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United States v. Hersom

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Before Torruella, Boudin, and Dyk, *fn1 Circuit Judges.

This is an appeal from a criminal conviction of arson in the United States District Court for the District of Maine. Defendant Douglas Hersom pled guilty to a charge that he maliciously destroyed by fire a building owned by an institution “receiving Federal financial assistance” in violation of 18 U.S.C. § 844(f). On appeal, Hersom contends that his conviction should be reversed because the statute is unconstitutional, or that the statute should be construed to be inapplicable to the circumstances of his case. Alternatively, he contends that resentencing is required because the district court erroneously determined that he was a career offender under the U.S. Sentencing Guidelines (“Guidelines”). U.S. Sentencing Guidelines Manual § 4B1.1 (“U.S.S.G.”).

We conclude that 18 U.S.C. § 844(f), as properly construed, is a permissible exercise of Congress’s power under the Property Clause of the Constitution. U.S. Const. art. IV, § 3, cl. 2. We also hold that the statute is applicable in the circumstances of this case, and thus we affirm the conviction. Finally, we vacate the sentence and remand for resentencing in light of this Court’s intervening decision in United States v. Giggey, 551 F.3d 27 (1st Cir. 2008) (en banc).

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