PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4949

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL L. WHITE,

Defendant - Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Charleston. Thomas E. Johnston, 

District Judge. (2:12-cr-00221-1)

Argued: August 20, 2014 Decided: November 17, 2014

Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and George L. 

RUSSELL, III, United States District Judge for the District of 

Maryland, sitting by designation.

Affirmed by published opinion. Chief Judge Traxler wrote the 

opinion, in which Judge Russell joined. Judge Wynn wrote an 

opinion dissenting in part.

ARGUED: James McCall Cagle, Charleston, West Virginia, for 

Appellant. Larry Robert Ellis, OFFICE OF THE UNITED STATES 

ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: 

R. Booth Goodwin, II, United States Attorney, OFFICE OF THE 

UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
2

TRAXLER, Chief Judge: 

Appellant Michael L. White was charged with crimes related 

to the intentional burning of a two-unit duplex that he owned 

and managed and to his recovery of insurance proceeds from the 

fire. Following a jury trial, White was convicted of conspiracy 

to commit arson and mail fraud, see 18 U.S.C. §§ 371, 844(i), 

1341 (Count 1); aiding and abetting arson, see 18 U.S.C. §§ 

2(a), 844(i) (Count 2); and accessory after the fact to arson, 

see 18 U.S.C. §§ 3, 844(i) (Count 3). The district court 

imposed a 78-month term of imprisonment for each count, to run 

concurrently.

On appeal, White raises two challenges to the sufficiency 

of the evidence. First, White contends that the government 

failed to establish the nexus to interstate commerce required to 

sustain arson-related convictions as charged in Counts 1 and 2. 

Second, he argues the evidence is insufficient to establish that 

he assisted an uncharged co-conspirator in evading apprehension 

and punishment as required for the accessory-after-the-fact 

conviction charged in Count 3. Finally, White challenges his 

sentence, arguing that the district court used an inflated base 

offense level as a result of the court’s erroneous determination 

that the duplex qualified as a “dwelling” under United States 

Sentencing Guidelines Manual (“U.S.S.G.”) § 2K1.4(a)(1). We 
3

reject each of White’s arguments and affirm his convictions and 

sentence. 

I.

White was a businessman in Logan County, West Virginia, who 

owned or held an interest in several local ventures including a 

helicopter service, an airport management company, and several 

coal mines. White also owned a two-unit duplex near the town of 

Van, West Virginia (the “duplex” or “Van duplex”), which he 

began renting to tenants in 1998. 

In the summer of 2009, White was experiencing financial 

setbacks and defaulted on his helicopter lease, resulting in the 

closure of his helicopter business and, eventually, the entry of 

a judgment against him personally for $556,000. White was 

forced to borrow $40,000 from an acquaintance to cover expenses. 

Additionally, White was no longer receiving an income 

stream from his duplex by the summer of 2009. The Van duplex 

qualified as government-subsidized housing. For a period of 

time, the Department of Housing and Urban Development (“HUD”) 

sent subsidized rent payments directly to White on behalf of the 

last tenants to occupy the Van duplex before the October 2009

fire. Christy Ketcherside Smith (“Ketcherside”), who began 

living in Apartment 1 in the spring of 2008, testified that she 

lost her HUD subsidy and was no longer paying rent by early 

2009. Shannon Dickens, who resided in Apartment 2 for 
4

approximately nine years before the fire, also received the 

benefit of HUD rent subsidies until she found employment and 

began paying the rent herself. Dickens stopped paying rent in 

2008 when her heating and air conditioning unit stopped working 

and White failed to repair it. Dickens continued to live in the 

duplex, however, until late September or early October 2009. 

White grew increasingly frustrated that his tenants in the 

Van duplex were not paying rent and that he was not making money 

on the property. White began expressing this frustration to 

Kim Kinder, an across-the-street neighbor with whom White was 

carrying on an affair. Kinder, who also regularly cleaned 

White’s house, gathered from White’s many complaints that the 

property had become “a thorn in his side.” J.A. 279. 

In June 2009, White purchased a fire-insurance policy to 

cover the Van duplex “as a two-family tenant-occupied” rental 

property. J.A. 427. The policy became effective on July 19, 

2009, and provided $80,000 coverage for the duplex and $20,000 

for its contents. Later that summer, White told Kinder he 

wanted to talk to her husband “Doug about some kind of 

proposition as to what he could do with the duplex.” J.A. 282. 

The Kinders met with White who explained that he was not making 

any money from the duplex and wanted Doug to burn it down as 

soon as possible. White instructed that no accelerants be used 

so that the fire would not be “traced back to him,” J.A. 283, 
5

and that the Kinders not contact him for at least a week after 

setting the fire. Finally, White offered Doug, an unemployed 

ex-convict, $4000 to do the job. White paid the Kinders $200 up 

front as a show of “good faith,” J.A. 284, and indicated the 

balance would be paid upon completion of the job. 

During the meeting, White told the Kinders that he had 

already evicted both tenants and that, as far as he knew, the 

tenants were gone. This was not entirely true, however. White 

did not even begin eviction proceedings until September 11,

2009. There was no evidence that White ever obtained service on

Ketcherside, the tenant in Apartment 1. In fact, Ketcherside 

testified that she was never served with any eviction papers. 

Thus, before the fire, White had not obtained an order of 

eviction against Ketcherside. Although Ketcherside had not been 

sleeping in the Van duplex for several months, she had not 

completely abandoned the premises—she still kept her furniture 

and her children’s clothing and toys in the duplex and 

periodically went there to retrieve items and check on things. 

White was able to obtain an eviction order against Dickens, his 

Apartment 2 tenant, directing that she vacate the premises by 

October 15, 2009—the day before the fire.1

 

 1 Dickens testified that she vacated her unit a few weeks 

before the eviction deadline.
6

The Kinders made three separate trips to the duplex before 

setting the fire. On the first two trips, the Kinders decided 

to wait when they noticed that the lights were on in the duplex 

and that people were in the building. On October 16, 2009, 

Kinder and her husband finally found the duplex without 

occupants, although the lights were on and there were “a lot of 

clothes on the floor.” J.A. 287. Kinder waited in the car 

while her husband entered the duplex and started a fire using a 

small amount of gasoline. The Kinders returned home once the 

fire had been set. 

The heat and smoke damage to the Van duplex caused by the 

fire exceeded the limits of White’s new fire policy. Thus, 

White recovered the full $80,000 proceeds on his claim, plus an 

additional amount for major appliances. As promised, the 

Kinders waited one week before contacting White, who then gave 

Doug $1000. White refused to make any further large payments, 

claiming that he received very little insurance money because 

the Kinders did not cause sufficient damage to the duplex. In 

response, the Kinders resorted to “begging and threatening” to 

contact the police, which prompted White to make a number of 

smaller payments of $100 or less. In all, White paid about 

$2000 rather than the $4000 he had promised. 

In June 2010, Kinder was contacted by West Virginia State 

Police Officer T.C. Bledsoe. After initially denying 
7

involvement in the arson, Kinder confessed to her involvement in 

the Van duplex arson and agreed to cooperate with the police. 

Officer Bledsoe arranged for Kinder to make a recorded telephone 

call to White in which they discussed the fire and White’s 

payment of money to the Kinders. During the call, Kinder made 

statements suggesting White’s involvement in the arson to which 

White did not deny. Kinder also asked if White intended to give 

her more money, and White indicated that Kinder had been 

threatening him. 

Officer Bledsoe subsequently interviewed White. During the 

interview, White acknowledged his relationship with Kinder, his 

frustration over his ownership of the duplex, and the fact that 

a fire had occurred. White then told Officer Bledsoe that 

Kinder confessed to having started the fire about two months 

after the duplex burned. White further stated that before the 

fire he had asked Doug Kinder to go to the duplex “and clean it 

up and get it prepared to either rent or sell.” J.A. 586. 

White testified in his own defense at trial. He denied 

knowledge of or involvement in the burning of his duplex. To 

the extent that the recorded phone call made it appear that

White was “fully aboard with the idea that [the duplex] would be 

burned and burned by [Kinder],” White explained that he was 

simply “playing along” at the request of a mutual friend, Mark 

Vincent, who told him not to argue with Kinder because she was 
8

suicidal. J.A. 508. Vincent testified and confirmed this 

claim. White was convicted on all three counts, and the 

district court imposed concurrent 78-month terms of imprisonment 

on each count. White now appeals. 

II.

White first argues that there was insufficient evidence to 

establish the interstate commerce element of the crime of arson 

under 18 U.S.C. § 844(i). Accordingly, he argues that the 

district court was in error when it denied the motion for 

judgment of acquittal. We disagree.2

 

We review de novo the district court’s denial of a motion 

for judgment of acquittal. See United States v. Hamilton, 699 

F.3d 356, 361 (4th Cir. 2012). In considering a defendant’s 

argument that the evidence was insufficient to support his 

 2 To the extent that White frames the issue in terms of 

federal subject matter jurisdiction, he misunderstands the 

jurisdiction of the federal courts. As we have explained, “the 

jurisdictional element is merely one element of the criminal 

activity proscribed by § 844(i), and whether it is demonstrated 

in an individual circumstance does not affect a court’s 

constitutional or statutory power to adjudicate a case.” United 

States v. Carr, 271 F.3d 172, 178 (4th Cir. 2001) (internal 

quotation marks omitted). A claim of an insufficient connection 

to interstate commerce is a challenge to one of the elements of 

the government’s case and is therefore considered a sufficiency 

of the evidence claim. See id.; see also United States v. 

Williams, 299 F.3d 250, 253 (3d Cir. 2002) (“A property’s use in 

an activity affecting interstate commerce is an essential 

element of the crime of arson under 18 U.S.C. § 844(i)” which, 

“[l]ike all elements of criminal offenses, the Government must 

prove . . . beyond a reasonable doubt.”). 
9

convictions, we will uphold a jury’s verdict “if, viewing the 

evidence in the light most favorable to the government, there is 

substantial evidence to support the conviction.” Id. (internal 

quotation marks omitted). “Substantial evidence is evidence 

that a reasonable finder of fact could accept as adequate and 

sufficient to support a conclusion of a defendant’s guilt beyond 

a reasonable doubt.” United States v. Green, 599 F.3d 360, 367 

(4th Cir. 2010) (internal quotation marks omitted). Thus, “the 

jury’s verdict must stand unless we determine that no rational 

trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt.” United States v. Royal, 731 

F.3d 333, 337 (4th Cir. 2013).

Under 18 U.S.C. § 844(i), it is unlawful to “maliciously 

damage[ ] or destroy[ ], or attempt[ ] 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.” 

It is beyond dispute that the rental of real estate is an 

“activity that affects commerce” under § 844(i). Russell v. 

United States, 471 U.S. 858, 862 (1985) (internal quotation 

marks omitted). In Russell, the Supreme Court held that the 

arson of a two-unit apartment building that was used as rental 

property fell within the purview of 18 U.S.C. § 844(i). In so 

holding, the Court noted that, although § 844(i) “only applies 
10

to property that is ‘used’ in an ‘activity’ that affects 

commerce,” “[t]he rental of real estate is unquestionably such 

an activity.” Id. Because the apartments in the building were 

rented to tenants at the time of the fire, the Court concluded 

that the property was “being used in an activity affecting 

commerce.” Id. Accordingly, White does not, and cannot, 

challenge the general proposition that the rental of the Van 

duplex was an activity affecting commerce under § 844(i). See

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

(“Russell thus holds that rental property is per se property 

used in an activity affecting interstate commerce.”) 

White’s appeal, however, presents an issue not directly 

addressed by Russell—whether a rental house can still be used in 

an activity affecting commerce under § 844(i) if the tenants 

vacated before the fire was set. This court has previously 

answered this question in the affirmative. See United States v. 

Parsons, 993 F.2d 38 (4th Cir. 1993). In Parsons, we concluded 

that a house used as rental property for two or three years 

qualified as real property “used in an activity that affects 

interstate commerce” under § 844(i) even though it had been 

vacant for two months at the time of the fire. See id. at 40. 

Rejecting the idea that “vacancy alone . . . constitute[s] a 

‘removal’ from the rental market,” id. at 41, we determined that 

there was sufficient evidence to support the conclusion that the 
11

house was rental property at the time of the fire because (1) 

the house was insured as rental property at the time of the 

fire, and (2) having found that the defendant commissioned the 

fire, the jury could also have reasonably inferred that the 

defendant never intended to take the house off the rental 

market. See id. 

Applying Parsons to the case before us, we conclude that 

there is sufficient evidence in the record to support the 

conclusion that, at the time of the fire, the Van duplex was 

being “used in interstate . . . commerce or in [an] activity 

affecting interstate . . . commerce.” 18 U.S.C. § 844(i). 

Significantly, the Van duplex had been used as a rental property 

for more than ten years at the time of the fire. The fact that 

both tenants were no longer living in the duplex at the moment 

the fire was set, of course, does not compel the conclusion that 

it had been removed from the rental market. See Parsons, 993 

F.2d at 41. It is not even clear that White’s Apartment 1 

tenant, Christy Ketcherside, actually vacated the duplex. 

Although she was living and sleeping elsewhere, Ketcherside 

still kept furniture and children’s clothing and toys there and 

periodically checked on her property. Those items were burned 

in the fire. And although White apparently filed an eviction 

action against Ketcherside, he never served her with process—

thus, there is no indication Ketcherside was obligated to vacate 
12

and could not have resumed living in the duplex at the time of 

the fire. White did obtain an order evicting Dickens from 

Apartment 2 but permitting her to remain there until the day 

before the fire—October 15. A reasonable finder of fact could 

conclude on this evidence that Ketcherside still had a right to 

occupy the premises at the time of the fire and that Dickens 

technically had the right to do so up until the day before the 

fire. Second, as in Parsons, the Van duplex was insured as a 

commercial rental property at the time of the fire, and White 

claimed and recovered the limits of the policy after the fire. 

This is strong evidence that the duplex functioned as a 

commercial property. Indeed, “once the business nature of the 

property at issue is established, courts will presume, absent 

indicia of an intention to permanently remove the property from 

the stream of commerce, that the requisite interstate commerce 

nexus exists.” Williams, 299 F.3d at 256 (internal quotation 

marks and alterations omitted). The record is devoid of any 

indication that White intended to remove the duplex from the 

rental market. To the contrary, White told Officer Bledsoe that 

prior to the fire he had asked Doug Kinder to clean the duplex 

so that White could rent it to tenants again or sell it. 

Additionally, in light of the overwhelming evidence that White 

commissioned the arson, the jury could reasonably infer that 

White had no intention whatsoever to take the duplex off the 
13

market but instead wished to collect the insurance proceeds 

while it was still considered a rental property under the terms 

of the insurance policy. See Parsons, 993 F.2d at 41.3 

White contends that Parsons is no longer good law after 

Jones v. United States, 529 U.S. 848 (2000). We disagree. In 

Jones, the Supreme Court held that § 844(i) does not apply to a 

private, owner-occupied residence that is being used only “for 

everyday family living” rather than a commercial purpose. Id.

at 859. The Court rejected the argument that the residence fell 

within the scope of § 844(i) because it was being “used” to 

secure a mortgage loan from an out-of-state banker, to obtain an 

insurance policy issued by an out-of-state carrier, and to 

receive natural gas from out-of-state suppliers. See id. at 

855-56. The Court explained that the term “used” in § 844(i) 

“mean[s] active employment for commercial purposes, and not 

merely a passive, passing, or past connection to commerce.” Id.

at 855. Seizing on the Court’s use of the word “past,” White 

argues that Jones requires the government to prove that the 

property is being rented by a tenant at the very moment the fire 

is set, i.e., that it is presently being used in commerce. 

According to White, the moment Dickens vacated the Van duplex, 

 3 It would be a perverse result indeed if White could 

“remove” the duplex from the market by planning and directing 

the arson of the duplex, thereby defeating the interstate nexus 

requirement.
14

the landlord-tenant relationship ceased to exist. There being 

no evidence that he sought to continue renting the premises to

new tenants at the time of the fire, White argues the only 

possible conclusion from the evidence is that the Van duplex was 

no longer being “used in” an activity affecting interstate 

commerce under § 844(i) when the Kinders burned it. 

Jones is not inconsistent with Parsons. The Court’s 

primary focus in Jones was the nature of the use or function of 

the building for purposes of § 844(i). In Jones, the Supreme 

Court emphasized the “qualifying words ‘used in,’” which mandate 

that “the damaged or destroyed property must itself have been 

used in commerce or in an activity affecting commerce.” Id. at 

854. Jones gives us a two-part outline for assessing the 

applicability of 18 U.S.C. § 844(i), which requires an analysis 

of the “function of the building itself, and then a 

determination of whether that function affects interstate 

commerce.” Id. at 854 (emphasis added). Adhering to this 

framework, the Court concluded that the burning of an private 

family residence not being actively used for commercial purposes

fell outside of the scope of § 844(i). 

Parsons is not inconsistent with the two-part Jones

analysis. As we have explained, the evidence is sufficient to 

permit the conclusion that the Van duplex was functioning as a 

two-unit rental apartment at the time of the fire. There is 
15

simply no evidence suggesting that the function of the duplex 

changed before the fire. Thus, viewing the evidence in the 

light most favorable to the government, we conclude there is 

substantial evidence in the record to support the verdict.4 

III.

White next challenges the district court’s denial of his 

Rule 29 motion for judgment of acquittal challenging the 

sufficiency of the evidence to support a conviction for 

accessory after the fact to arson charged in Count 3. In order 

to prove accessory after the fact under 18 U.S.C. § 3, the 

government must demonstrate “(1) the commission of an underlying 

offense against the United States; (2) the defendant’s knowledge 

of that offense; and (3) assistance by the defendant in order to 

prevent the apprehension, trial, or punishment of the offender.” 

United States v. De La Rosa, 171 F.3d 215, 221 (5th Cir. 1999). 

The government charged that White violated 18 U.S.C. § 3 when he 

knowingly made a false and misleading statement to an insurance 

 4 We note White makes a related argument—which he does not 

raise separately but includes as part of his challenge to the 

government’s proof of the interstate commerce element—that the 

district court’s jury instructions contravene Jones. For the 

same reasons we reject White’s sufficiency of the evidence 

argument based on Jones, we find no reversible error in the 

district court’s instructions which, “taken as a whole, 

adequately state the controlling law.” United States v. RyanWebster, 353 F.3d 353, 364 n.17 (4th Cir. 2003) (internal 

quotation marks omitted). Moreover, in light of the 

overwhelming evidence against White, any error in the district 

court’s instructions would have been harmless. 
16

representative for the purpose of helping Kinder—and ultimately 

himself—avoid apprehension. 

At trial, the government presented the testimony of two 

Nationwide Insurance representatives who interviewed White. 

First, Charles Adkins, who was assigned by Nationwide to assess 

White’s insurance claim based on the Van duplex fire, testified 

that in an October 2009 interview a few days after the fire, 

White suggested that one of the tenants may have started the 

fire in response to White’s efforts to evict them. Adkins 

indicated that he notified Nationwide’s Special Investigation 

Unit (“SIU”) about White’s statement that tenants may have 

intentionally started the fire and that the SIU’s function was 

to follow up with law enforcement officials. White’s false 

statement to Adkins was charged in Count 1 as an overt act in 

furtherance of the arson conspiracy. Second, Stephen Thompson, 

a Nationwide Insurance Special Claims Representative, testified 

that he conducted a recorded interview of White in February 

2010, about four months after the fire. White essentially 

repeated to Thompson the statement he previously made to Adkins 

speculating that a tenant may have set the fire, and White 

omitted any mention of the Kinders.5

 Like Adkins, Thompson 

 5 Thompson was sent to interview White about a separate 

claim made by White under a Nationwide fire insurance policy for 

another fire—one that damaged White’s personal residence on 

(Continued)
17

testified that had White told him of the Kinders’ involvement, 

he would have notified the SIU for follow up with law 

enforcement. White’s statement to Thompson was charged in Count 

3—the accessory-after-the-fact charge. 

White renews the argument that he made throughout trial 

that this evidence was insufficient to prove that he acted with 

the intent to assist Kinder in avoiding apprehension. White 

contends that his statement to Thompson was nothing more than a 

“passing comment” to an insurance representative who was not 

connected to law enforcement and had not indicated to White any 

such connection existed. Thus, White concludes that there is 

nothing in evidence showing that he was aware any statement he 

made incriminating Kinder would be passed along to the police. 

The district court rejected White’s argument, pointing out that 

in light of the evidence that Kinder committed arson at White’s 

behest for the Nationwide insurance money, the jury could easily 

infer that White was aware that preventing Kinder’s apprehension 

was in his personal best interest and that his interview 

statement in fact did aid Kinder because Thompson would have 

 

February 14, 2010. During the interview, Thompson inquired 

about White’s previous fire-loss claims and the subject of the 

Van duplex fire arose. White successfully moved in limine to 

exclude any evidence of this February 2010 fire. Thus, the jury 

was unaware of the purpose of Thompson’s interview and heard a 

redacted recording of the interview. 
18

reported the matter to the Nationwide SIU. We agree with the 

district court. 

The dispute concerns only the third element of an 

accessory-after-the-fact charge—whether the government offered 

proof that White assisted Kinder for the purpose of 

“prevent[ing] [her] apprehension, trial, or punishment.” De La 

Rosa, 171 F.3d at 221. White does not dispute that there was 

substantial evidence that Kinder participated in the commission 

of the Van duplex arson and that White was aware of this offense 

because he had commissioned the Kinders to commit it. White 

argues there is no evidence of the requisite intent to assist, 

however, because he made his statement to an insurance agent, 

not a law enforcement agent. We disagree. Here, all the 

evidence must show is that he acted “in order to prevent the 

apprehension” of Kinder. Id. Based on the evidence, the jury 

could make a couple of obvious common-sense inferences. First, 

the jury could infer that White was well aware that helping 

Kinder avoid detection and arrest was in his personal best 

interest—as subsequently demonstrated by Kinder’s trial 

testimony incriminating White. Second, in light of the evidence 

that both law enforcement and the insurance company were 

interested in the origin of the fire and that common sense would 

tell a person that an insurance adjuster who found that a fire 

claim was really arson would turn that information over to law 
19

enforcement, it is a reasonable inference that White understood 

it was to his benefit in avoiding apprehension to cast suspicion 

on the tenants. Indeed, in view of these facts, the only 

logical purpose for White to attempt misdirection in his 

interview with Thompson was to ensure against even the very 

possibility that Kinder and then White himself would fall under 

police scrutiny. 

Viewing the evidence in the light most favorable to the 

government, we are satisfied that “any rational trier of fact 

could find the essential elements of the crime beyond a 

reasonable doubt.” United States v. Cone, 714 F.3d 197, 212 

(4th Cir. 2013). We conclude that White has not carried the 

“heavy burden” that accompanies a sufficiency of the evidence 

challenge, United States v. Foster, 507 F.3d 233, 245 (4th Cir.

2007), and we therefore affirm the district court’s denial of 

the motion for a judgment of acquittal on Count 3.6

 6 After oral argument, the panel directed the parties to 

submit supplemental briefs on whether it is permissible for 

White to be convicted and sentenced for accessory after the fact 

to an arson offense that he himself committed as a principal. 

See United States v. Taylor, 322 F.3d 1209, 1212 (9th Cir. 2003) 

(finding evidence sufficient to show violation of the “plain 

language” of 18 U.S.C. § 3, but concluding that § 3 was 

inapplicable given that defendant “was found guilty as a 

principal to the crime”); see also State v. Jewell, 409 S.E.2d 

757, 764 (N.C. App. 1991) (Wynn, J., dissenting) (“It stands to 

reason that . . . a principal felon cannot be an accessory after 

the fact to himself. . . .”). But see United States v. 

Triplett, 922 F.2d 1174, 1180 (5th Cir. 1991). Although White 

(Continued)
20

IV.

White’s final contention is that the district court 

incorrectly concluded that the Van duplex, for sentencing 

purposes, was a “dwelling” under U.S.S.G. § 2K1.4, the relevant 

sentencing provision for arson-related offenses. Under § 2K1.4, 

if the Van duplex is classified as a “dwelling,” the base 

offense level is 24, see U.S.S.G. § 2K1.4(a)(1)(B), but if the

duplex is categorized as “a structure other than . . . a 

dwelling,” the base level offense is 20, see U.S.S.G. § 

2K1.4(a)(2)(B). White argues that the Van duplex was no longer 

a “dwelling” at the time of the fire because it was vacant. 

This alleged error, White contends, resulted in an advisory 

sentencing range of 51 to 63 months rather than the 33-to-41-

months range that would have applied if the district court had 

not determined that the Van duplex was a “dwelling” under the 

guideline. 

In considering a sentencing court’s application of the 

guidelines, we review “legal conclusions de novo and . . . 

factual findings for clear error.” United States v. Layton, 564 

 

was guilty of aiding and abetting, an aider and abettor is 

considered a principal. See Tarkington v. United States, 194 

F.2d 63, 68 (4th Cir. 1952). Having had the benefit of the 

parties’ input on this issue, which was raised neither in 

district court nor on appeal, we are satisfied that reversal is 

not warranted under the plain error standard of review. We take 

no position on whether any error occurred in the first place. 
21

F.3d 330, 334 (4th Cir. 2009). The term “dwelling” is not 

defined in U.S.S.G. § 2K1.4 or the accompanying commentary. We 

accord undefined guideline terms their “ordinary, contemporary 

meaning.” United States v. Chacon, 533 F.3d 250, 257 (4th Cir. 

2008). In ordinary terms, a “dwelling” is a “house or other 

structure in which a person or persons live,” including “the 

apartment or building . . . occupied by a family as a place of 

residence.” Black’s Law Dictionary 505 (6th ed. 1990); see

United States v. Smith, 354 F.3d 390, 397-98 (5th Cir. 2003) 

(employing the Black’s Law Dictionary definition of “dwelling” 

for purposes of U.S.S.G. § 2K1.4); see also United States v. 

Ramirez, 708 F.3d 295, 302-03 (1st Cir. 2013) (using Black’s to 

define “dwelling” for purposes of U.S.S.G. § 4B1.2); United 

States v. McClenton, 53 F.3d 584, 587 (3d Cir. 1995) (same). 

The Van duplex clearly fell within the scope of the foregoing 

definition and functioned as a “dwelling” for more than 10 years 

before it burned down. White does not suggest otherwise. 

Instead, he argues that the duplex lost its character as a 

dwelling once the tenants vacated the premises. See United 

States v. Jackson, 22 F.3d 583, 585 (5th Cir. 1994). He likens 

his circumstances to those presented in Jackson, wherein the 

Fifth Circuit determined that the defendant did not burglarize a 

“dwelling” for purposes of U.S.S.G. § 4B1.2(1) by breaking into 

a vacant house. Jackson rejected “the government’s argument 
22

that the nature of the dwelling did not change by virtue of the 

seven year vacancy” and noted that “whether by vacancy, physical 

deterioration, altered use, or otherwise, a point in time exists 

at which a dwelling loses its character as a residence and 

becomes a ‘mere’ building.” Id. (emphasis added).

Nothing of the kind occurred here, however, as the Van 

duplex was vacant at most for a couple of weeks before the fire 

was set. There was absolutely no indication that the duplex had 

ever functioned or would ever function as anything other than a 

dwelling. As the Fifth Circuit observed in concluding that a 

three-month seasonal vacancy period did not remove a motel from 

“dwelling” status under § 2K1.4, 

[t]here is . . . a marked difference between the 

seven-year abandonment of the building in Jackson and 

the three-month seasonal vacancy of the motel. 

Whatever the “point in time” at which a building’s 

core nature is altered, it was not reached in just 

three months, particularly in light of the fact that 

the motel would again be occupied by visitors in the 

near future. 

Smith, 354 F.3d at 398. We are likewise confident the brief 

period during which the Van duplex was completely empty of 

tenants did not cause it to lose its essential character as a 

dwelling, especially since, as previously mentioned, one of the 

tenants was under no order of eviction and continued to maintain 

personal property in her unit at the time of the fire. The 

duplex, which still had power and was in a habitable condition, 
23

clearly had not been abandoned to the point that it could no 

longer be considered a “dwelling.” See United States v. Ingles, 

445 F.3d 830, 840 (5th Cir. 2006) (concluding that “a camp 

house” that had been vacant for several months at the time of 

the fire was still a “dwelling” under § 2K1.4 “in light of the 

fact that at the time of the fire the structure was furnished as 

a functioning residence”). We reject White’s argument and 

conclude that the district court did not clearly err in 

concluding the Van duplex was a “dwelling” within the meaning of 

U.S.S.G. § 2K1.4.7 

V.

For the foregoing reasons, we affirm White’s convictions 

and sentence in full.

AFFIRMED

 7 White’s Sixth Amendment challenge to the district court’s 

application of a two-level obstruction of justice enhancement 

under U.S.S.G. § 3C1.1 is clearly foreclosed by circuit 

precedent. See, e.g., United States v. Blauvelt, 638 F.3d 281, 

293 (4th Cir. 2011); United States v. Grubbs, 585 F.3d 793, 799 

(4th Cir. 2009); United States v. Benkahla, 530 F.3d 300, 312 

(4th Cir. 2008). Accordingly, we reject this claim.
WYNN, Circuit Judge, dissenting in part:

A person should not be held criminally liable both as a 

principal and as an accessory after the fact to himself. Here, 

Defendant was convicted of aiding and abetting arson, which the 

law does not distinguish from principal liability for the arson. 

Because I would hold that Defendant cannot also be convicted of 

being an accessory after the fact for the same arson, I 

respectfully dissent. 

I.

“[P]rovisions of the Federal Criminal Code” make plain that 

not only “‘whoever commits an offense’” but also whoever “‘aids, 

abets, counsels, commands, induces, or procures its commission, 

is a principal.’” Tarkington v. United States, 194 F.2d 63, 68 

(4th Cir. 1952) (quoting 18 U.S.C. § 2). In other words, “[t]he 

distinction between principals and accessories before the fact 

has been abolished.” Id.

In this case, a jury convicted Defendant of aiding and 

abetting arson. Defendant is, therefore, criminally liable as a 

principal for the arson, i.e., as someone who “commit[ted] [the] 

offense.” Id. (internal quotation marks and citation omitted) 

Defendant was also charged with and convicted of being an 

accessory after the fact. Specifically, per 18 U.S.C. § 3, 

“[w]hoever, knowing that an offense against the United States 
25

has been committed, receives, relieves, comforts or assists the 

offender in order to hinder or prevent his apprehension, trial 

or punishment, is an accessory after the fact.” 

In this case, Defendant misrepresented to an insurance 

agent that one of his tenants may have committed the arson in an 

attempt “to ensure against even the very possibility that Kinder 

and then White himself would fall under police scrutiny.” Ante

at 19.

In my view, the law does not allow Defendant to be 

responsible as a principal for the arson and for assisting 

himself after the fact. As the Ninth Circuit has explained, a 

defendant “should not be punished as an accessory after the 

fact, even though he assisted in preventing his own apprehension 

and the apprehension of his co-offender.” United States v. 

Taylor, 322 F.3d 1209, 1212 (9th Cir. 2003). This is because 

“[u]nder 18 U.S.C. § 3, the offense of accessory after the fact 

only occurs when a person assists an offender; the person 

committing accessory after the fact is not the ‘offender’ 

himself. To interpret § 3 otherwise would lead to the absurd 

result of subjecting every principal to an accessory after the 

fact charge.” Id.; see also State v. Jewell, 409 S.E.2d 757, 

764 (N.C. App. 1991) (Wynn, J., dissenting in part) (“A 

participant in a felony may no more be an accessory after the 

fact than one who commits larceny may be guilty of receiving the 
26

goods which he himself had stolen. . . . It follows that since 

an aider and abettor to a felony is treated the same as the 

principal that committed the felony offense, he too cannot be an 

accessory after the fact to that same offense.” (internal 

quotation marks and citation omitted)).

Such reasoning is supported by the fact that 18 U.S.C. § 3 

is “based upon” Skelly v. United States, 76 F.2d 483 (10th Cir. 

1935). 2 Fed. Jury Prac. & Instr. § 22:02 (6th ed. 2014); see 

also 18 U.S.C. § 3 (West ann.) Revision Notes & Leg. Reports

(same). In Skelly, the Tenth Circuit defined an accessory as 

“he who is not the chief in the offense, nor present at its 

performance, but is some way concerned therein, either before or 

after the fact committed” and as “one who participates in a 

felony too remotely to be deemed to principal.” 76 F.2d at 487 

(internal quotation marks and citations omitted). It defined 

“accessory after the fact” as “one who, knowing a felony to have 

been committed by another, receives, relieves, comforts, or 

assists the felon in order to hinder the felon’s apprehension, 

trial, or punishment.” Id. 

I appreciate that Defendant failed to preserve this issue 

and that we view it only through the plain error lens. That 

limits us to correcting those errors that are “plain” and that 

“affect substantial rights.” United States v. Olano, 507 U.S. 

725, 732 (1993) (internal quotation marks and citation omitted). 
27

Further, we generally refrain from intervening where the error 

does not seriously impact the fairness and integrity of the 

proceedings. Id.

While plain error is a high hurdle, I nevertheless conclude 

that Defendant clears it here. First, as a matter of law,

Defendant cannot be a principal offender and an accessory after 

the fact to himself. Therefore Defendant’s accessory after the 

fact conviction constitutes clear legal error.*

As for whether the error affected Defendant’s substantial 

rights, “in most cases it means that the error must have been 

prejudicial: It must have affected the outcome of the district 

court proceedings.” Olano, 507 U.S. at 734. Here, without 

question, it did. If the law had been applied correctly in this 

case, Defendant could not have been convicted both as a 

principal participant in the arson and as an accessory after the 

fact. In other words, the clear legal error directly affected 

the outcome of the district court proceedings.

In sum, I conclude that, as a matter of law, a defendant 

cannot be convicted as a principal offender and as an accessory 

 * The majority opinion cites United States v. Triplett, 922 

F.2d 1174 (5th Cir. 1991), as going the other way on this issue. 

While the Fifth Circuit undoubtedly allowed convictions for both 

principal and accessory-after-the-fact liability to stand, its 

opinion failed to acknowledge, let alone analyze, the conundrum 

of allowing a principal to be convicted of acting as an 

accessory after the fact to himself.
28

after the fact. Nevertheless, Defendant here was convicted of 

both. That constituted clear and prejudicial error that, in my 

view, seriously detracts from the fairness of the proceedings. 

Olano, 507 U.S. at 732. Accordingly, I would vacate Defendant’s 

accessory after the fact conviction and therefore respectfully 

dissent.