UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4231

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DARIUS ERIC WILDER,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. George Jarrod Hazel, District Judge. (8:17-cr-00528-GJH-1)

Submitted: October 30, 2020 Decided: November 13, 2020

Before GREGORY, Chief Judge, and NIEMEYER and KEENAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Paresh S. Patel, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland; Nicholas A. Handler, New York, New York, Masha G. Hansford, Alessandra N. Baniel-Stark, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, Washington, D.C., for Appellant. Robert K. Hur, United States Attorney, Baltimore, Maryland, Jennifer R. Sykes, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Darius Eric Wilder was convicted of arson affecting interstate commerce, in

violation of

(i) (“federal arson”), and possession of a firearm in furtherance

of a crime of violence, in violation of

(c)(1)(A), (B)(ii). The district court

sentenced him to 420 months’ imprisonment. On appeal, Wilder argues that (1) his

§ 924(c) conviction must be vacated because it is not supported by a valid predicate crime

of violence; (2) the district court abused its discretion by admitting evidence of his prior

conduct; (3) the district court abused its discretion by instructing the jury that it could infer

guilt from flight; and (4) even if the court’s errors were harmless, his § 844(i) conviction

should nevertheless be vacated due to cumulative error. We vacate Wilder’s conviction

and sentence under § 924(c), affirm his conviction under § 844(i), and remand for

resentencing.

We review de novo the legal question of whether an offense qualifies as a crime of

violence. United States v. Mathis,

(4th Cir. 2019). However, because

Wilder never argued in the district court that federal arson did not qualify as a crime of

violence and therefore did not preserve that argument for appeal, our review is for plain

error only. United States v. Westbrooks,

(4th Cir. 2015) (“To preserve

an argument on appeal, the defendant must object on the same basis below as he contends

is error on appeal.” (internal quotation marks omitted)). To be entitled to relief, Wilder

therefore must establish (1) an error, (2) that was plain, and (3) that affected his substantial

rights. United States v. Coston,

(4th Cir. 2020).

A crime of violence for § 924(c) purposes is defined as:

2 an offense that is a felony and . . . (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another [(the “force clause”)], or (B) that[,] by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense [(the “residual clause”)].

(c)(3). We have held that the residual clause is unconstitutionally vague.

United States v. Simms,

(4th Cir.) (en banc), cert. denied,

(2019); accord United States v. Davis,

(2019). Thus, an offense

must satisfy the force clause to be considered a crime of violence under this statute. Here,

Wilder and the Government agree that federal arson does not do so. However, “we are not

bound by the government’s concession of error,” United States v. Pena,

(4th Cir. 2020), and even when the Government “concedes the correctness of [the]

defendant’s view of the law” on appeal, we must still carry out our duty “to examine

independently the errors confessed,” United States v. Brainer,

(4th Cir.

1982) (internal quotation marks omitted).

We nevertheless agree that federal arson is not a crime of violence under the force

clause. Under that clause, a felony offense is considered a crime of violence if it “has as

an element the use, attempted use, or threatened use of physical force against the person or

property of another.”

(c)(3)(A) (emphasis added). As the Supreme Court

has noted, similar statutes defining “crime of violence” do not apply to arson statutes that

“defin[e] that crime to include the destruction of one’s own property.” Torres v. Lynch,

(2016) (discussing

(a)). However, the federal arson

statute plainly applies to certain attempts to damage or destroy “any building, vehicle, or

other real or personal property used in interstate . . . commerce,”

(i)

3 (emphasis added), and we have upheld convictions under that statute for the destruction of

a defendant’s own property, see, e.g., United States v. Parsons,

(4th Cir.

1993). Accordingly, as our sister courts have acknowledged, federal arson is not a crime

of violence under the force clause of § 924(c). See, e.g., United States v. Salas,

(10th Cir. 2018). We therefore conclude that Wilder’s § 924(c) conviction

was plainly erroneous and affected his substantial rights. Furthermore, because the

improper conviction “seriously affect[s] the fairness, integrity[,] or public reputation of

judicial proceedings,” United States v. McCain,

(4th Cir. 2020) (internal

quotation marks omitted)—and both parties agree that Wilder’s § 924(c) conviction is

invalid—we exercise our discretion to correct the error and therefore vacate the conviction

and attendant sentence.

With respect to Wilder’s § 844(i) conviction, Wilder first argues that his conviction

must be vacated because the district court abused its discretion by admitting evidence of

his prior bad acts as intrinsic to the arson. We review a district court’s evidentiary rulings

for abuse of discretion. United States v. Burfoot,

(4th Cir. 2018).

Federal Rule of Evidence 404(b) “allows admission of evidence of the defendant’s past

wrongs or acts, as long as the evidence is not offered to prove the defendant’s

predisposition toward criminal behavior.” United States v. Sterling,

(4th

Cir. 2017). However, “Rule 404(b) does not affect the admission of evidence that is

intrinsic to the alleged crime.” United States v. Webb,

(4th Cir. 2020)

(internal quotation marks omitted). Accordingly, “[w]here testimony is admitted as to acts

4 intrinsic to the crime charged, and is not admitted solely to demonstrate bad character, it is

admissible.”

(internal quotation marks omitted).

Prior bad acts are “intrinsic to the charged offense when they are inextricably

intertwined” with that offense, meaning the prior bad acts “form an integral and natural

part of the witness’s accounts of the circumstances surrounding the charged offense.”

United States v. Denton,

(4th Cir. 2019) (brackets and internal quotation

marks omitted), cert. denied,

(2020). Additionally, “[e]vidence of other

bad acts is intrinsic if, among other things, it involves the same series of transactions as the

charged offense, or if it is necessary to complete the story of the crime on trial.” Webb,

(internal quotation marks omitted). Our review of the record and the

relevant authorities leads us to conclude that the district court did not abuse its discretion

by determining the evidence of Wilder’s prior conduct was intrinsic to the crime charged.

Additionally, to be admissible under Fed. R. Evid. 403, such “evidence’s probative

value [must] not be substantially outweighed by its unfair prejudice to the defendant.”

Sterling,

; see also United States v. Bajoghli,

(4th Cir.

2015) (noting that intrinsic evidence “should be excluded only sparingly” under Rule 403).

“Unfair prejudice speaks to the capacity of some concededly relevant evidence to lure the

factfinder into declaring guilt on a ground different from proof specific to the offense

charged.” United States v. Basham,

(4th Cir. 2009) (internal quotation

marks omitted). Conduct evidence is unfairly prejudicial when, for example, “it inflames

the jury or encourages them to draw an inference against the defendant, based solely on a

judgment about the defendant’s criminal character or wicked disposition.” Sterling, 860

5 F.3d at 248. After reviewing the record and relevant authorities, we also conclude that the

evidence of Wilder’s prior conduct was admissible under Rule 403. Accordingly, we

conclude that the district court did not abuse its discretion by admitting that evidence.

Next, Wilder argues that his federal arson conviction must be vacated because the

district court abused its discretion by instructing the jury that it could infer consciousness

of guilt from his flight from officers attempting to arrest him. “We review both the decision

to give . . . a jury instruction and the content of an instruction for abuse of discretion.”

United States v. Savage,

(4th Cir. 2018) (internal quotation marks

omitted). “[I]n appropriate circumstances, a consciousness of guilt may be deduced from

evidence of flight.” United States v. Obi,

(4th Cir. 2001). However,

“the jury’s consideration of evidence of flight requires that it be able, from the evidence,

to link such flight to consciousness of guilt of the crime for which the defendant is

charged.”

“This requires evidence supporting all the inferences in the causative chain

between flight and guilt.”

[T]here must be evidence that the defendant fled or attempted to flee and that supports inferences that (1) the defendant’s flight was the product of consciousness of guilt, and (2) his consciousness of guilt was in relation to the crime with which he was ultimately charged and on which the evidence is offered.

United States v. Jeffers,

(4th Cir. 2009) (internal quotation marks

omitted). The Government bears the burden of “adequately [substantiating] the inference

that [the] defendant was aware he was wanted for the [charged] crime.” United States v.

Beahm,

(4th Cir. 1981). After reviewing the record and relevant

6 authorities, we conclude that the district court did not abuse its discretion by giving the

flight instruction to the jury.

Finally, Wilder asserts that the cumulative effect of the alleged errors rendered his

trial fundamentally unfair. “Pursuant to the cumulative error doctrine, the cumulative

effect of two or more individually harmless errors has the potential to prejudice a defendant

to the same extent as a single reversible error.” United States v. Runyon,

(4th Cir. 2013) (internal quotation marks omitted). Because we conclude that the

district court did not commit any error in admitting the evidence of Wilder’s conduct or

when instructing the jury, Wilder’s cumulative error argument must fail.

Accordingly, we vacate Wilder’s conviction and sentence under § 924(c), affirm

Wilder’s conviction under § 844(i), and remand for resentencing. * We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

* See, e.g., United States v. Taylor, __ F.3d __ , __ ,

, at *5 (4th Cir. Oct. 14, 2020) (remanding for resentencing on predicate offense after vacating § 924(c) conviction).

7