Lopez, Morrison, and Jones Do Not Alter Our Duty to Adhere to Russell
      As noted above and as we have held previously, Russell held that Congress

constitutionally could and did regulate the destruction of rental property in

§ 844(i). See United States v. Gaydos, 108 F.3d 505, 509 (3d Cir. 1997) (“We

believe that Russell’s interpretation of § 844(i), and its holding, that the statute



4
  We have also twice held that facial challenges that criminal statutes went beyond
Congress’s power under the Commerce Clause are jurisdictional issues that cannot
be waived. See United States v. Bishop, 66 F.3d 569, 572 n.1 (3d Cir. 1995)
(“Although Bishop pleaded guilty without reserving his right to appeal his motion
to dismiss the indictment because of the alleged constitutional invalidity of section
2119, see Fed. R. Crim. P. 11(a)(2), we have jurisdiction over his appeal of this
issue because it goes to the jurisdiction of the district court.”); United States v.
Rodia, 194 F.3d 465, 469 (3d Cir. 1999) (“Rodia did not preserve his right to
appeal by entering a conditional guilty plea. See Fed. R. Crim. P. 11(a)(2).
However, since the issue presented goes to the jurisdiction of the District Court, we
have jurisdiction over his appeal.”).
                                            8
constitutionally regulates arson of business property that satisfies the requisite

jurisdictional element, is still authoritative precedent.”). Forsythe argues that

Lopez, Morrison, and Jones undermined Russell.

      Even assuming that Forsythe’s argument were correct, we are bound to

follow the Supreme Court’s decision in Russell. See, e.g., United States v. Extreme

Assocs., Inc., 431 F.3d 150, 155–56 (3d Cir. 2005) (stressing, at length, that the

Third Circuit cannot ignore a Supreme Court case directly on point unless that case

has been completely abrogated); Jerome Frank, Words and Music: Some Remarks

on Statutory Interpretation, 47 Colum. L. Rev. 1259, 1271 (1947) (“A court like

that on which I sit, an intermediate appellate court, is, vis-a-vis the Supreme Court,

‘merely a reflector, serving as a judicial moon.’” (quoting Choate v. Comm’r, 129

F.2d 684, 686 (2d Cir. 1942))).

      For instance, more than fifteen years ago, a criminal defendant argued that,

under Lopez, Morrison, and Jones, Congress did not have the power to punish

defendants under the felon-in-possession statute, 18 U.S.C. § 922(g)(1). See

United States v. Singletary, 268 F.3d 196, 197, 200 (3d Cir. 2001). As in this case,

the Supreme Court had ruled that the statute was constitutional before Lopez,

Morrison, and Jones. See Singletary, 268 F.3d at 200 (describing Scarborough v.

United States, 431 U.S. 563 (1977)). Discussing the defendant’s argument that

Lopez, Morrison, and Jones required us to disregard the Court’s apposite
                                           9
precedent, we explained:

             [E]ven if there were merit to Singletary’s argument that the
             Supreme Court’s trinity of Commerce Clause decisions have
             somehow weakened the precedential value of Scarborough,
             we may not precipitate its decline. The Supreme Court itself
             has admonished lower courts to follow its directly applicable
             precedent, even if that precedent appears weakened by
             pronouncements in its subsequent decisions, and to leave to
             the Court itself “the prerogative of overruling its own
             decisions.”

Id. at 205 (quoting Agostini v. Felton, 521 U.S. 203, 237 (1997)). So, too, we

cannot “precipitate [the] decline” of Russell.

      In any event, there does not appear to be merit to Forsythe’s argument that

Lopez, Morrison, or Jones significantly undermined Russell.5 Lopez and Morrison

show that Congress’s power to criminalize certain behavior is limited. In Lopez,

the Supreme Court held that Congress did not have authority under the Commerce

Clause to criminalize the possession of a firearm in a school zone “because the

statute neither regulated a commercial activity (possession of a gun near a school)

nor contained a requirement that the possession of a firearm in a school zone be

connected in any way to interstate commerce.” Singletary, 268 F.3d at 200 (citing

Lopez, 514 U.S. at 551, 567–68). In Morrison, the Supreme Court held that



5
 It is notable that Forsythe could not point to any court that has held that Russell is
no longer controlling precedent even though it has been seventeen years since
Morrison and Jones were decided.
                                          10
Congress did not have power under the Commerce Clause to pass the Violence

Against Women Act because it “contain[ed] no jurisdictional element establishing

that the federal cause of action is in pursuance of Congress’ power to regulate

interstate commerce” and because the connection between regulating violence

against women and interstate commerce was too attenuated. See Morrison, 529

U.S. at 613–18; Singletary, 268 F.3d at 202–03.

      We previously held that Russell remained binding precedent following

Lopez, see Gaydos, 108 F.3d at 509 (“[W]e join the other circuits which have

concluded that § 844(i) remains constitutionally viable after Lopez.”), and, as

briefly summarized above, Morrison is very similar to Lopez, see Whited, 311 F.3d

at 266 (noting that Morrison “echoed both the holding of Lopez and its underlying

reasoning”). Therefore, there is no reason to believe either case weakens Russell.

      Indeed, this case is decidedly different from the criminalization of gun

possession and gender-motivated violence at issue in Lopez and Morrison,

respectively, because as Russell explained, there cannot be any doubt that renting

property is economic activity and because § 844(i) has a jurisdictional element.

See, e.g., Delaware Cty. v. Fed. Hous. Fin. Agency, 747 F.3d 215, 227 (3d Cir.

2014) (“The lesson to be drawn from Lopez and Morrison is that whether the

activity is economic in nature is central to our analysis . . . .”); United States v.

Walker, 657 F.3d 160, 179 (3d Cir. 2011); see also United States v. Kukafka, 478
                                            11
F.3d 531, 535–36 (3d Cir. 2007) (“[A] court should consider: (1) ‘the economic

nature of the regulated activity;’ (2) ‘a jurisdictional element limiting the reach of

the law to a discrete set of activities that additionally has an explicit connection

with or effect on interstate commerce;’ (3) ‘express congressional findings

regarding the effects upon interstate commerce of the activity in question;’ and (4)

‘the link between the regulated activity and interstate commerce.’” (quoting United

States v. Gregg, 226 F.3d 253, 262 (3d Cir. 2000))).

      Not only is there no reason to believe that Lopez or Morrison calls Russell

into question, but there is likewise no reason to believe that Jones deprecates

Russell. 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).” Jones, 529 U.S. at 850–51. The Jones

court explicitly distinguished the case before it from Russell because the property

was owner-occupied. See Jones, 529 U.S. at 854 (“We now confront a question

that was not before the Court in Russell: Does § 844(i) cover property occupied

and used by its owner not for any commercial venture, but as a private

residence.”). Indeed, many read Jones as reaffirming Russell. See United States v.

Hang Le-Thy Tran, 433 F.3d 472, 477 (6th Cir. 2006) (“The Supreme Court’s later

ruling in Jones . . . did not disturb the Court’s holding in Russell that the arson
                                           12
statute applies to rental properties.”); United States v. Logan, 419 F.3d 172, 180

(2d Cir. 2005) (“[T]he Supreme Court cited Russell with approval in Jones, which

was decided after Morrison and Lopez.”); United States v. Grassie, 237 F.3d 1199,

1208 (10th Cir. 2001) (“Indeed, the Court relied upon its prior decision in

Russell . . . .”); Groome Resources Ltd., L.L.C. v. Parish of Jefferson, 234 F.3d

192, 207 (5th Cir. 2000) (“This recognition was reaffirmed in the recent Jones

decision.”); id. at 207 n.23 (“In the instant case, the house is functioning as a rental

unit for disabled individuals, which under Russell can be regulated under the

commerce power.”).

      Because Russell is directly on point and the Supreme Court has never

expressly overruled it, we must follow it. Even if we could consider whether

Lopez, Morrison, and Jones eroded Russell, we would conclude that Russell

remains correct.

III. To the Extent Forsythe Made Any Purely Statutory Argument, It Fails
Because Jones Adhered to Russell
      To the extent that Forsythe argued that the statutory interpretation in Jones

would change our interpretation of Russell, she is wrong. As noted above, Jones

took pains to stress its consistency with Russell. See, e.g., Jones, 529 U.S. at 856

(“Our decision in Russell does not warrant a less ‘use’-centered reading of

§ 844(i).”). Because the Supreme Court’s construction in Russell is binding, we

                                           13
hold that § 844(i) reaches the destruction of residential property rented by one

Pennsylvanian from another.

                                    CONCLUSION
         For the reasons stated above, we will affirm the judgment of the District

Court.




                                           14
