                                                                           [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS
                        FOR THE ELEVENTH CIRCUIT

                           ________________________                  FILED
                                                            U.S. COURT OF APPEALS
                                  No. 96-3621                 ELEVENTH CIRCUIT
                             Non-Argument Calendar                 08/31/98
                           ________________________            THOMAS K. KAHN
                                                                    CLERK
                         D. C. Docket No. 3:96-CR-21/RV


UNITED STATES OF AMERICA,
                                                                     Plaintiff-Appellee,

                                      versus

CHRISTOPHER DASCENZO
a.k.a.
Christopher Marcus Dascenzo,
                                                                   Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                        for the Northern District of Florida
                          _________________________

                                (August 31, 1998)


Before EDMONDSON, BLACK and HULL, Circuit Judges.
EDMONDSON, Circuit Judge:

    Defendant-Appellant Christopher Marcus Dascenzo appeals

his convictions for various firearms and explosives offenses,

violating 18 U.S.C. §844(i), 18 U.S.C. 924(c)(1), and 26 U.S.C.

§§5841, 5845, 5861(d), and 5871. Only Defendant’s challenges

about section 844(i) warrant discussion.1 No reversible error has

been shown; we affirm.

    The government introduced evidence that three pipe

bombs, comprising the destructive device, were placed by

Defendant outside the front gate (near the front door) of a home.

One of the three bombs detonated while the bomb squad

attempted to render it safe. The resulting explosion destroyed

the fence, cracked the concrete area where it detonated, and

sent fragments through the wall of the house. The home was




    1
     Defendant raises several issues on appeal. All lack
merit, but most are not discussed in this opinion.
                               -2-
used as a rental property and was being rented when the bomb

was found.

    Section 844(i) makes it a crime maliciously to damage or

destroy, or attempt to damage or destroy, by an explosive, a

building “used in interstate or foreign commerce or in any

activity affecting interstate or foreign commerce.” Defendant

claims that the government failed to present sufficient evidence

that the home damaged by the pipe bomb had a sufficient effect

on interstate commerce.2

    In Russell v. United States, 105 S.Ct. 2455, 2457 (1985), the

Supreme Court was faced with an issue of statutory

construction. In the course of construing section 844(i), the

Court took into account that Congress wished to use its full


    2
      Defendant also claims that the government failed to
establish that the pertinent home was rental property. But
the government introduced testimony from the owner of the
home that he rented the house to others. The government
also presented the testimony of the person renting the house
at the time of the criminal act. Defendant presented no
contrary evidence.
                               -3-
powers under the Commerce Clause. The Court concluded that

Congress, in enacting section 844(i), “intended to protect all

business property, as well as some additional property that

might not fit that description, but perhaps not every private

home.” Deciding that a two-unit apartment used as a rental

property falls within section 844(i), the Supreme Court wrote:

           By its terms, however, the statute only applies to
      property that is “used” in an “activity” that affects
      commerce. The rental of real estate is unquestionably
      such an activity. . . . [T]he local rental of an apartment
      unit is merely an element of a much broader
      commercial market in rental properties.                The
      congressional power to regulate the class of activities
      that constitute the rental market for real estate
      includes the power to regulate individual activity
      within that class.

Id.

      Because the government in the present case introduced

evidence from which a rationale trier of fact could conclude that

the building where the bomb was placed was used as a rental

property, Russell points to an affirmance. Defendant argues,


                                 -4-
however, that United States v. Lopez, 115 S.Ct. 1624 (1995),

controls this case. He says that after Lopez a “substantial

effect” on interstate commerce must be proved for the property

involved in each criminal act.

     In Lopez, the Supreme Court was confronted with a facial

challenge to the constitutionality of the Gun-Free School Zones

Act. Thus, by relying on Lopez, Defendant’s challenge to the

sufficiency of the evidence must necessarily include a

constitutional challenge: Defendant, in effect, challenges the

statute’s constitutionality as applied to him.3 As such, this

constitutional challenge is a question of law to be decided by the


     Defendant frames his issue as one of sufficiency of the
     3


evidence and asserts that he is not challenging the
constitutionality of the statute. But because of his reliance
on Lopez, we interpret Defendant, in effect, to be arguing
both (1) that insufficient evidence existed upon which the
court could conclude that the statute is constitutional as
applied to Defendant -- that is, Congress lacked the
constitutional authority under the Commerce Clause to apply
the statute to Defendant’s crime -- and (2) that insufficient
evidence existed to satisfy the statutory requirements of
section 844(i).
                                 -5-
court. See United States v. Hicks, 106 F.3d 187, 190 (7th Cir.),

cert. denied, 117 S.Ct. 2425 (1997). And, cases discussing Lopez

and relying upon its rationale are necessarily addressing the

constitutionality of the statute; Lopez establishes no rules of

statutory construction.



I. Constitutionality Under Lopez



    Lopez was a constitutional law decision. It struck down the

Gun-Free School Zones Act, 18 U.S.C. §992(q)(1)(A), which

criminalized the knowing possession of a firearm in a school

zone. Lopez identified three broad categories of activities which

Congress could regulate pursuant to the Commerce Clause: (i)

the use of channels of interstate commerce; (ii) the

instrumentalities of interstate commerce or persons or things in

interstate commerce; and (iii) activities having a substantial



                               -6-
relation to interstate commerce.4 Id. at 1629-30. Analyzing

section 992(q) under the third category, the Court concluded that

the activity regulated must “substantially affect” interstate

commerce to be within Congress’s power to regulate. Id. at

1630. The Supreme Court concluded that Congress exceeded

its Commerce Clause authority in section 922(q) because the

statute “neither regulates a commercial activity nor contains a

requirement that the possession [of the gun] be connected in

any way to interstate commerce.” Id. at 1626 (emphasis added).

    Nothing in Lopez challenges Congress’s power to regulate

conduct, including non-economic conduct (such as arson), if

Congress has a rational basis to determine that the criminalized

conduct substantially affects interstate or foreign commerce.


    4
      Cases under section 844(i), given the statute’s
language, may fall within either category 2 or 3 of the kind of
regulation permitted under the Commerce Clause: regulation
of the instrumentalities of interstate commerce or regulation
of activities having a substantial relation to interstate
commerce. See United States v. Chowdhury, 118 F.3d 742,
745 (11th Cir. 1997).
                               -7-
See id. at 1630.       Post-Lopez challenges to the facial

constitutionality of section 844(i) have been rejected, apparently

concluding that Congress did have a rational basis for

determining that the arson of property used in commerce or in

an activity affecting interstate commerce substantially affects

interstate or foreign commerce. See United States v. Grimes,

142 F.3d 1342, 1346 (11th Cir. 1998) (collecting cases).

     Also, in contrast to the Gun-Free School Zones Act, the

federal arson statute, section 844(i), does contain an element

expressly requiring connection to commerce, a connection like

that to which Lopez alluded. By its very terms, section 844(i) is

limited to property “used in interstate or foreign commerce or in

any activity affecting interstate or foreign commerce.” So, it

would seem that this statutory element removes section 844(i)

from the constraints of the “substantial effect” standard

established in Lopez. Lopez’s “substantial effect” standard has

been said to be inapplicable to other statutes with express

                                -8-
effect-on-commerce requirements similar to section 844(i).5 See

United States v. Castleberry, 116 F.3d 1384, 1387 (11th Cir. 1997);

United States v. Chisholm, 105 F.3d 1357, 1358 n.3 (11th Cir.

1997); United States v. McAllister, 77 F.3d 387, 390 (11th Cir.

1996); see also United States v. Jackson, 111 F.3d 101 (11th Cir.

1997); Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995).

     But to support the claim that constitutionally insufficient

evidence existed to prosecute him under section 844(i),

Defendant cites, in addition to Lopez, this court’s decision in

United States v. Denalli, 73 F.3d 328 (11th Cir.), modified, 90 F.3d

444 (11th Cir. 1996). In Denalli, the defendant’s conviction under

section 844(i) was reversed because the government proved no

substantial effect of the activity on interstate commerce:




     Where a statute includes a requirement that, in each
     5


case, some effect on commerce be shown, the Supreme
Court’s concern in establishing the “substantial effect”
standard in Lopez -- that is, that no connection to interstate
commerce might exist in a specific case -- is alleviated.
                                -9-
Denalli involved the arson of a private home occupied by its

owners.

     The decision in Denalli rested on the panel’s application of

Lopez. And Denalli seems to have read Lopez to impose -- for

constitutional law purposes -- an additional burden on the

government when enforcing legislation founded on Congress’s

authority to regulate activities that substantially affect interstate

commerce: the burden to establish that the property underlying

each case was used in an activity that substantially affects

interstate commerce.

     We doubt Lopez requires this additional burden for statutes

-- like section 844(i) -- containing an express requirement that

the crime or the property involved in the crime be connected in

some way to interstate commerce.6 See Lopez, 115 S.Ct. at 1626.


     6
      Lopez, as a matter of constitutional law, only requires
that the entirety of the “activity” regulated by the statute
“substantially affect” interstate commerce. Lopez does not
require a substantial effect on interstate commerce to result
from each individual criminal act or from the specific
                                 -10-
Addressing other statutes with similar requirements as section

844(i) that an effect on commerce exist, this circuit has

consistently, except perhaps in Denalli, considered Lopez

inapplicable: Lopez does not affect the constitutionality of

statutes which expressly require an effect on commerce as an

element of the crime. See, e.g., Castleberry, 116 F.3d at 1387;



property involved in each criminal act.
     Much of the confusion about section 844(i) and the
application of Lopez to that statute seems to stem from the
use of the term “activity.” In evaluating the connection to
interstate commerce in cases involving section 844(i), the
term activity can be used in two different contexts: (1) a
constitutional law context, and (2) a criminal law, statutory
context.
     In the constitutional law context, Lopez used “activity”
to refer to the entirety of conduct sought to be regulated by
Congress in enacting a statute. In this context, the “activity”
regulated by section 844(i) is arson of property used in
commerce or used in an activity affecting commerce.
Because section 844(i) requires a connection to commerce,
the “activity” regulated by Congress in section 844(i) is
clearly within Congress’s constitutional authority.
     In the criminal law context, section 844(i) itself also
expressly uses the term “activity.” But “activity” in the
statute is used in a different, narrower sense: to refer to the
actual property impacted on by the criminal act at issue.
                              -11-
Jackson, 111 F.3d at 101; Chisholm, 105 F.3d at 1358 n.3;

McAllister, 77 F.3d at 390; see also Cheffner, 55 F.3d at 1520.

     In Denalli, the court required, before application of section

844(i) to the defendant would be constitutional, a substantial

effect on interstate commerce by the criminal act at issue: arson

of a private home occupied by its owners.7 Subsequent section

844(i) cases have acknowledged (but questioned) Denalli’s

expansive application of the “substantial effect” standard. See,

e.g., United States v. Viscome, 144 F.3d 1365, 1369 n.9 (11th Cir.

1998). We question it, too.

     Most important, Denalli dealt with a specific set of facts: a

purely private residence occupied by its owners. And the

decision was that the facts of Denalli, as a matter of



     Again, we conclude because of the reliance on Lopez,
     7


the panel in Denalli was deciding what they saw as an issue
of constitutional law and was reviewing the sufficiency of the
evidence of effect on commerce for constitutional defects.
Lopez did not involve 844(i) and could control no other issue
in Denalli.
                               -12-
constitutional law, could not support a prosecution under

section 844(i). That decision may be correct.8 But whatever our

view may be on its correctness, we are bound by the decision.

So, in like cases, we will follow it to make sure that like cases

have a like result. But the case now before us is different.

     Even under Denalli’s “substantial effect” standard, section

844(i) was constitutional as applied to Defendant in the case

before us. Our case presents a different factual setting than

Denalli: here, the arson of rental property. And, rental property,

in the aggregate, has a substantial effect on interstate

commerce. See generally Russell, 105 S.Ct. at 2457 (“[T]he local

rental of an apartment unit is merely an element of a much

broader commercial market in rental properties.”); see also

Chowdhury, 118 F.3d at 744-45; United States v. McMasters, 90

F.3d 1394, 1399 (8th Cir. 1996) (renting house is the sort of



    Even a minimal effect on commerce may not have been
     8


shown in Denalli.
                               -13-
economic activity that might, through repetition elsewhere,

substantially affect interstate commerce); cf. Belflower v. United

States, 129 F.3d 1459, 1462 n.4 (11th Cir. 1997) (“Denalli simply

seems to represent the unusual and rare case envisioned by the

Supreme Court [in Russell] when it recognized that ‘perhaps not

every private home’” will be covered under section 844(i).).

     Aggregation of the effects on commerce of a given activity

(such as, the renting of property) to determine whether a

substantial effect on commerce exists is an approach to

Commerce Clause legislation recognized by the Supreme Court.

See Lopez, 115 S.Ct. at 1631 (Congress’s constitutional authority

to regulate an activity will be upheld where the activity “arise[s]

out of or [is] connected with a[n act], which viewed in the

aggregate, substantially affects interstate commerce.”).

     The arson of rental property in general has a substantial

effect on interstate commerce.         Thus, criminalization and

punishment of the arson of such property is within Congress’s

                                -14-
authority under the Commerce Clause. And, because sufficient

evidence shows that the home damaged by Defendant was rental

property, Defendant’s argument based on Lopez is rejected. The

Constitution was satisfied.



II. Statutory Requirements of Section 844(i)



       While the regulated activity may, in the aggregate, be

required to have a substantial effect on interstate commerce,

this    requirement   is   a   condition   to   section   844(i)’s

constitutionality; as such, it presents an issue of constitutional

law for the court to resolve but is no element of the crime. See

Hicks, 106 F.3d at 190. As a matter of criminal law, the jury need

only find what the language of the statute requires to convict:

the use of the damaged property in commerce or in an activity

affecting interstate commerce. See United States v. Wing, 104

F.3d 986, 991-92 (7th Cir. 1997).

                                -15-
     The statute requires that the property involved in the arson

have some effect on interstate commerce: no requirement of

“substantial effect” is set out. Our judgment that a conviction

for a section 844(i) violation is sustainable with no individualized

finding for each act of “substantial effect” finds support in

decisions of other circuits. See, e.g., United States v. Tocco, 135

F.3d 116, 123-24 (2d Cir.), cert. denied, 118 S.Ct. 584 (1998);

Hicks, 106 F.3d at 190 (government only required to “establish

a minimal connection between the property at issue and some

aspect of interstate commerce”); United States v. Melina, 101

F.3d 567, 572-73 (8th Cir. 1996).

     Where, as here, the pertinent property is being used as

rental property, it fits squarely within the teachings of Russell;

sufficient evidence was presented to satisfy the statutory

requirement that the property be used in an activity affecting

commerce. The criminal law was satisfied. Again, other circuits

have reached the same result. See, e.g., Tocco, 135 F.3d at 124

                                -16-
(proof that building was rented at time of arson conclusively

establishes requisite connection between burned building and

interstate commerce); United States v. Gomez, 87 F.3d 1093,

1094 (9th Cir. 1996) (acknowledging Russell’s per se rule that all

rental property sufficiently affects interstate commerce to satisfy

section 844(i)).

     In addition, the district court’s instruction to the jury that,

for purposes of the criminal statute, residential rental property

“is considered as being used in or affecting interstate commerce

even if it has a minimal effect on interstate commerce” is not

error. This statement is a correct statement of the statutory

requirement under section 844(i).

     AFFIRMED.




                                -17-
