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February 21, 1998


The opinion of the court was delivered by: CURTIN


 CURTIN, District Judge


 On June 29, 1993 a jury found petitioner Vincent "Jimmy" Sicurella guilty of conspiracy (Count I), mail fraud (Count II) through use of fire (Count III), and willful destruction of government property (Count IV) through use of fire (Count V). Petitioner had been charged, along with co-defendant Michael LaPorta, with procuring and burning cars in a conspiracy to collect insurance proceeds fraudulently. At trial the government presented evidence that the defendants conspired to burn a car belonging to Jimmy Sicurella. The FBI learned of the insurance fraud scheme and mounted a "sting" operation using a government informant, whereby a second car was also burned. The second car belonged to the United States government, but the defendants were told that it was owned by the informant's brother-in-law. On September 17, 1993, this court dismissed Count V and affirmed petitioner's conviction on the other four counts (Item 75). United States v. Sicurella, 834 F. Supp. 621 (W.D.N.Y. 1993).

 On November 19, 1993, this court sentenced petitioner to a term of six months' imprisonment for each of Counts I, II, and IV, and to a term of sixty months' imprisonment for Count III (Item 98). The court instructed that the six-month sentences for Counts I, II, and IV were to be served concurrent to each other and concurrent to a sentence of twenty-one months imposed by Judge Elfvin for an unrelated perjury conviction on June 11, 1993 (Id., pp 21-22). The court further instructed that the sixty-month sentence imposed for Count III was to be served consecutive to the June 11, 1993, perjury sentence and consecutive to the sentences for Counts I, II, and IV (Id., pp. 18-23). The court noted that this resulted in a total sentence of eighty-one months' imprisonment (Id.). At this sentencing proceeding, the court expressed its dissatisfaction with the mandatory minimum sentence for Count III and the court's lack of discretion to take into account the personal and family circumstances of the particular defendant in calculating the appropriate sentence.

 The government appealed this court's dismissal of Count V, and Sicurella and LaPorta cross-appealed from various aspects of their trial and conviction. On December 30, 1994, the Second Circuit affirmed both the judgment of conviction and the order dismissing Count V of the second superseding indictment. U.S. v. LaPorta, 46 F.3d 152 (2d Cir. 1994). Other than noting in the background section of its decision that this court sentenced Sicurella to sixty-six months' imprisonment, id., at 155, *fn1" the Second Circuit neither mentioned nor reviewed the computation of petitioner's sentence. Neither defendant challenged the computation of their sentence in their appeal.

 On March 14, 1997, petitioner filed the pending application for an order vacating and setting aside the sentence imposed by this court due to a subsequent change of law or, in the alternative, modifying petitioner's sentence to a total aggregate term of sixty-six months, to run concurrently with the twenty-one-month perjury sentence (Item 100). The government has filed its objections to petitioner's motion to vacate (Items 103, 107, and 113), and petitioner has filed several responses to these objections (Item 104, 109, and 111). The parties appeared on August 11, 1997, and November 7, 1997, for argument on this petition.


 I. Petitioner's Motion to Vacate Sentence For Lack of Federal Jurisdiction

 Petitioner contends that the court should vacate his conviction, which he terms "common law arson" (Item 100, P 19), as a result of a subsequent change in the law with regard to federal court jurisdiction in cases that rely on the Commerce Clause (U.S. Constitution, Article I, § 8, cl. 3). Specifically, petitioner argues that 18 U.S.C. §§ 841-848 expressly rely on the Commerce Clause as the source of Congress's authority to pass the legislation (Item 100, P 8). Petitioner notes that Congress declared that the purpose of this law is to protect interstate and foreign commerce against interference and interruption (Id., P 9). Petitioner explains that in United States v. Lopez, 514 U.S. 549, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995), the Supreme Court ruled that the enactment of a federal statute that prohibited the possession of a firearm in a school zone exceeded Congress's authority under the Commerce Clause because the statute sought to regulate purely local activity. He asserts that following Lopez, some of the circuit courts have held that in prosecutions brought under 18 U.S.C. § 844(i), which authorizes federal imprisonment for any person who "maliciously damages or destroys, or attempts to damage 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 foreign commerce," the government must satisfy the jurisdictional requirement of that statute by pointing to a substantial effect on, or connection to, interstate commerce. See United States v. Pappadopoulos, 64 F.3d 522 (9th Cir. 1995); United States v. Denalli, 73 F.3d 328 (11th Cir. 1996). Petitioner also notes that in Russell v. United States, 471 U.S. 858, 85 L. Ed. 2d 829, 105 S. Ct. 2455 (1985), the Supreme Court held that the jurisdictional requirements of section 844(i) under the Commerce Clause are co-extensive with the outer limits of congressional power (Item 100, P 18).

 Petitioner was found guilty of having his own 1978 Cadillac set on fire and receiving $ 1,844.78 from his insurer (Id, P 14). He asserts that he used his vehicle solely for private, non-commercial transportation in and about the City of Buffalo (Id., P 16). He contends that due to work-related injuries which he suffered in 1986, he had not engaged in any work for three years prior to the time that he had his car burned (Id.). Petitioner concedes that he was charged and convicted under 18 U.S.C. § 844(h)(1) with using fire to commit any felony which may be prosecuted in a court of the United States, and that this offense does not specifically require a jurisdictional predicate relating to the Commerce Clause. Furthermore, he concedes that to date, the courts within this circuit have upheld the legality of cumulative sentences for convictions under both sections 844(i) and 844(h)(1) (Id., P 17). Nevertheless, petitioner argues that this court should vacate his conviction under section 844(h)(1) because (1) Congress did not intend to "occupy the field" to the exclusion of state law on this subject matter; (2) section 844(i) is co-extensive with the outer limits of congressional power under the Commerce Clause; (3) the purpose of 18 USC §§ 841-848 is the protection of interstate and foreign commerce; (4) the purpose of the Anti-Arson Act of 1982 was to eliminate problems in the prosecution of significant federal arson cases; and (5) the Lopez decision has redrawn the ambit to which Congress's Commerce Clause powers applies (Id., P 19). Petitioner refers to two cases in which federal courts have found that arson of non-commercial private vehicles fail to satisfy the jurisdiction prerequisite for prosecution under § 844(i). United States v. Montgomery, 815 F. Supp. 7 (D.D.C. 1993); United States v. Monholland, 607 F.2d 1311 (9th Cir. 1979).

 The government urges the court to deny the petition, arguing that petitioner's substantive crime fell within the mail fraud statute, 18 U.S.C. §§ 1341-1342, and that the jurisdictional basis of this statute is Congress's Postal Power (U.S. Constitution, Art. I, § 8, cl. 7) (Item 103, p. 2). The government relies on the Ninth Circuit's decision in Pappadopoulos, 64 F.3d at 528, in which the court upheld the defendant's conviction under section 844(h)(1) after it reversed the defendant's conviction under section 844(i) for failure to satisfy the federal jurisdictional requirements. The Ninth Circuit explained that § 844(h)(1) does not contain a requirement that any property have any connection to interstate commerce. Id., citing United States v. Karlic, 997 F.2d 564, 571 (9th Cir. 1993) ("Section 884(i) requires proof of damaging or attempting to damage 'property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce,' an element not required by § 844(h).") The Pappadopoulos court asserted that section 844(h) does not exceed Congress's commerce authority because it requires merely that the underlying felony itself be one that can be prosecuted "in a court of the United States." Pappadopoulos, 64 F.3d at 528. As in the case at bar, one of the crimes underlying Ms. Pappadopoulos's conviction under section 844(h)(1) was mail fraud, in violation of 18 U.S.C. § 1341. Because Ms. Pappadopoulos did not argue that the federal court lacked jurisdiction over the underlying felonies, the court upheld the conviction under section 844(h)(1).

 The government contends that mail fraud can be and has long been prosecuted in the courts of the United States (Item 103, p. 3). The government instructs that in United States v. Elliott, 89 F.3d 1360, 1363-64 (8th Cir. 1996), the Eighth Circuit rejected the defendant's argument that after Lopez the mail fraud statute required some sort of interstate connection and held that the jurisdictional basis of the mail fraud statute is Congress's Postal Power and therefore necessarily encompasses all items passing through the United States mails, even if their passage is purely intrastate. The government argues that because the jurisdictional basis of the predicate offense upon which petitioner's section 844(h)(1) conviction was based is Congress's Postal Power, petitioner's Lopez argument is meritless.

 Although it appears that the Second Circuit has not addressed this issue as squarely as the Ninth Circuit, the court believes that the Pappadopoulos court correctly resolved this question. The plain language of 18 U.S.C. § 844(h)(1) indicates that a person can be prosecuted under this statute for using fire to commit any felony that can otherwise be prosecuted in a federal court. Section 844(h)(1) does not expressly require a jurisdictional predicate relating to interstate commerce as does section 844(i). Petitioner's arguments regarding section 844(i) and the cases which have interpreted that provision following Lopez are not relevant to the circumstances of this case, since petitioner was neither charged with nor convicted of violating section 844(i). This court had jurisdiction over this entire prosecution because federal courts have jurisdiction over cases brought under the mail fraud statute. 28 U.S.C §§ 1341 and 1342. As with the defendant in Pappadopoulos, petitioner has not challenged the federal jurisdiction of the mail fraud statute. Even if petitioner had attempted to ...

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