Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 08-1279

UNITED STATES OF AMERICA,

Appellee,

v.

MARK NUTTER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

 Torruella, Selya, and Lipez,

Circuit Judges.

Terrance McCarthy on brief for appellant.

William H. Connolly, Assistant U.S. Attorney, and Michael J.

Sullivan, United States Attorney, on motion for summary disposition

for appellee.

February 26, 2009
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Per Curiam. Defendant-appellant Mark Nutter was indicted

on one count of arson, in violation of 18 U.S.C. § 844(i); three

counts of mail fraud, in violation of 18 U.S.C. § 1341; and one

count of using fire to commit mail fraud, in violation of 18 U.S.C.

§ 844(h)(1). After a jury trial, he was convicted on all five

counts and sentenced to a five-year mandatory minimum term of

incarceration for arson under 18 U.S.C. § 844(i), to run

concurrently with five-year sentences on each of the mail fraud

counts, plus a consecutive ten-year mandatory minimum term of

incarceration on the use-of-fire count under 18 U.S.C. § 844(h)(1).

In this direct appeal, the defendant raises three issues.

In his counseled brief, he argues that the district court erred in

instructing the jury on the interstate commerce element of the

arson count and in concluding that it had no authority under 18

U.S.C. § 3553(a) to sentence him below the applicable statutory

minimums. In a supplemental pro se brief, he further argues that

the district court violated the Speedy Trial Act by granting

various continuances without adequately explaining its reasons for

doing so. 

Taking the arguments in the order in which the errors

purportedly occurred, we turn, first, to the defendant's pro se

claim that the district court violated the Speedy Trial Act. We

need not reach the merits of that argument because the defendant

waived it by failing to move for dismissal on that ground before
That instruction was as follows: 1

In order to prove the charge of arson,

the government must prove . . . beyond a

reasonable doubt . . . that the damaged

property was used in or affected interstate

commerce.

* * *

The government must . . . prove that the

property the defendant damaged or destroyed

was used in or affected interstate commerce.

Interstate commerce means commerce or business

between any place in one state and another

place outside that state. It also means

commerce between places within the same state,

but passing through any place outside the

state.

As a matter of law, rental property used

for commercial purposes is in or affecting

interstate commerce.

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trial. See 18 U.S.C. § 3162(a)(2); see also United States v.

Belton, 520 F.3d 80, 82 (1st Cir.), cert. denied, 129 S. Ct. 286

(2008).

This brings us to the defendant's challenge to the jury

instruction on the interstate commerce element of the arson

charge. Because the defendant failed either to propose an 1

alternate instruction on that point or to object to the instruction

given before the jury retired, this claim of error is reviewable

only for plain error. See Fed. R. Crim. P. 30(d), 52(b); see also

United States v. Riccio, 529 F.3d 40, 46 (1st Cir. 2008). "'[T]he

plain error hurdle, high in all events, nowhere looms larger than
The defendant concedes the accuracy of that statement of the 2

law, as he must. See Russell v. United States, 471 U.S. 858, 862

(1985); United States v. Medeiros, 897 F.2d 13, 16 (1st Cir. 1990).

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in the context of alleged instructional errors.'" United States v.

Garcia-Ortiz, 528 F.3d 74, 81 (1st Cir.) (quoting United States v.

Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir. 2001)), cert. denied,

129 S. Ct. 254 (2008). To clear that hurdle, the defendant must

show "'(1) that an error occurred (2) which was clear or obvious

and which not only (3) affected the defendant's substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings.'" Id. (quoting United States

v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

 The defendant has not demonstrated that an error occurred

and so stumbles at the first prong. He argues that by instructing

the jury "that the damaged rental property was 'used for

commer[ci]al purposes . . . [and] affected interstate commerce,'"

the instruction "usurped the province of the jury" and "eliminated

[the interstate commerce] element from their deliberations."

Actually, the court instructed the jury, twice, that "the

government must prove" that the damaged property was used in or

affected interstate commerce; the court then stated, "[a]s a matter

of law"--not fact--that "rental property used for commercial

purposes is in or affecting interstate commerce." It never 2

instructed the jury that the damaged property was, in fact, rental

property used for commercial purposes or that the property
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otherwise was used in or affected interstate commerce.

Consequently, no error occurred. See United States v. Gomez, 87

F.3d 1093, 1097 (9th Cir. 1996) (characterizing similarly worded

instruction as "correctly delegat[ing] the factual determination to

the jury, leaving the determination of the legal standard to the

court"); see also United States v. Stackpole, 811 F.2d 689, 696

(1st Cir. 1987) (finding no error when court "did not instruct the

jury that the building was used in interstate commerce, but rather

that if they believed some particular testimony, that testimony

would be enough on that issue" (emphases omitted)).

To cinch matters, in both its initial and final

instructions, the court clearly instructed the jury on its role as

factfinder as opposed to the court's role as law-giver. Considered

in context and "as part of the whole trial," United States v.

Martínez-Vives, 475 F.3d 48, 52 (1st Cir. 2007) (internal quotation

marks omitted), the challenged instruction was not error, plain or

otherwise. We therefore need not reach the second, third, or

fourth prongs of the plain-error standard.

The defendant's sentencing argument can be readily

dispatched. The district court correctly concluded that it had

no choice but to impose a ten-year mandatory minimum sentence on

the use-of-fire count consecutive to the five-year mandatory

minimum sentence on the arson count. See 18 U.S.C. § 844(h)

(providing that a defendant convicted of this offense "shall, in
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addition to the punishment provided for [the underlying] felony

[here, mail fraud], be sentenced to imprisonment for ten years"

and further providing, "nor shall the term of imprisonment

imposed under this subsection run concurrently with any other

term of imprisonment"). The defendant's only argument to the

contrary is that the resulting sentence was "greater than

necessary" to serve the purposes of sentencing in violation of 18

U.S.C. § 3553(a) and the principles articulated in a trio of

Supreme Court cases. See United States v. Booker, 543 U.S. 220

(2005); Kimbrough v. United States, 128 S. Ct. 558 (2007); Gall

v. United States, 128 S. Ct. 586 (2007). As this court

recognized shortly after Booker, that decision had no effect on

statutory mandatory minimum sentences, United States v.

Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005); although the

guidelines are no longer mandatory, sentencing courts must still

abide by statutory mandatory minimums. United States v. Ortiz,

447 F.3d 28, 38-39 (1st Cir. 2006). Indeed, Kimbrough itself

recognizes as much. Kimbrough, 128 S. Ct. at 574 (recognizing

that "district courts [remain] constrained by the mandatory

minimums Congress prescribed").

Finding all three of the defendant's arguments to be

unavailing, we grant the government's motion for summary

disposition and affirm the conviction and the sentence. See 1st

Cir. R. 27.0(c).