In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2879

United States of America,

Plaintiff-Appellee,

v.

Anthony Gallagher,

Defendant-Appellant.

Appeal from the United States District Court 

for the Central District of Illinois, Urbana Division.

No. 98-CR-20074--Michael P. McCuskey, Judge.

Argued April 3, 2000--Decided August 7, 2000

 Before Flaum, Chief Judge, and Bauer and Williams,

Circuit Judges.

 Flaum, Chief Judge. Defendant Anthony Gallagher

was convicted of arson in violation of 18 U.S.C.

sec. 844(i). The defendant now appeals that

conviction, arguing that the district court erred

in concluding that the government presented

evidence sufficient to establish that the barn he

was accused of maliciously damaging by fire was

then being used in interstate commerce or in an

activity affecting interstate commerce. The

defendant also appeals his sentence, contending

that the district court erroneously departed

upward from the applicable Sentencing Guidelines

range based on its conclusion that the

defendant’s criminal history category did not

adequately reflect the seriousness of his past

crimes. For the reasons stated herein, we affirm

both the defendant’s conviction and sentence.

I. Background

 For many years, Frank and Aline Herriott owned

and operated a Welsh pony business on Green Top

Farm near Seymour, Illinois. The business enjoyed

a national reputation for producing top-quality

Welsh ponies. In the early 1980s, the Herriotts

began corresponding with the defendant in

response to his inquiries about purchasing pony

carts and other equipment. At the time, and

unknown to the Herriotts, the defendant was
serving a prison sentence for a rape conviction

in Pennsylvania. 

 In 1986, Mr. Herriott died, and Mrs. Herriott

continued to operate the Welsh pony business with

the assistance of her daughter, Marjorie Plotner,

and Marjorie’s husband, Gene Plotner. Mrs.

Herriott also continued corresponding with the

defendant. In 1990, Mrs. Herriott married the

defendant while he was on parole in Pennsylvania.

Mrs. Herriott then arranged to have the

defendant’s parole transferred to Illinois so

that the two could live together on Green Top

Farm.

 After the defendant arrived at Green Top Farm,

he and Mrs. Herriott began selling her assets. In

total, the couple sold approximately forty

ponies, and the remainder of the herd went into

decline due to a lack of care. In addition, Mrs.

Herriott sold several homes that had been in the

family for generations. Mrs. Plotner believed

that the defendant convinced her mother to sell

the homes and the ponies and was keeping the

money for himself, and that the defendant was

seeing another woman. When Mrs. Plotner informed

her mother of these suspicions, Mrs. Herriott

refused to believe her. Eventually, the

relationship between Mrs. Herriott and Mrs.

Plotner deteriorated to the point that the

Plotners were no longer welcome at Green Top

Farm.

 In the fall of 1991, Mrs. Plotner called the

local sheriff’s office and requested that a

deputy be sent to Green Top Farm to check on her

mother. Mrs. Plotner testified that she requested

this visit because she was concerned about her

mother’s well-being in light of the defendant’s

criminal history and the age difference between

the two (approximately 40 years). Two sheriff’s

deputies were sent to Green Top Farm, where Mrs.

Herriott informed them that she was fine and

instructed them not to return.

 Shortly thereafter, Mrs. Plotner received a

telephone call from her mother asking Mrs.

Plotner to meet her at Green Top Farm. When Mrs.

Plotner arrived at the farm, her mother met her

on the front steps. According to Mrs. Plotner,

Mrs. Herriott stated: "If you guys don’t leave me

alone, you’re going to get me killed." The

defendant observed this conversation from a

distance, and Mrs. Plotner stated that it was her

belief that her mother was afraid of the

defendant.

 In November 1991, the defendant left Green Top

Farm and moved in with Irene Duffy, the real

estate agent Mrs. Herriott had employed to sell
her houses. Later that month, the defendant

returned to Green Top Farm with Duffy’s first

cousin, Wes Becker. During this visit Mrs.

Herriott gave the defendant money, but informed

him that it was the last payment he would

receive. According to Becker, the defendant

called Mrs. Herriott an "ugly bitch" as they were

driving away.

 On December 2, 1991, Mrs. Plotner telephoned

her mother and left a message on her answering

machine. At around 3:30 p.m. that same day, the

Plotners went to Green Top Farm to do some

chores. They noticed that Mrs. Herriott’s car was

in the driveway and assumed that the defendant

had taken her somewhere. At about 4:30 or 4:45

p.m., the Plotners finished their chores at Green

Top Farm and returned home. Mrs. Plotner again

attempted to contact her mother by telephone, but

was unsuccessful.

 At about 6:00 p.m. that day, the defendant

telephoned the Plotners and asked if Mrs. Plotner

had seen her mother. Mrs. Plotner testified that

this phone call was highly unusual given the

mutual dislike that existed between the Plotners

and the defendant. Mrs. Plotner told the

defendant that she had not seen her mother that

day. Mr. and Mrs. Plotner then immediately drove

to Mrs. Herriott’s home.

 When the Plotners arrived at Green Top Farm,

they used their key to open a locked door on the

east side of the house. Mrs. Plotner noticed that

the alarm system had not been turned on. Mrs.

Plotner also saw that immediately inside the door

to the house was an antique straight-back chair

perched on top of a stool. Mrs. Plotner stated

that she found this unusual because her mother

had once broken her shoulder and would not climb

on anything in order to reach something on a high

shelf. Mrs. Plotner testified that she could

think of no reason why the chair would be in that

position. 

 When they proceeded into the house, Mr. and

Mrs. Plotner found Mrs. Herriott lying

unconscious on the couch in the living room. Mrs.

Herriott was wearing a bathrobe with nothing on

underneath. Mrs. Plotner testified that she

regarded this as strange because her mother

usually wore her flannel nightgown and never

lounged around the house in a bathrobe. Mrs.

Plotner also testified that she found it unusual

that Mrs. Herriott was not wearing her glasses,

and that her clothes were strewn across a rocking

chair in the bedroom. The paramedics were called,

and Mrs. Herriott was taken to a hospital. She

remained in a coma until she died on December 19,

1991. 
 During the period in which Mrs. Herriott was in

a coma, Mrs. Plotner was appointed her temporary

guardian. Mrs. Plotner also hired a private

detective to investigate her mother’s death. On

December 10, 1991, the detective located Mrs.

Herriott’s glasses in the driveway of the house

next to the garage. One of the lenses was found

with the glasses, and the other was found

approximately one hundred feet away. Becker

testified that when he accompanied the defendant

to Green Top Farm on December 21, 1991 to pick up

some of the defendant’s clothes, the defendant

located the spot on the driveway where Mrs.

Herriott’s glasses were found and said, "This is

where they found her glasses." 

 Before her death, Mrs. Herriott transferred most

of her real property to a revocable trust. Under

the terms of that trust, Green Top Farm was

conveyed to Mrs. Plotner subject to a lifetime

leasehold to the defendant. The defendant’s

leasehold was to terminate if the defendant

remarried or failed to maintain the farm. Mrs.

Herriott also left the defendant a half interest

in her pony herd, with the remaining half going

to Mrs. Plotner. The will provided that if Mrs.

Plotner and the defendant could not agree on the

disposition of the animals, the herd would be

sold and the profits divided equally between the

two.

 On January 3, 1992, a complex of four barns on

Green Top Farm burned down, killing five ponies

and destroying approximately four thousand bales

of straw. The barns were uninsured. On December

18, 1998, the defendant was charged in a onecount indictment with arson, alleging that the

defendant maliciously damaged by fire the barns

located at Green Top Farm.

 The defendant was convicted of arson by a jury

on March 26, 1999. Prior to his sentencing on

that conviction, the government filed a notice of

its intent to ask for an upward departure from

the otherwise applicable Sentencing Guidelines

range based upon its belief that this range did

not adequately reflect the defendant’s past

criminal history. Among other things, the

government sought a departure based on its

contention that the defendant murdered Mrs.

Herriott.

 During the sentencing hearing, a forensic

pathologist testified that Mrs. Herriott died

from a blow to the head, and not from a fall or

other accidental forces. The district court

concluded from this testimony that Mrs. Herriott

was murdered, and noted that the defendant had

both the motive and opportunity to kill her.
After considering the evidence surrounding the

alleged crime against the backdrop of the

defendant’s motive and opportunity, the district

court determined, by a preponderance of the

evidence, that the defendant murdered Mrs.

Herriott. The district court then departed upward

three criminal history points based on this

finding, and the defendant was sentenced to 120

months in prison. The defendant now appeals.

II. Analysis

A. Sufficiency of the Evidence

 The defendant first argues that the government

failed to meet its burden of proof as to the

interstate commerce element of the arson crime of

which he was charged and convicted. See United

States v. Zabic, 745 F.2d 464, 474 (7th Cir.

1984) (stating that the interstate commerce

element of arson must be established beyond a

reasonable doubt). The federal arson statute

makes it illegal for an individual to

"maliciously damage[ ] or destroy[ ], or attempt[

] to damage or destroy, by means of fire . . .

any building, vehicle, or other real or personal

property used in interstate . . . commerce or in

any activity affecting interstate . . . commerce

. . . ." 18 U.S.C. sec. 844(i). According to the

defendant, the evidence the government presented

at trial was insufficient to establish beyond a

reasonable doubt that the barns he was accused of

maliciously damaging by fire were used in

interstate commerce or in an activity affecting

interstate commerce.

 In support of his insufficiency of the evidence

argument, the defendant contends that the horse

business at Green Top Farm ended, and the barns

were removed from interstate commerce, upon the

death of Mrs. Herriott. The defendant first notes

that given his lifetime leasehold interest in the

farm, the defendant had the exclusive right to

use the barns in question and had no intention of

continuing the pony business or of using those

barns in interstate commerce. The defendant also

argues that the disposition of the pony herd was

left to him and Mrs. Plotner and, because the two

were never going to agree on the proper way of

managing the ponies, the pony herd was going to

be sold with the profits split between the two

parties. The defendant contends that because he

did not intend to use the barn in interstate

commerce during the course of his leasehold, and

because the pony business was going to be

dissolved absent an unlikely agreement to the

contrary between himself and Mrs. Plotner, Mrs

Herriott’s death effectively removed the barns

from interstate commerce. 

 The defendant faces a heavy burden in
attempting to demonstrate that the government did

not meet its burden of proof as to the interstate

commerce element of his arson conviction. "We

review questions of sufficiency of the evidence

’in the light most favorable to the government

and ask whether any rational trier of fact could

find the essential elements of the crime beyond

a reasonable doubt.’" United States v.

Richardson, 208 F.3d 626, 631 (7th Cir. 2000)

(quoting United States v. Rogers, 89 F.3d 1326,

1334 (7th Cir. 1996)). "Only when the record

contains no evidence, regardless of how it is

weighed, from which the jury could find guilt

beyond a reasonable doubt, may an appellate court

overturn the verdict." United States v. Lundy,

809 F.2d 392, 396 (7th Cir. 1987) (quoting

Brandom v. United States, 431 F.2d 1391, 1400

(7th Cir. 1970)). Moreover, in order to satisfy

the interstate commerce element of 18 U.S.C. sec.

844(i), the government need only establish that

the arson in question had a minimal effect on

interstate commerce. See United States v. Hicks,

106 F.3d 187, 189 (7th Cir. 1997); United States

v. Martin, 63 F.3d 1422, 1426 (7th Cir. 1995);

United States v. Menzer, 29 F.3d 1223, 1230 (7th

Cir. 1994). Because of the deferential review of

sufficiency of the evidence claims and the low

threshold for establishing the interstate

commerce element, the defendant must demonstrate

that no rational trier of fact could have found

beyond a reasonable doubt that the barns the

defendant was accused of maliciously damaging by

fire had even a minimal effect on interstate

commerce.

 After a review of the record, we conclude that

the government proved a sufficient nexus between

the defendant’s arson and interstate commerce.

Although the defendant may be correct that the

pony business was unlikely to continue as a

viable commercial entity under the stewardship of

the defendant or Mrs. Plotner, that assertion

does not establish that the barns were removed

from interstate commerce upon the death of Mrs.

Herriott. This is not a case, as the defendant

suggests, where the barns had only a past

connection to interstate commerce. See, e.g.,

United States v. Gaydos, 108 F.3d 505 (3d Cir.

1997) (finding no connection to interstate

commerce where a rental property had been removed

from the rental market and where there was no

intent to resume renting the property). Rather,

even if we assume that the business was likely to

be dissolved following Mrs. Herriott’s death, the

key point is that it had not been dissolved at

the time the arson was committed and consequently

there was no cessation of business activity. See

United States v. Wing, 104 F.3d 986 (7th Cir.

1997) (finding a sufficient connection to

interstate commerce where the property destroyed
received out-of-state shipments of supplies);

Martin, 63 F.3d at 1427-28 (holding that the

destruction of a rental property that was

presently unoccupied but still available for rent

satisfied the interstate commerce element of the

arson statute). After the fire, much of the pony

herd was sold at a public auction. In addition,

at the time the defendant set fire to the barns

in question, those barns sheltered breeding

stallions that were also to be sold. In short, at

the time the defendant set fire to the barns,

those barns were still actively employed in the

conduct of a pony business that was national in

scope. See Jones v. United States, 120 S.Ct.

1904, 1909-10 (2000) (stating that the central

inquiry under the federal arson statute is

whether the damaged property is being actively

employed in a commercial enterprise). In these

circumstances, we cannot conclude that no

rational trier of fact could have determined that

the government established beyond a reasonable

doubt the interstate commerce element of the

defendant’s arson.

B. The Sentencing Departure

 The defendant next challenges the district

court’s decision to depart upward from the

Sentencing Guidelines range otherwise applicable

to the defendant’s conduct. During the

defendant’s sentencing hearing, the district

court determined that the government proved by a

preponderance of the evidence that the defendant

committed past uncharged crimes, including the

murder of Mrs. Herriott. The district court

therefore departed upward from the applicable

Sentencing Guidelines range so that the sentence

would adequately reflect these past criminal

activities. The defendant appeals this departure,

arguing that the district court erred in finding

that the government proved by a preponderance of

the evidence that the defendant murdered Mrs.

Herriott.

 The Sentencing Guidelines permit a district

court to depart upward from the otherwise

applicable sentencing range "[i]f reliable

information indicates that the criminal history

category does not adequately reflect the

seriousness of the defendant’s past criminal

conduct or the likelihood that the defendant will

commit other crimes . . . ." U.S.S.G. sec. 4A1.3;

see also 18 U.S.C. sec. 3661 ("No limitation

shall be placed on the information concerning the

background, character, and conduct of a person

convicted of an offense which a court of the

United States may receive and consider for the

purpose of imposing an appropriate sentence.").

In order to justify such a departure, the

government must prove the alleged past criminal
conduct on which the departure is based by a

preponderance of the evidence. See United States

v. Klund, 37 F.3d 1249, 1252 (7th Cir. 1994). Our

review of the district court’s decision to depart

upward is deferential, see United States v.

Fonner, 920 F.2d 1330, 1332 (7th Cir. 1990)

(citing United States v. Marshall, 908 F.2d 1312,

1326 (7th Cir. 1990) (en banc)), and "’we give

considerable leeway to a district court’s

determination of the criminal history category

that most accurately reflects the defendant’s

true criminal history.’" United States v. Brown,

999 F.2d 1150, 1153 (7th Cir. 1993) (quoting

United States v. Schweihs, 971 F.2d 1302, 1319

(7th Cir. 1992)).

 In this case, the district court departed

upward from a criminal history category of V to

a criminal history category of VI, and from an

offense level of 22 to an offense level of 24,

based on its conclusion that the defendant

committed past uncharged crimes, including the

murder of Mrs. Herriott. In concluding that the

defendant murdered Mrs. Herriott, the district

court first found that the defendant had both the

motive and the opportunity to commit the crime.

As to motive, the district court stated that the

defendant had two separate reasons for murdering

Mrs. Herriott: to profit financially from the

disposition of Mrs. Herriott’s estate and to

prevent Mrs. Herriott from revealing the fraud

that he perpetrated against her. In regard to

opportunity, the district court found that the

defendant could not account for his whereabouts

during the evening of December 1, 1991 and the

morning of December 2, 1991, the time during

which Mrs. Herriott was allegedly attacked. In

light of the defendant’s multiple motives for

murdering Mrs. Herriott, and in consideration of

the fact that the defendant was the only suspect

with the opportunity to commit the crime, the

district court determined that the physical and

testimonial evidence linking the defendant to the

crime was sufficient to prove by a preponderance

of the evidence that he committed the murder.

 The physical and testimonial evidence introduced

at trial regarding Mrs. Herriott’s death included

testimony from a forensic pathologist indicating

that the cause of Mrs. Herriott’s death was a

blow to the head. The district court also

considered evidence that the door was locked when

Mrs. Plotner arrived at the house and that the

alarm was turned off, and it concluded that the

murder was committed by someone who, like the

defendant, possessed a key to the house. The

district court noted the unusual state of the

house, and the appearance that someone had staged

the scene to look like an accident, and found

that these efforts indicated that the individual
involved wished to cover up the murder as if he

expected to be a suspect. Lastly, the district

court weighed the testimony of Wes Becker and

found that the defendant had independent

knowledge of the location at which Mrs.

Herriott’s glasses were found in the driveway.

This evidence, combined with the defendant’s

motive and opportunity, was enough to convince

the district court that the government proved by

a preponderance of the evidence that the

defendant murdered Mrs. Herriott.

 In reviewing the district court’s decision to

depart upward, we "overturn a factual finding

only if we are firmly convinced that a mistake

was made." United States v. Spears, 159 F.3d

1081, 1088 (7th Cir. 1998). Because we do not

find any clear error in the district court’s

findings of fact, we consider only whether the

district court abused its discretion in finding

by a preponderance of the evidence that the

defendant murdered Mrs. Herriott. See United

States v. Trigg, 119 F.3d 493, 502 (7th Cir.

1997) (stating that departures in the criminal

history category are generally reviewed for an

abuse of discretion). After a review of the

factual record, we agree with the district court

that reliable evidence indicates that Mrs.

Herriott was murdered, and that the defendant had

both clear motive and opportunity to commit the

crime. Furthermore, the physical evidence

indicates that the crime was committed by someone

close to Mrs. Herriott, and the defendant’s

knowledge of the location at which the glasses

were found links him to the crime. Against this

factual backdrop, and in light of our deferential

standard of review, we cannot conclude that the

district court erred in departing upward from the

otherwise applicable sentencing range based on

its conclusion that the defendant’s criminal

history category did not adequately reflect his

past crimes. 

III. Conclusion

 We hold that the government introduced

sufficient evidence to establish the interstate

commerce element of the defendant’s crime of

arson and to prove by a preponderance of the

evidence that the defendant murdered Mrs.

Herriott. We therefore AFFIRM both the defendant’s

conviction and sentence.