PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4505

LUIS CRISTOBAL,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CR-00-83)

Argued: February 27, 2002

Decided: June 5, 2002

Before WILKINSON, Chief Judge, and WILLIAMS and

GREGORY, Circuit Judges.

Affirmed by published opinion. Judge Gregory wrote the opinion, in

which Chief Judge Wilkinson and Judge Williams joined. 

COUNSEL

ARGUED: Kelly Anne Halligan, LEVIT, MANN & HALLIGAN,

P.C., Ashland, Virginia, for Appellant. N. George Metcalf, Assistant

United States Attorney, Richmond, Virginia, for Appellee. ON

BRIEF: Paul J. McNulty, United States Attorney, Richmond, Virginia, for Appellee. 
OPINION

GREGORY, Circuit Judge: 

After a bench trial, Luis Cristobal was convicted on twenty-two

counts of a twenty-three count indictment for, among other crimes,

setting homemade explosive devices under two pickup trucks and at

the door of an area business. On appeal, Cristobal contends that the

district court erred in 1) denying his motion to suppress statements

made while he was in the hospital, 2) rejecting his affirmative defense

of insanity, 3) convicting him on two counts of maliciously damaging

a vehicle used in or affecting interstate commerce, and 4) enhancing

his sentence on three counts under 18 U.S.C. § 924(c)(1)(C).1 For the

reasons set forth below, we affirm. 

I.

Sometime in 1998, appellant Luis Cristobal began experiencing

personal problems that he claims were the result of his wife’s philandering. By 2000, the couple had separated, and Cristobal blamed his

wife for the breakdown in the marriage. Cristobal alleges that his

stress over his wife’s affairs "mutated into delusional psychosis." 

During the early morning hours of February 7, 2000, Cristobal set

homemade explosive devices in three locations. He placed one device

under a pickup truck driven by David Haston, a man he suspected of

having an affair with his wife. He placed the second device under a

pickup truck driven by his wife’s brother, Joseph Michael. Cristobal

placed the last device outside a doorway of a building that housed

Colonial Iron Works, Inc., a business owned and operated by Joseph

Michael.2

1Cristobal’s remaining sufficiency of the evidence arguments are all

predicated upon his claim that the evidence did not show he fired his gun

at Officer Melton. We have carefully reviewed the record and are satisfied that the evidence, viewed in a light most favorable to the prosecution, supports such a finding. 

2The devices, which Cristobal began constructing days earlier, were

made of steel box tubing, a broken lightbulb, black powder and shrapnel.

The bomb placed at Colonial Iron Works was also made with a timing

device, gasoline and acetylene gas. 

2 UNITED STATES v. CRISTOBAL
Both explosive devices placed under the pickup trucks were

designed to and did explode shortly after Haston and Michael started

their engines later that morning. Haston and Michael sustained injuries, though their injuries were not life threatening. The device placed

at Colonial Ironworks exploded at 5 a.m. that same morning. Fortunately, losses were minimal and no one was injured.3

After an initial investigation, Cristobal, who could not be located,

was named as the primary suspect. Searches of his apartment and

workplace uncovered additional evidence, including bomb making

materials and a hand drawn picture depicting Cristobal surrounded by

serpents, each serpent bearing the name of one of his victims.4 A copy

of this picture was also found in the beds of the pickup trucks after

the bombings. 

A search for Cristobal was undertaken by local, state, and federal

authorities. On February 24, 2000, special agents of the Bureau of

Alcohol, Tobacco and Firearms (BATF), acting on several leads, traveled to the Dinwiddie Church of Christ in Dinwiddie, Virginia in

search of Cristobal. Virginia State Police Trooper Ed Melton, on special assignment with BATF, located a crawl space beneath the church

altar area. Armed with a pistol in his fanny pack, Melton crawled into

the space, which was approximately 17′(L) by 5′(W) by 2.5′(H). As

Melton crawled through the space, he saw Cristobal crouched behind

a stud wall. Melton shouted for Cristobal to "come on out," and when

Cristobal did not respond, Melton removed the pistol from his pack.

3Cristobal had attempted to pour gasoline and acetylene under a doorway at Colonial Iron Works through a rubber tube so that when the bomb

exploded it would cause the gasoline to ignite inside the building. The

gasoline and acetylene did not fully ignite. 

4A copy of the picture was found at Cristobal’s workplace, and the

original picture, in a frame, was found hanging on a wall in Cristobal’s

apartment. Behind the picture, investigators found a handwritten, encrypted note. Cristobal stipulated to the decryption of the note, which read:

I will kill Jack Fred Dave and Reggi 

first Fred and Jack Dave 

then I’m going to Jacksonville kill Reggi

and then I will be back and kill Jack Rick and Glen. 

J.A. 119-20 (cross-out in original). 

UNITED STATES v. CRISTOBAL 3
Melton shouted "Police" and commanded Cristobal to freeze, but

again Cristobal did not respond. When Melton saw that Cristobal was

armed and pointing a gun directly at him, he ordered Cristobal twice

to drop the gun. Cristobal did not drop the gun. Melton then fired two

volleys of shots at Cristobal, using approximately ten rounds. Cristobal was hit in the upper chest, right arm and elbow, right shoulder,

and ring finger of his right hand. Seriously injured, Cristobal was

pulled from the crawl space beneath the altar and transferred to the

Medical College of Virginia in Richmond, Virginia.5

Cristobal’s medical records indicate that following emergency surgery, he was placed in soft restraints because he had exhibited "threatening or dangerous behavior" to himself. The next morning, at

approximately 10:00 a.m., Special Agents Brian Swann and Kristen

Tomasetti spoke with Amy Chodrov, a registered nurse who was

working in the surgical care trauma unit that day. Agent Swann spoke

with Nurse Chodrov to ascertain whether Cristobal was mentally and

physically capable of being interviewed. Nurse Chodrov informed

Swann that Cristobal was oriented at that time, and Agent Swann

began his interview with Cristobal at 10:17 a.m., while Agent Tomasetti took notes.6

Before asking Cristobal any questions that could be incriminating,

Agent Swann read Cristobal his Miranda rights, which Cristobal

waived. During the interview, which lasted just under an hour,7 Cristobal confessed to setting the explosive devices. He communicated in

English, his speech was not slurred, he never nodded off or slept, nor

did he indicate in any way that he was under a narcotic stupor. Like5Following the incident at the church, forensic investigators searched

the crawl space beneath the altar. In addition to the .45 caliber pistol

Cristobal pointed and fired at Melton, they found an SKS assault rifle,

changes of clothes, a wig, a stun gun, a gas mask, and a fourth explosive

device that was similar in composition to those used against Haston and

Michael. 

6Unbeknownst to Swann, the court had appointed an attorney by telephone to represent Cristobal the same morning the interview took place.

7During this time, four breaks were taken. Medical staff checked on

Cristobal during these breaks. 

4 UNITED STATES v. CRISTOBAL
wise, Cristobal never asked to stop the interview, and his confession

was detailed.8

On March 8, 2000, a Federal Grand Jury returned a twenty-three

count indictment against Cristobal. He pled not guilty and moved to

suppress his confession and suppress physical evidence seized pursuant to the February 7, 2000 search warrant. The district court allowed

a lengthy suppression hearing, which included testimony from Cristobal’s ex-wife, a previous employer, the trauma surgeon who performed Cristobal’s surgery, the trauma resident and the registered

nurse covering the hospital’s intensive care unit after Cristobal’s surgery. Several law enforcement agents, including agents Swann and

Tomasetti, also testified at the hearing. The district court denied the

motions, and after a two and a half day bench trial, convicted Cristobal on twenty-two counts of the indictment: 1) attempted voluntary

manslaughter, in violation of 18 U.S.C. § 1112, 2) assaulting, resisting, or impeding a federal officer, in violation of 18 U.S.C. § 111, 3)

possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922, 4) using, carrying or discharging firearm during and in relation

to a crime of violence, 18 U.S.C. § 924(c)(1)(A), 5) three counts of

possession of a firearm during and in relation to a crime of violence,

in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii), 6) four

counts of possession of a firearm made in violation of Chapter 53 of

Title 26, 26 U.S.C. § 5861(c), § 5871, 7) four counts of possession of

an unregistered firearm, in violation of 26 U.S.C. § 5861(d), § 5871,

8) four counts of unlawful making of a destructive device, in violation

of 26 U.S.C. § 5822, § 5861(f), § 5871, 9) two counts of malicious

damage and destruction of a vehicle used in interstate commerce or

affecting interstate commerce, in violation of 18 U.S.C. § 844(i), and

8Later that afternoon, at approximately 3:30 p.m., Cristobal made further incriminating statements to Michael Talbert, a special agent with

BATF who had been assigned to guard duty. Agent Talbert approached

Cristobal after hearing Cristobal moaning. Cristobal stated that he was

"so sorry" for making the officer (Trooper Melton) shoot him. Agent Talbert then followed up on Cristobal’s apology with a few questions, without re-reading Cristobal the Miranda warnings. Agent Talbert explained

that when he spoke with Cristobal, Cristobal appeared coherent. Cristobal did not nod off or slur his words, and he spoke to the officer in

English. 

UNITED STATES v. CRISTOBAL 5
10) malicious damage and destruction of a building used in or affecting interstate commerce, in violation of 18 U.S.C. § 844(i). The court

sentenced Cristobal to a total of two life sentences plus 35 years. 

II.

We first examine Cristobal’s claim that the district court erroneously denied his motion to suppress statements made while he was in

the hospital. There is no dispute that Agent Swann obtained Cristobal’s confession after advising Cristobal of his Miranda rights.

Though he was advised of his rights, and though he indicated to

Agent Swann that he wished to waive those rights, Cristobal asserts

1) that his Miranda waiver was not voluntary, knowing or intelligent,

see Miranda v. Arizona, 384 U.S. 436, 444 (1966), and 2) that his

statements given after the waiver were involuntary and thus in violation of his Fifth Amendment right to due process. We address each

contention in turn. 

A.

The inquiry into whether an individual waived effectuation of the

rights conveyed in the Miranda warnings has two distinct dimensions.

Edwards v. Arizona, 451 U.S. 477, 482 (1981). First, the relinquishment of the right "must have been voluntary in the sense that it was

the product of free and deliberate choice rather than intimidation,

coercion, or deception." Moran v. Burbine, 475 U.S. 412, 421 (1986).

Second, "the waiver must have been made with a full awareness of

both the nature of the right being abandoned and the consequences of

the decision to abandon it. Only if the ‘totality of the circumstances

surrounding the interrogation’ reveal both an uncoerced choice and

the requisite level of comprehension may a court properly conclude

that the Miranda rights have been waived." Id. Cristobal insists that

the totality of the circumstances demonstrates his waiver was not only

involuntary, but was also not knowingly and intelligently given. After

carefully reviewing the record, we find to the contrary on each assertion. 

1.

Cristobal’s statements must be suppressed if his decision to waive

his Fifth Amendment privilege was involuntarily made. We engage in

6 UNITED STATES v. CRISTOBAL
the same inquiry when analyzing the voluntariness of a Miranda

waiver as when analyzing the voluntariness of statements under the

Due Process Clause. See Colorado v. Connelly, 479 U.S. 157, 169

(1986) ("There is obviously no reason to require more in the way of

a "voluntariness" inquiry in the Miranda waiver context than in the

Fourteenth Amendment confession context."). The test for determining whether a statement is involuntary under the Due Process Clause

"is whether the defendant’s will has been ‘overborne’ or his ‘capacity

for self-determination critically impaired,’" United States v. Pelton,

835 F.2d 1067, 1071 (4th Cir. 1987) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)); see also United States v. Dickerson, 530 U.S. 428, 434 (2000), because of coercive police conduct.

Colorado v. Spring, 479 U.S. 564, 574 (1987). To determine whether

a defendant’s will has been overborne or his capacity for self determination critically impaired, courts must consider the "totality of the circumstances," including the characteristics of the defendant, the setting

of the interview, and the details of the interrogation. Pelton, 835 F.3d

at 1071. Though an appellate court must make an independent determination on the issue of voluntariness, the district court’s findings of

fact on the circumstances surrounding the confession are to be

accepted unless clearly erroneous. Id. at 1072. Our review of the

record leads us to conclude that Cristobal’s waiver was indeed voluntary. We cannot find, as Cristobal asserts, that his will was overborne

by the circumstances of the hospital interrogation. 

Historically, cases of gross abuse have allowed courts to easily

deem certain confessions involuntary. Undoubtedly, an accused’s will

may be overborne when he or she is subjected to severe physical

abuse, see Brown v. Mississippi, 297 U.S. 278 (1936), held incommunicado and questioned for over 36 hours without sleep or rest, see

Ashcraft v. Tennessee, 322 U.S. 143 (1944), given "truth serums," see

Townsend v. Sain, 372 U.S. 293 (1963), or threatened with a loaded

gun while wounded, see Beecher v. Alabama, 389 U.S. 35 (1967).

The crucial difference between these cases and the case at hand is that

Cristobal’s waiver (and subsequent confession) was not the result of

coercive police activity. 

Coercive police activity is a necessary predicate to a finding that

a confession is not "voluntary" within the meaning of the Due Process

Clause of the Fourteenth Amendment. Connelly, 479 U.S. at 167;

UNITED STATES v. CRISTOBAL 7
United States v. Braxton, 112 F.3d 777, 780 (4th Cir. 1997) (en banc).

As such, coercive police activity is also a necessary predicate to a

finding that a waiver of Miranda rights is not voluntary. Connelly,

479 U.S. at 169-70. In determining whether a defendant’s will has

been overborne, the Court has focused on the "crucial element of

police overreaching." Id. at 163 (collecting cases). While each case

has turned on its own set of factors justifying the conclusion that

police conduct was oppressive, "all have contained a substantial element of coercive police conduct." Id. at 163-64. 

The fact that Cristobal had been given pain killers and narcotics

such as morphine is not enough to render his waiver involuntary. In

making a determination on whether one’s will has been overborne, we

certainly must take into consideration "the characteristics of the

defendant." Pelton, 835 F.2d at 1071. However, a deficient mental

condition (whether the result of a pre-existing mental illness or, for

example, pain killing narcotics administered after emergency treatment) is not, without more, enough to render a waiver involuntary.

See Connelly, 479 U.S. at 164-65. "[W]hile mental condition is surely

relevant to an individual’s susceptibility to police coercion, mere

examination of the confessant’s state of mind can never conclude the

due process inquiry." Connelly, 479 U.S. at 165. 

Because we cannot look to mental condition alone when determining the voluntariness of Cristobal’s waiver, we must ultimately focus

on the actions of the law enforcement officials to determine if police

overreaching occurred in this case. We find that it did not. The evidence here does not show that law enforcement officials exploited

Cristobal’s weakened condition with coercive tactics. See Connolly,

479 U.S. at 165. Cristobal never requested not to be interviewed due

to pain. See United States v. Guay, 108 F.3d 545, 550 (4th Cir. 1997).

No officer harmed or threatened to harm Cristobal if he did not waive

his rights and answer Agent Swann’s questions. In fact, Agent Swann

did not pressure Cristobal in any way to waive his rights. Rather,

Agent Swann was careful to 1) ensure that Cristobal was alert before

speaking with him, 2) introduce himself to Cristobal and advise Cristobal of the nature of the investigation, 3) read Cristobal his Miranda

rights, and 4) make sure, even after the waiver, that Cristobal was in

fact a willing participant. While there were other agents in the hospital room at the time of the interview (taking notes or serving as

8 UNITED STATES v. CRISTOBAL
guard), no other agents engaged in conversation with Cristobal. This

is simply not a case where law enforcement has attempted to "wring[ ]

a confession [or Miranda waiver] out of an accused against his will."

Blackburn v. Alabama, 361 U.S. 199, 206-07 (1960).9

2.

Because a waiver may very well have been voluntary (that is,

uncoerced) and yet given without a knowing and intelligent waiver of

Miranda rights, see Moran v. Burbine, 475 U.S. at 421, it is not

enough for us to find that Cristobal voluntarily waived his rights. We

must also determine whether the waiver was knowing and intelligent.

Unlike the issue of voluntariness, police overreaching (coercion) is

not a prerequisite for finding that a waiver was not knowing and intelligently made. Id.; see United States v. Bradshaw, 935 F.2d 295, 299

(D.C. Cir. 1991). 

Reviewing the totality of the circumstances, we find that Cristobal

understood he had the right to remain silent and that anything he said

could be used as evidence against him. See Colorado v. Spring, 479

U.S. 564, 574 (1987). As the district court found, though Cristobal

was born in Cuba, he was equally capable in English and Spanish.

9Cristobal seems to suggest that coercion and police overreaching

occurred here merely because the agents did not wait until Cristobal was

released from the hospital or transferred out of intensive care before subjecting him to questioning. We cannot, without serious repercussions,

agree with this argument. If police conduct could be deemed coercive

simply because an interrogation occurs while a suspect is in the hospital,

law enforcement officers would be faced with a serious dilemma—wait

until suspects are released (and thus risk losing valuable crime-solving

or further crime-preventing information), or risk suppression of statements necessary for conviction. We certainly recognize that there are

many scenarios that could render a hospital confession involuntary.

Because, in many instances, hospital patients are weakened physically

and perhaps mentally, law enforcement officials must be cautious not to

exploit suspects’ conditions with coercive tactics. In this case, Agent

Swann certainly acted with caution, and as such, the circumstances here

do not warrant a finding of involuntariness. The mere fact that Agent

Swann did not wait to interview Cristobal does not amount to police

overreaching. 

UNITED STATES v. CRISTOBAL 9
Cristobal’s ability to understand his rights was not hindered in any

way by the fact that English was his second language. The evidence

also showed that Cristobal had been Mirandized on at least one other

occasion. 

Because we find no coercive police activity (and thus the waiver

was voluntary), it is in our inquiry into whether Cristobal’s waiver

was knowing and intelligent that his mental condition due to the pain

killers and narcotics is the most relevant. Pain, on its own, will generally not suffice to render a waiver invalid. However, we recognize

that there are situations where, after receiving certain painkillers and

other narcotics, a person might be incapable of making a reasoned

decision to abandon his or her rights. 

Unfortunately for Cristobal, nothing in the record indicates that he

was incapable of giving a knowing and intelligent waiver of his

rights. The record merely evidences the amount of medication Cristobal received, it does not establish the medication’s effect on Cristobal.

As such, we cannot speculate whether the amounts given to Cristobal

could have affected his judgment or rendered him incapable of making an informed decision or incapable of thinking rationally. 

There simply is no evidence that the drugs had an adverse effect

on Cristobal’s ability to think rationally. To the contrary, the uncontroverted medical testimony before us indicates that Cristobal was

alert and coherent at the time of the interview. Medical records indicating that a suspect had been given narcotics, with no supporting evidence as to the effects of those narcotics (on the individual or even

in general) are not sufficient to render a waiver of Miranda rights

unknowing or unintelligent. Were we to find Cristobal’s waiver not

knowing and intelligent based on these facts and with no evidence of

the effects of the medication on him, we would essentially be stating

that whenever a defendant can show that he was given medication, his

Miranda waiver was per se ineffective. This is a step we are quite

unwilling to take.10 Accordingly, the district court was correct in finding that Cristobal’s Miranda waiver was knowing and intelligent. 

10Cristobal also claims that his waiver was invalid because the morning

of the interview, the court had, on its own, appointed counsel to represent

10 UNITED STATES v. CRISTOBAL
B.

In addition to arguing that his waiver was invalid, Cristobal also

asserts that his statements, all given after the waiver, were involuntary

under the Fifth Amendment, which guarantees that "[n]o person . . .

shall be compelled in any criminal case to be a witness against himself . . . without due process of law." U.S. Const. amend. V. Because

we find that Cristobal’s waiver was given voluntarily, and because we

find no intervening coercion on the part of the agents, it follows that

the statements given after the waiver were voluntary as well. Thus,

Cristobal’s argument here is without merit. 

Cristobal relies heavily on Mincey v. Arizona, 437 U.S. 385 (1978),

where the Supreme Court found a hospital confession was involuntarily given. This, however, is not a case where the circumstances of a

hospital interview necessitate a finding of involuntariness. Mincey is

easily distinguished. 

In Mincey, the "barely conscious" suspect, "depressed almost to the

point of coma," expressed his wish not to be interrogated without a

lawyer on numerous occasions. Mincey, 437 U.S. at 399 (emphasis

added). Many of Mincey’s answers were unresponsive, and he complained to the officer interrogating him that he was confused and

unable to think. Id. at 400. Despite Mincey’s "entreaties to be let

alone," the officer only ceased the interrogation during intervals when

Mincey lost consciousness. Id. at 401. The Court found that Mincey’s

statements were "not the product of his free and rational choice," and

that his will was "simply overborne." Id. at 401-02. 

Here, the record clearly reflects that Cristobal waived his Miranda

rights before any questioning began. After his waiver, Cristobal never

him and he was not notified of counsel’s existence, nor was his counsel

notified of the interrogation. The evidence shows that Agent Swann was

not aware that the court had appointed counsel. However, because Cristobal’s voluntary decision to speak was made with full awareness and

comprehension of his Miranda rights, the waiver was valid, even if it

could be shown that the police knew counsel had been appointed and

concealed that fact from Cristobal. Moran v. Burbine, 475 U.S. 412, 423-

24 (1986). 

UNITED STATES v. CRISTOBAL 11
asked for the questioning to stop. He never indicated a desire not to

confess. No agent harmed or threatened to harm Cristobal if he did

not answer their questions. He was not purposely held incommunicado or in seclusion, and he was not subjected to continuous and

unrelenting questioning. See United States v. Van Metre, 150 F.3d

339, 348 (4th Cir. 1998). Unlike the suspect in Mincey, Cristobal’s

answers to questions were lucid and in fact very detailed. Cristobal

explained, among other things, how he had constructed the explosive

devices, what materials he used, and the order in which he placed the

explosive devices in the various locations. He explained where he had

been and what he had been doing in the time between the bombings

and his apprehension, and he informed Agent Swann about the manner in which he had obtained the other weapons he possessed while

under the crawl space in the church. Though it was obvious to the

officers that Cristobal was in pain, he did not slur his words during

the interview, he never lapsed into unconsciousness, nodded off or

went to sleep. When asked, on more than one occasion, how he was

feeling and whether he wanted to continue, he responded that he

wished to continue the interview. During the interview, Cristobal

appeared to the agents to be contrite and anxious to respond to questions to explain what had happened and why. For all these reasons,

we find that Cristobal’s confession was indeed voluntary. The district

court did not err in denying Cristobal’s motion to suppress. 

III.

Cristobal next argues that the district court, acting as fact finder,

erred in rejecting his insanity defense. Under the Insanity Defense

Reform Act of 1984, a defendant who raises the affirmative defense

of insanity has the burden of proving, by clear and convincing evidence, that at the time of the offense, he was unable to appreciate the

nature and quality or the wrongfulness of his acts because of a severe

mental disease or defect. See 18 U.S.C. § 17. 

In this case, two qualified psychiatrists examined Cristobal and

arrived at differing opinions. Both testified at trial. Dr. Artigues, for

the government, concluded that Cristobal was not suffering from any

severe mental disease or defect at the time of the alleged offense. On

the other hand, Dr. Giorgi-Guarnieri, for the defense, testified that

Cristobal was suffering from a major depressive episode with psy12 UNITED STATES v. CRISTOBAL
chotic features. However, Dr. Giorgi-Guarnieri conceded that individuals suffering from severe depressed episodes with psychotic features

are not always incapable of understanding the nature of their acts. The

district court made note of this concession when it rejected Cristobal’s

insanity defense at the close of the evidence. The court explained that

insufficient evidence existed to show that Cristobal "was unable to

understand what he was doing." In making this determination, the district judge credited Dr. Artigues’ opinion, noting that she had examined Cristobal for over twenty hours.11 Assessing and evaluating the

strength and weaknesses of two experts’ conflicting testimonies is a

task particularly within the fact finder’s province, and here the district

judge was not clearly erroneous in finding that Cristobal did not prove

insanity by clear and convincing evidence. See United States v. Freeman, 804 F.2d 1574, 1577 (11th Cir. 1986). 

IV.

Cristobal further asserts that we should reverse two of his convictions for violations of 18 U.S.C. § 844(i) because the government did

not prove that the two pickup trucks under which he placed explosive

devices had a legally sufficient nexus to interstate commerce.12 We

disagree. The evidence, in the light most favorable to the government,

demonstrates that both pickup trucks were used in activities affecting

interstate commerce. See United States v. Carr, 271 F.3d 172, 178

(4th Cir. 2001) (explaining that 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). Substantial evidence existed in the record to support

the district judge’s finding of the essential elements of § 844(i)

11Dr. Giorgi-Guarnieri saw Cristobal for a total of seven hours. 

12Section 844(i) provides, in pertinent part: 

Whoever 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 commerce shall be imprisoned for not less than 5 years and not more

than 20 years. 

18 U.S.C. § 844(i). 

UNITED STATES v. CRISTOBAL 13
beyond a reasonable doubt.13 See Glasser v. United States, 315 U.S.

60, 80 (1942). 

Victims David Haston and Joseph Michael did not own the pickup

trucks they were driving when the explosive devices set by Cristobal

detonated. Rather, both vehicles were owned by commercial businesses.14 Both businesses held title to the vehicles and were responsible

for insurance on the vehicles. Not only were the vehicles owned by

commercial businesses, the evidence established that those businesses

were clearly engaged in interstate commerce.15

13Cristobal further contests the finding that Joseph Michael received

"personal injury" as a result of the explosive device that detonated under

his truck, as charged in Count 9 of the indictment. While § 844(i) sets

the punishment for damaging or destroying property used in interstate

commerce at no less than 5 years and no more than 20 years, "if personal

injury results to any person . . . as a direct or proximate result of the conduct prohibited by this subsection," a person "shall be imprisoned for not

less than 7 and not more than 40 years." We reject Cristobal’s argument

here because the evidence clearly establishes that Michael was in fact

injured by the explosion. 

The fact that Michael did not visit a hospital immediately following

the incident does not preclude a finding that he sustained personal injury.

The record indicates that Michael’s legs were sore from the blast, he

experienced severe headaches, was diagnosed with a concussion, and

saw several other doctors about his headaches. 

14The 1988 Mazda truck driven by Haston was owned by his employer,

HyTech Parking Maintenance, Inc. (HyTech), which is primarily in the

business of sweeping, seal coating, and striping roadways in Virginia.

The evidence presented at trial established that while most of HyTech’s

services are performed on roadways in Virginia (including Interstate 95),

HyTech has at least one client with corporate offices out of the state. Furthermore, HyTech’s president testified that the company buys its equipment from all over the United States. 

The second pickup truck, driven by Joseph Michael, was owned by

Colonial Iron Works, Inc. Michael is, in fact, the president and owner of

Colonial Iron Works, a small company that assembles and sells iron railings. The railings are sold in Virginia, but, like HyTech, Colonial Ironworks purchases most of its component parts from out of state. 

15Indeed, Cristobal does not appeal his conviction under Count 19 for

damaging or destroying the building that contained Colonial Ironworks,

Inc., a business engaged in interstate commerce. 18 U.S.C.

§ 844(i)(emphasis added). 

14 UNITED STATES v. CRISTOBAL
Despite this apparent connection to interstate commerce, Cristobal

argues that the primary function of both vehicles was in fact for personal rather than business use. In support of this argument, Cristobal

notes that both Haston and Michael testified that they primarily used

the trucks to drive to and from work. Additionally, Cristobal points

us to Michael’s statements that he had on occasion used his pickup

truck to transport his children and for other recreational purposes. 

Cristobal attempts to rely on the Supreme Court’s recent decision

in Jones v. United States, 529 U.S. 848 (2000), where the Court held

that § 844(i) did not reach the arson of an owner-occupied private residence that was not used for any commercial purpose. 529 U.S. at

859. Because the evidence presented in this case presents a substantially different set of facts than those in Jones, Cristobal’s reliance on

Jones is indeed misplaced. 

In Jones, the Court found that a house, used solely as a private residence for "everyday family living," and not used for any commercial

purposes does not qualify as property "used in" commerce or "used

in" commerce affecting activity. Id. (emphasis added). Jones established a two-part inquiry to determine whether a building (or property) fits within the strictures of § 844(i). See also United States v.

Terry, 257 F.3d 366, 368-69 (4th Cir. 2001). Courts must first inquire

into the function of the property itself. Jones, 529 U.S. at 854. Second, courts must determine whether "that function affects interstate

commerce." Id. Because § 844(i) does not invoke Congress’ full

authority under the Commerce Clause, the Court explained that the

qualification "‘used’ in an activity affecting commerce" is "most sensibly read to mean active employment for commercial purposes, and

not merely passive, passing, or past connection to commerce." Terry,

257 F.3d at 369 (quoting Jones, 529 U.S. at 855); see also, United

Sates v. Carr, 271 F.3d 172, 177 (4th Cir. 2001). 

Here, the evidence shows that the primary function of both pickup

trucks was to transport Haston and Michael to and from their work.16

As such, both pickup trucks were clearly used for the purpose of

16Haston also traveled to and from specific paving and sealing jobs in

the pickup truck. He traveled out of the state in the truck on at least one

occasion to quote a job to a corporate customer. 

UNITED STATES v. CRISTOBAL 15
advancing and promoting the business of HyTech and Colonial Iron

Works, commercial entities that dealt in interstate commerce.17

Hence, the evidence sufficiently established that the vehicles specified in counts 9 and 14 were used in activities affecting interstate

commerce, and not used merely for private purposes. The company

trucks were actively employed for commercial purposes, with more

than a passive, passing or past connection to commerce. See Jones,

529 U.S. at 855. 

V.

Lastly, Cristobal contends that his enhanced sentences for counts

5, 10 and 15 under 18 U.S.C. § 924(c)(1)(C) violate Apprendi v. New

Jersey, 530 U.S. 466 (2000), because the phrase "second or subsequent conviction" states an element of the offense that must be

charged in the indictment and found beyond a reasonable doubt.18 We

find no merit to this argument for two reasons.19

17Before the bombing, the pickup truck driven by Michael even featured magnetic signs advertising Colonial Iron Works on its doors. 

1818 U.S.C. § 924(c)(1)(C) states: 

In the case of a second or subsequent conviction under this subsection, the person shall — 

(i) be sentenced to a term of imprisonment of not less than

25 years; and 

(ii) if the firearm involved is a machine gun or a destructive device, or is equipped with a firearm silencer or

firearm muffler, be sentenced to imprisonment for life.

The district judge (as fact finder) found Cristobal guilty of possessing an

SKS assault rifle on February 24, 2000, during and in relation to a crime

of violence (Count 5), and guilty of possessing two improvised explosive

devices (placed under the vehicles driven by Michael and Haston) on

February 7, 2000, during and in relation to a crime of violence (Counts

10 and 15). Counts 5, 10, and 15 were correctly recognized as second or

subsequent § 924(c) convictions because Cristobal was convicted on

Count 4 under § 924(c)(1)(A)(iii). Cristobal was sentenced to twenty-five

years on Count 5 under § 924(c)(1)(C)(i) and he received life in prison

on Counts 10 and 15 under § 924(c)(1)(C)(ii). 

19Cristobal also argues that the court should have allowed his enhanced

sentences under § 924(c)(1)(C) to run concurrently. This assertion stands

16 UNITED STATES v. CRISTOBAL
A.

Apprendi held that "[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490 (emphasis added). Because

§ 924(c)(1) contains no maximum penalty, the application of

§ 924(c)(1)(C)(i) and § 924(c)(1)(C)(ii) did not expose Cristobal to a

penalty greater than that already allowed under the statute. See United

States v. Harris, 243 F.3d 806, 808-10 (4th Cir. 2001), cert. granted,

122 S.Ct. 663 (2001); United States v. Harrison, 272 F.3d 220, 225-

26 (4th Cir. 2001). Finding that Cristobal’s § 924(c) offenses were

"second or subsequent" offenses under § 924(c)(1)(C)(i) and

§ 924(c)(1)(C)(ii) merely triggered certain mandatory minimum sentences, thus cabining the district court’s discretion when imposing a

sentence for the base offenses in § 924(c)(1), for which the maximum

penalty is life. Harris, 243 F.3d at 226. 

B.

Furthermore, notwithstanding the fact that the enhancements under

§ 924(c)(1)(C)(i) and § 924(c)(1)(C)(ii) did not increase the penalties

beyond § 924(c)(1)’s statutory maximum, we find that the enhancements fall squarely within Apprendi’s prior conviction exception.

Apprendi, 530 U.S. at 490 ("Other than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt."). Cristobal urges us to find that Apprendi overruled the prior conviction exception in Almendarez-Torres v. United

States, 523 U.S. 224 (1998). Unfortunately for Cristobal, this Circuit

has expressly held that Amendarez-Torres survives Apprendi. United

in direct contradiction to § 924(c)(1)(D)(ii), which unambiguously states

that "no term of imprisonment imposed on a person under this subsection

shall run concurrently with any other term of imprisonment imposed on

the person, including any terms of imprisonment imposed for the crime

of violence or drug trafficking crime during which the firearm was used,

carried, or possessed." 18 U.S.C. § 924(c)(1)(D)(ii) (emphasis added).

Hence, the court correctly sentenced Cristobal to consecutive sentences

for his § 924(c)(1) violations. 

UNITED STATES v. CRISTOBAL 17
States v. Sterling, 283 F.3d 216, 220 (4th Cir. 2002) (finding that

prior convictions were properly used to enhance a defendant’s sentence under the Armed Career Criminal Statute, 18 U.S.C. § 924(e)).20

In the alternative, Cristobal argues that § 924(c)(1)(C) enhancements should fall outside of the prior conviction exception to

Apprendi because Apprendi "does not specifically address ‘second or

subsequent convictions.’" Appellant’s Opening Brief at 55. This argument is patently meritless. In order for a § 924(c) conviction to be a

second or subsequent conviction, a defendant obviously must have

been convicted of a first or "prior" § 924(c) offense. We will not

invent a distinction where clearly none exists. We find that the fact

that a § 924(c) conviction may be a "second or subsequent" conviction under that subsection need not be charged in the indictment or

proved beyond a reasonable doubt.

VI.

Accordingly, we affirm all aspects of Cristobal’s conviction and

sentence. 

AFFIRMED

20Cristobal’s argument that the enhanced penalty provision of

§ 924(c)(1)(C) creates a separate offense is also foreclosed by Deal v.

United States, 508 U.S. 129 (1993); see also United States v. Anglin, 284

F.3d 407, 411 (2d Cir. 2002). In Deal, the Court found that the enhanced

penalty provision for a "second or subsequent" § 924(c)(1) conviction

applies where, as in Cristobal’s case, the "second" conviction is obtained

in the same prosecution (and the same judgment) as the "first" conviction. 508 U.S. at 131-35. The Court’s decision in Deal makes sense only

if the fact of a previous "conviction" is a sentencing factor, and not an

element of an additional offense that Congress intended to create. Anglin,

284 F.3d at 411 (emphasis added). If we considered the fact of a "first"

conviction to be an element, then a prosecutor seeking to prove multiple

§ 924(c)(1) offenses against a defendant who had not previously been

convicted of such an offense would have the "impossible task of presenting evidence of ‘the finding of guilt by a judge or jury’ which had not

yet occurred." Id. However, if the "first" conviction is a sentencing factor, then the judge is obviously aware of whether "the finding of guilt"

with respect to more than one § 924(c)(1) violation had occurred. Id.

18 UNITED STATES v. CRISTOBAL