223 F.3d 511 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Anthony Gallagher, Defendant-Appellant.
No. 99-2879
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 3, 2000
Decided August 7, 2000

Appeal from the United States District Court for the Central District of Illinois, Urbana Division.  No. 98-CR-20074--Michael P. McCuskey, Judge.
Before Flaum, Chief Judge, and Bauer and Williams,  Circuit Judges.
Flaum, Chief Judge.


1
Defendant Anthony Gallagher  was convicted of arson in violation of 18 U.S.C.  sec. 844(i). The defendant now appeals that  conviction, arguing that the district court erred  in concluding that the government presented  evidence sufficient to establish that the barn he  was accused of maliciously damaging by fire was  then being used in interstate commerce or in an  activity affecting interstate commerce. The  defendant also appeals his sentence, contending  that the district court erroneously departed  upward from the applicable Sentencing Guidelines  range based on its conclusion that the  defendant's criminal history category did not  adequately reflect the seriousness of his past  crimes. For the reasons stated herein, we affirm  both the defendant's conviction and sentence.

I.  Background

2
For many years, Frank and Aline Herriott owned  and operated a Welsh pony business on Green Top  Farm near Seymour, Illinois. The business enjoyed  a national reputation for producing top-quality  Welsh ponies. In the early 1980s, the Herriotts  began corresponding with the defendant in  response to his inquiries about purchasing pony  carts and other equipment. At the time, and  unknown to the Herriotts, the defendant was  serving a prison sentence for a rape conviction  in Pennsylvania.


3
In 1986, Mr. Herriott died, and Mrs. Herriott  continued to operate the Welsh pony business with  the assistance of her daughter, Marjorie Plotner,  and Marjorie's husband, Gene Plotner. Mrs.  Herriott also continued corresponding with the  defendant. In 1990, Mrs. Herriott married the  defendant while he was on parole in Pennsylvania.  Mrs. Herriott then arranged to have the  defendant's parole transferred to Illinois so  that the two could live together on Green Top  Farm.


4
After the defendant arrived at Green Top Farm,  he and Mrs. Herriott began selling her assets. In  total, the couple sold approximately forty  ponies, and the remainder of the herd went into  decline due to a lack of care. In addition, Mrs.  Herriott sold several homes that had been in the  family for generations. Mrs. Plotner believed  that the defendant convinced her mother to sell  the homes and the ponies and was keeping the  money for himself, and that the defendant was  seeing another woman. When Mrs. Plotner informed  her mother of these suspicions, Mrs. Herriott  refused to believe her. Eventually, the  relationship between Mrs. Herriott and Mrs.  Plotner deteriorated to the point that the  Plotners were no longer welcome at Green Top  Farm.


5
In the fall of 1991, Mrs. Plotner called the  local sheriff's office and requested that a  deputy be sent to Green Top Farm to check on her  mother. Mrs. Plotner testified that she requested  this visit because she was concerned about her  mother's well-being in light of the defendant's  criminal history and the age difference between  the two (approximately 40 years). Two sheriff's  deputies were sent to Green Top Farm, where Mrs.  Herriott informed them that she was fine and  instructed them not to return.


6
Shortly thereafter, Mrs. Plotner received a  telephone call from her mother asking Mrs.  Plotner to meet her at Green Top Farm. When Mrs.  Plotner arrived at the farm, her mother met her  on the front steps. According to Mrs. Plotner,  Mrs. Herriott stated: "If you guys don't leave me  alone, you're going to get me killed." The  defendant observed this conversation from a  distance, and Mrs. Plotner stated that it was her  belief that her mother was afraid of the  defendant.


7
In November 1991, the defendant left Green Top  Farm and moved in with Irene Duffy, the real  estate agent Mrs. Herriott had employed to sell  her houses. Later that month, the defendant  returned to Green Top Farm with Duffy's first  cousin, Wes Becker. During this visit Mrs.  Herriott gave the defendant money, but informed  him that it was the last payment he would  receive. According to Becker, the defendant  called Mrs. Herriott an "ugly bitch" as they were  driving away.


8
On December 2, 1991, Mrs. Plotner telephoned  her mother and left a message on her answering  machine. At around 3:30 p.m. that same day, the  Plotners went to Green Top Farm to do some  chores. They noticed that Mrs. Herriott's car was  in the driveway and assumed that the defendant  had taken her somewhere. At about 4:30 or 4:45  p.m., the Plotners finished their chores at Green  Top Farm and returned home. Mrs. Plotner again  attempted to contact her mother by telephone, but  was unsuccessful.


9
At about 6:00 p.m. that day, the defendant  telephoned the Plotners and asked if Mrs. Plotner  had seen her mother. Mrs. Plotner testified that  this phone call was highly unusual given the  mutual dislike that existed between the Plotners  and the defendant. Mrs. Plotner told the  defendant that she had not seen her mother that  day. Mr. and Mrs. Plotner then immediately drove  to Mrs. Herriott's home.


10
When the Plotners arrived at Green Top Farm,  they used their key to open a locked door on the  east side of the house. Mrs. Plotner noticed that  the alarm system had not been turned on. Mrs.  Plotner also saw that immediately inside the door  to the house was an antique straight-back chair  perched on top of a stool. Mrs. Plotner stated  that she found this unusual because her mother  had once broken her shoulder and would not climb  on anything in order to reach something on a high  shelf. Mrs. Plotner testified that she could  think of no reason why the chair would be in that  position.


11
When they proceeded into the house, Mr. and  Mrs. Plotner found Mrs. Herriott lying  unconscious on the couch in the living room. Mrs.  Herriott was wearing a bathrobe with nothing on  underneath. Mrs. Plotner testified that she  regarded this as strange because her mother  usually wore her flannel nightgown and never  lounged around the house in a bathrobe. Mrs.  Plotner also testified that she found it unusual  that Mrs. Herriott was not wearing her glasses,  and that her clothes were strewn across a rocking  chair in the bedroom. The paramedics were called,  and Mrs. Herriott was taken to a hospital. She  remained in a coma until she died on December 19,  1991.


12
During the period in which Mrs. Herriott was in  a coma, Mrs. Plotner was appointed her temporary  guardian. Mrs. Plotner also hired a private  detective to investigate her mother's death. On  December 10, 1991, the detective located Mrs.  Herriott's glasses in the driveway of the house  next to the garage. One of the lenses was found  with the glasses, and the other was found  approximately one hundred feet away. Becker  testified that when he accompanied the defendant  to Green Top Farm on December 21, 1991 to pick up  some of the defendant's clothes, the defendant  located the spot on the driveway where Mrs.  Herriott's glasses were found and said, "This is  where they found her glasses."


13
Before her death, Mrs. Herriott transferred most  of her real property to a revocable trust. Under  the terms of that trust, Green Top Farm was  conveyed to Mrs. Plotner subject to a lifetime  leasehold to the defendant. The defendant's  leasehold was to terminate if the defendant  remarried or failed to maintain the farm. Mrs.  Herriott also left the defendant a half interest  in her pony herd, with the remaining half going  to Mrs. Plotner. The will provided that if Mrs.  Plotner and the defendant could not agree on the  disposition of the animals, the herd would be  sold and the profits divided equally between the  two.


14
On January 3, 1992, a complex of four barns on  Green Top Farm burned down, killing five ponies  and destroying approximately four thousand bales  of straw. The barns were uninsured. On December  18, 1998, the defendant was charged in a one-  count indictment with arson, alleging that the  defendant maliciously damaged by fire the barns  located at Green Top Farm.


15
The defendant was convicted of arson by a jury  on March 26, 1999. Prior to his sentencing on  that conviction, the government filed a notice of  its intent to ask for an upward departure from  the otherwise applicable Sentencing Guidelines  range based upon its belief that this range did  not adequately reflect the defendant's past  criminal history. Among other things, the  government sought a departure based on its  contention that the defendant murdered Mrs.  Herriott.


16
During the sentencing hearing, a forensic  pathologist testified that Mrs. Herriott died  from a blow to the head, and not from a fall or  other accidental forces. The district court  concluded from this testimony that Mrs. Herriott  was murdered, and noted that the defendant had  both the motive and opportunity to kill her.  After considering the evidence surrounding the  alleged crime against the backdrop of the  defendant's motive and opportunity, the district  court determined, by a preponderance of the  evidence, that the defendant murdered Mrs.  Herriott. The district court then departed upward  three criminal history points based on this  finding, and the defendant was sentenced to 120  months in prison. The defendant now appeals.

II.  Analysis
A.  Sufficiency of the Evidence

17
The defendant first argues that the government  failed to meet its burden of proof as to the  interstate commerce element of the arson crime of  which he was charged and convicted. See United  States v. Zabic, 745 F.2d 464, 474 (7th Cir.  1984) (stating that the interstate commerce  element of arson must be established beyond a  reasonable doubt). The federal arson statute  makes it illegal for an individual to  "maliciously damage[ ] or destroy[ ], or attempt[  ] to damage or destroy, by means of fire . . .  any building, vehicle, or other real or personal  property used in interstate . . . commerce or in  any activity affecting interstate . . . commerce  . . . ." 18 U.S.C. sec. 844(i). According to the  defendant, the evidence the government presented  at trial was insufficient to establish beyond a  reasonable doubt that the barns he was accused of  maliciously damaging by fire were used in  interstate commerce or in an activity affecting  interstate commerce.


18
In support of his insufficiency of the evidence  argument, the defendant contends that the horse  business at Green Top Farm ended, and the barns  were removed from interstate commerce, upon the  death of Mrs. Herriott. The defendant first notes  that given his lifetime leasehold interest in the  farm, the defendant had the exclusive right to  use the barns in question and had no intention of  continuing the pony business or of using those  barns in interstate commerce. The defendant also  argues that the disposition of the pony herd was  left to him and Mrs. Plotner and, because the two  were never going to agree on the proper way of  managing the ponies, the pony herd was going to  be sold with the profits split between the two  parties. The defendant contends that because he  did not intend to use the barn in interstate  commerce during the course of his leasehold, and  because the pony business was going to be  dissolved absent an unlikely agreement to the  contrary between himself and Mrs. Plotner, Mrs  Herriott's death effectively removed the barns  from interstate commerce.


19
The defendant faces a heavy burden in  attempting to demonstrate that the government did  not meet its burden of proof as to the interstate  commerce element of his arson conviction. "We  review questions of sufficiency of the evidence  'in the light most favorable to the government  and ask whether any rational trier of fact could  find the essential elements of the crime beyond  a reasonable doubt.'" United States v.  Richardson, 208 F.3d 626, 631 (7th Cir. 2000)  (quoting United States v. Rogers, 89 F.3d 1326,  1334 (7th Cir. 1996)). "Only when the record  contains no evidence, regardless of how it is  weighed, from which the jury could find guilt  beyond a reasonable doubt, may an appellate court  overturn the verdict." United States v. Lundy,  809 F.2d 392, 396 (7th Cir. 1987) (quoting  Brandom v. United States, 431 F.2d 1391, 1400  (7th Cir. 1970)). Moreover, in order to satisfy  the interstate commerce element of 18 U.S.C. sec.  844(i), the government need only establish that  the arson in question had a minimal effect on  interstate commerce. See United States v. Hicks,  106 F.3d 187, 189 (7th Cir. 1997); United States  v. Martin, 63 F.3d 1422, 1426 (7th Cir. 1995);  United States v. Menzer, 29 F.3d 1223, 1230 (7th  Cir. 1994). Because of the deferential review of  sufficiency of the evidence claims and the low  threshold for establishing the interstate  commerce element, the defendant must demonstrate  that no rational trier of fact could have found  beyond a reasonable doubt that the barns the  defendant was accused of maliciously damaging by  fire had even a minimal effect on interstate  commerce.


20
After a review of the record, we conclude that  the government proved a sufficient nexus between  the defendant's arson and interstate commerce.  Although the defendant may be correct that the  pony business was unlikely to continue as a  viable commercial entity under the stewardship of  the defendant or Mrs. Plotner, that assertion  does not establish that the barns were removed  from interstate commerce upon the death of Mrs.  Herriott. This is not a case, as the defendant  suggests, where the barns had only a past  connection to interstate commerce. See, e.g.,  United States v. Gaydos, 108 F.3d 505 (3d Cir.  1997) (finding no connection to interstate  commerce where a rental property had been removed  from the rental market and where there was no  intent to resume renting the property). Rather,  even if we assume that the business was likely to  be dissolved following Mrs. Herriott's death, the  key point is that it had not been dissolved at  the time the arson was committed and consequently  there was no cessation of business activity. See  United States v. Wing, 104 F.3d 986 (7th Cir.  1997) (finding a sufficient connection to  interstate commerce where the property destroyed  received out-of-state shipments of supplies);  Martin, 63 F.3d at 1427-28 (holding that the  destruction of a rental property that was  presently unoccupied but still available for rent  satisfied the interstate commerce element of the  arson statute). After the fire, much of the pony  herd was sold at a public auction. In addition,  at the time the defendant set fire to the barns  in question, those barns sheltered breeding  stallions that were also to be sold. In short, at  the time the defendant set fire to the barns,  those barns were still actively employed in the  conduct of a pony business that was national in  scope. See Jones v. United States, 120 S.Ct.  1904, 1909-10 (2000) (stating that the central  inquiry under the federal arson statute is  whether the damaged property is being actively  employed in a commercial enterprise). In these  circumstances, we cannot conclude that no  rational trier of fact could have determined that  the government established beyond a reasonable  doubt the interstate commerce element of the  defendant's arson.

B.  The Sentencing Departure

21
The defendant next challenges the district  court's decision to depart upward from the  Sentencing Guidelines range otherwise applicable  to the defendant's conduct. During the  defendant's sentencing hearing, the district  court determined that the government proved by a  preponderance of the evidence that the defendant  committed past uncharged crimes, including the  murder of Mrs. Herriott. The district court  therefore departed upward from the applicable  Sentencing Guidelines range so that the sentence  would adequately reflect these past criminal  activities. The defendant appeals this departure,  arguing that the district court erred in finding  that the government proved by a preponderance of  the evidence that the defendant murdered Mrs.  Herriott.


22
The Sentencing Guidelines permit a district  court to depart upward from the otherwise  applicable sentencing range "[i]f reliable  information indicates that the criminal history  category does not adequately reflect the  seriousness of the defendant's past criminal  conduct or the likelihood that the defendant will  commit other crimes . . . ." U.S.S.G. sec. 4A1.3;  see also 18 U.S.C. sec. 3661 ("No limitation  shall be placed on the information concerning the  background, character, and conduct of a person  convicted of an offense which a court of the  United States may receive and consider for the  purpose of imposing an appropriate sentence.").  In order to justify such a departure, the  government must prove the alleged past criminal  conduct on which the departure is based by a  preponderance of the evidence. See United States  v. Klund, 37 F.3d 1249, 1252 (7th Cir. 1994). Our  review of the district court's decision to depart  upward is deferential, see United States v.  Fonner, 920 F.2d 1330, 1332 (7th Cir. 1990)  (citing United States v. Marshall, 908 F.2d 1312,  1326 (7th Cir. 1990) (en banc)), and "'we give  considerable leeway to a district court's  determination of the criminal history category  that most accurately reflects the defendant's  true criminal history.'" United States v. Brown,  999 F.2d 1150, 1153 (7th Cir. 1993) (quoting  United States v. Schweihs, 971 F.2d 1302, 1319  (7th Cir. 1992)).


23
In this case, the district court departed  upward from a criminal history category of V to  a criminal history category of VI, and from an  offense level of 22 to an offense level of 24,  based on its conclusion that the defendant  committed past uncharged crimes, including the  murder of Mrs. Herriott. In concluding that the  defendant murdered Mrs. Herriott, the district  court first found that the defendant had both the  motive and the opportunity to commit the crime.  As to motive, the district court stated that the  defendant had two separate reasons for murdering  Mrs. Herriott to profit financially from the  disposition of Mrs. Herriott's estate and to  prevent Mrs. Herriott from revealing the fraud  that he perpetrated against her. In regard to  opportunity, the district court found that the  defendant could not account for his whereabouts  during the evening of December 1, 1991 and the  morning of December 2, 1991, the time during  which Mrs. Herriott was allegedly attacked. In  light of the defendant's multiple motives for  murdering Mrs. Herriott, and in consideration of  the fact that the defendant was the only suspect  with the opportunity to commit the crime, the  district court determined that the physical and  testimonial evidence linking the defendant to the  crime was sufficient to prove by a preponderance  of the evidence that he committed the murder.


24
The physical and testimonial evidence introduced  at trial regarding Mrs. Herriott's death included  testimony from a forensic pathologist indicating  that the cause of Mrs. Herriott's death was a  blow to the head. The district court also  considered evidence that the door was locked when  Mrs. Plotner arrived at the house and that the  alarm was turned off, and it concluded that the  murder was committed by someone who, like the  defendant, possessed a key to the house. The  district court noted the unusual state of the  house, and the appearance that someone had staged  the scene to look like an accident, and found  that these efforts indicated that the individual  involved wished to cover up the murder as if he  expected to be a suspect. Lastly, the district  court weighed the testimony of Wes Becker and  found that the defendant had independent  knowledge of the location at which Mrs.  Herriott's glasses were found in the driveway.  This evidence, combined with the defendant's  motive and opportunity, was enough to convince  the district court that the government proved by  a preponderance of the evidence that the  defendant murdered Mrs. Herriott.


25
In reviewing the district court's decision to  depart upward, we "overturn a factual finding  only if we are firmly convinced that a mistake  was made." United States v. Spears, 159 F.3d  1081, 1088 (7th Cir. 1998). Because we do not  find any clear error in the district court's  findings of fact, we consider only whether the  district court abused its discretion in finding  by a preponderance of the evidence that the  defendant murdered Mrs. Herriott. See United  States v. Trigg, 119 F.3d 493, 502 (7th Cir.  1997) (stating that departures in the criminal  history category are generally reviewed for an  abuse of discretion). After a review of the  factual record, we agree with the district court  that reliable evidence indicates that Mrs.  Herriott was murdered, and that the defendant had  both clear motive and opportunity to commit the  crime. Furthermore, the physical evidence  indicates that the crime was committed by someone  close to Mrs. Herriott, and the defendant's  knowledge of the location at which the glasses  were found links him to the crime. Against this  factual backdrop, and in light of our deferential  standard of review, we cannot conclude that the  district court erred in departing upward from the  otherwise applicable sentencing range based on  its conclusion that the defendant's criminal  history category did not adequately reflect his  past crimes.

III.  Conclusion

26
We hold that the government introduced  sufficient evidence to establish the interstate commerce element of the defendant's crime of  arson and to prove by a preponderance of the  evidence that the defendant murdered Mrs.  Herriott. We therefore AFFIRM both the defendant's  conviction and sentence.

