The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2025 Decided September 1, 2026
No. 24-3023
UNITED STATES OF AMERICA,
APPELLEE
v.
OSCAR RAMIRO ORTEGA-HERNANDEZ, ALSO KNOWN AS
OSCAR RAMIRO ORTEGA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cr-00014-1)
Courtney Millian, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender. Tony Axam Jr., Assistant
Federal Public Defender, entered an appearance.
Timothy R. Cahill, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Chrisellen R.
Kolb and Eric Hansford, Assistant U.S. Attorneys.
Before: SRINIVASAN, Chief Judge, MILLETT and RAO,
Circuit Judges.
2
Opinion for the Court filed by Chief Judge SRINIVASAN.
SRINIVASAN, Chief Judge: In 2011, Oscar Ortega-
Hernandez fired multiple rounds at the White House with his
assault rifle, damaging the building. He pled guilty to two
offenses: injuring a dwelling or placing lives in jeopardy
within the special maritime and territorial jurisdiction of the
United States, in violation of 18 U.S.C. § 1363, and using a
firearm during and in relation to a “crime of violence,” in
violation of 18 U.S.C. § 924(c). The predicate crime of
violence for Ortega-Hernandez’s § 924(c) conviction was his
§ 1363 conviction.
Ortega-Hernandez argues that his § 1363 offense does not
amount to a crime of violence within the meaning of § 924(c).
We disagree. He pled guilty to § 1363’s enhanced offense.
To determine whether that offense was a crime of violence
under § 924(c), we ask whether the least culpable conduct
punished by the offense necessarily meets § 924(c)’s definition
of a crime of violence. That least culpable conduct is willfully
and maliciously injuring a dwelling. The question, then, is
whether that conduct categorically involves “use of physical
force against” the “property of another” under § 924(c).
We conclude it does. One cannot willfully and
maliciously injure another person’s dwelling without using
physical force against that property. We therefore affirm the
district court’s denial of Ortega-Hernandez’s motion to vacate
his § 924(c) conviction.
I.
A.
In 2011, Oscar Ortega-Hernandez became convinced that
then-President Obama “was a devil and the anti-Christ.” J.A.
3
231. Ortega-Hernandez began developing plans to “take
[him] out.” Id. To that end, Ortega-Hernandez purchased an
AK-47-style assault rifle and more than 1,200 rounds of
ammunition and spent the next six months engaged in
“shooting practice.” Id.
In late October 2011, Ortega-Hernandez left his home in
Great Falls, Idaho, and drove more than 2,000 miles to
Washington, D.C. On the evening of November 11, he
stopped his car near the entrance of the Ellipse and fired at least
eight shots at the White House from his car window.
President Obama and the First Lady were not inside at the time,
but two other members of the First Family were present.
Although no one was injured, one bullet struck near two Secret
Service officers, and several others hit the Truman Balcony,
causing significant damage. Ortega-Hernandez fled, only to
be arrested in Pennsylvania following a dayslong, multi-state
search.
B.
A federal grand jury returned a 19-count indictment
against Ortega-Hernandez, including one count of attempting
to assassinate the President. In September 2013, Ortega-
Hernandez pled guilty to two of the counts: injuring a
dwelling or placing lives in jeopardy within the special
maritime and territorial jurisdiction of the United States, in
violation of 18 U.S.C. § 1363, and using a firearm during a
“crime of violence,” in violation of 18 U.S.C. § 924(c)(1)(A).
The “special maritime and territorial jurisdiction of the United
States” referenced in § 1363 is defined in 18 U.S.C. § 7, and
comprises distinct areas outside of state jurisdiction including
4
the high seas, certain federal lands and installations, the Guano
islands, and U.S.-registered ships, aircraft, and spacecraft.
The indictment identified the § 1363 offense as the
predicate “crime of violence” for the § 924(c) count. Section
1363 contains a baseline offense and an enhanced offense.
Ortega-Hernandez pled guilty to the latter, which applies to
someone who, “within the special maritime and territorial
jurisdiction of the United States, willfully and maliciously
destroys or injures” property, if the property is “a dwelling, or
the life of any person [is] placed in jeopardy.” 18 U.S.C.
§ 1363. In connection with Ortega-Hernandez’s guilty plea,
the government dismissed the remaining counts. The district
court sentenced Ortega-Hernandez to 25 years of
imprisonment.
Ortega-Hernandez appealed his sentence. While his
appeal was pending, the Supreme Court decided Johnson v.
United States, 576 U.S. 591 (2015), which held that the residual
clause of the Armed Career Criminal Act (ACCA) is
unconstitutionally vague. Id. at 596–97. At the time,
§ 924(c) contained a materially similar residual clause.
Section 924(c) defined a “crime of violence” as a felony that
either 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 “by its nature, involve[d] 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”). 18 U.S.C. § 924(c)(3)(A), (B).
Ortega-Hernandez did not raise any challenge based on
§ 924(c)’s residual clause in his direct appeal.
The district court in Ortega-Hernandez’s case had not
specified whether his § 1363 conviction qualified as a crime of
violence under § 924(c)’s force clause or instead under its
5
residual clause. After Ortega-Hernandez’s direct appeal was
decided, the Supreme Court held that Johnson’s invalidation of
ACCA’s parallel residual clause applied retroactively on
collateral review. See Welch v. United States, 578 U.S. 120,
135 (2016). Ortega-Hernandez then moved to vacate his
§ 924(c) conviction on collateral review based on Johnson’s
invalidation of ACCA’s parallel residual clause. While his
motion was pending, the Supreme Court decided United States
v. Davis, 588 U.S. 445 (2019), which held based on Johnson
that § 924(c)’s residual clause was likewise unconstitutionally
vague. Id. at 448, 451–52, 467. Davis meant that Ortega-
Hernandez’s § 924(c) conviction could not be sustained based
on that provision’s now-invalidated residual clause, leaving the
conviction potentially viable only under the provision’s force
clause. The question, then, was whether the predicate crime
for Ortega-Hernandez’s § 924(c) conviction—i.e., his § 1363
conviction—is a crime of violence under § 924(c)’s force
clause.
The district court denied Ortega-Hernandez’s motion,
holding that Ortega-Hernandez’s § 1363 conviction is a crime
of violence for purposes of § 924(c)’s force clause. The court
believed it could reach that conclusion so long as either of the
two alternative ways to commit the enhanced offense under
§ 1363—i.e., the property at issue “be a dwelling” or “the life
of any person be placed in jeopardy”—satisfies § 924(c)’s
force clause. The court concluded that the latter of those
alternatives necessarily involves the “use of physical force
against the person or property of another” under § 924(c)’s
force clause.
The district court denied Ortega-Hernandez’s motion for
reconsideration, but the court granted him a certificate of
appealability on whether his § 1363 offense qualifies as a
6
predicate crime of violence for purposes of his § 924(c)
conviction. We take up that question here.
II.
Before turning to that question, we first consider the
government’s argument that Ortega-Hernandez is procedurally
barred from challenging his § 924(c) conviction. In Ortega-
Hernandez’s direct appeal, he did not raise any challenge to
§ 924(c)’s residual clause. Absent an excuse for that failure,
the procedural-default doctrine bars him from relying on the
claim on collateral review. See United States v. Frady, 456
U.S. 152, 167–68 (1982). Ortega-Hernandez can overcome
procedural default by demonstrating “cause and actual
prejudice.” Bousley v. United States, 523 U.S. 614, 622
(1998) (cleaned up). (He does not claim he can show actual
innocence, the other potential route for overcoming procedural
default. See id.)
Cause for procedural default can exist if “some objective
factor external to the defense” prevented counsel from raising
the claim on direct appeal. Murray v. Carrier, 477 U.S. 478,
488 (1986). Novelty is one such objective factor. A claim
may be sufficiently novel if “its legal basis is not reasonably
available to counsel” at the time of direct appeal. Reed v.
Ross, 468 U.S. 1, 16 (1984). The Supreme Court has
identified certain circumstances relevant to whether that
standard may be satisfied: when the Court “explicitly
overrule[s] one of [its] precedents”; when it overturns a
“longstanding and widespread practice” uniformly approved
by lower courts; or when it “disapprov[es] a practice [the]
Court arguably has sanctioned in prior cases.” Id. at 17
(citation omitted).
Ortega-Hernandez’s claim fits within that framework.
When Johnson held that the residual clause of ACCA was
7
unconstitutionally vague, the Court itself acknowledged that it
was “departing from [its] decisions” in James v. United States,
550 U.S. 192 (2007), and Sykes v. United States, 564 U.S. 1
(2011). Johnson, 576 U.S. at 606. That is precisely the kind
of circumstance Reed contemplated. As an illustration, the
Court explained that counsel could not reasonably be expected
to argue that the Fourteenth Amendment incorporates the Fifth
Amendment’s Grand Jury Clause while Hurtado v. California,
110 U.S. 516 (1884), remained controlling, “even if there were
a possibility that some day Hurtado may be overruled.” Reed,
468 U.S. at 15–16 & n.11.
Before Johnson, similarly, James and Sykes foreclosed the
vagueness challenge to § 924(c)’s residual clause on which
Ortega-Hernandez now relies. The government makes no
argument that Ortega-Hernandez was situated differently from
any other defendant who in theory could have argued on direct
appeal that § 924(c)’s residual clause is unconstitutionally
vague even though James and Sykes dictated otherwise. The
government suggests that such a challenge does not qualify as
sufficiently novel because a dissenting opinion in James and
Sykes expressed disagreement with those decisions. Govt. Br.
17. But dissenting opinions always disagree with the
majority, and binding Supreme Court precedent foreclosing a
challenge can render it sufficiently novel for “cause” purposes
regardless of whether the precedent was unanimous.
That is why, in a case involving a defendant who appealed
from a pre-Johnson guilty plea involving ACCA’s residual
clause, we opined that “it is fair to say that no one—the
government, the [trial] judge, or the appellant—could
reasonably have anticipated Johnson.” United States v.
Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016) (emphasis added).
And we said that about parties (and a judge) involved in the
entry of a guilty plea close to the time of Johnson. See id. If
8
no one could reasonably have anticipated Johnson at that time,
there is cause for not having anticipated Johnson in pre-
Johnson direct appeals. (Here, while the briefing in Ortega-
Hernandez’s direct appeal predated Johnson, the oral argument
came after; but the government makes no note of that timing or
any argument based on it, so we do not consider whether it
could matter.)
As for the prejudice part of the cause-and-prejudice
inquiry, it requires a showing that the asserted error “worked to
[the defendant’s] actual and substantial disadvantage,” Frady,
456 U.S. at 170 (emphasis omitted), or, stated another way, that
there is at least “a reasonable probability that, but for [the
error], the result of the proceeding would have been different,”
United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir.
2003) (quoting United States v. Dale, 140 F.3d 1054, 1056 n.3
(D.C. Cir. 1998)). A conviction no longer “authorized by
law” necessarily satisfies that standard. United States v.
McKinney, 60 F.4th 188, 195–97 (4th Cir. 2023) (collecting
cases).
In this case, accordingly, prejudice exists. If Ortega-
Hernandez is correct that his § 924(c) conviction cannot
stand—which we assume for purposes of the prejudice
inquiry—he necessarily establishes prejudice because his
sentence would then need to be vacated. We therefore turn to
the merits.
III.
The sole question in this appeal is whether Ortega-
Hernandez’s § 1363 conviction qualifies as a crime of violence
under § 924(c). After Davis invalidated § 924(c)’s residual
clause, Ortega-Hernandez’s § 924(c) conviction can be valid
only if his § 1363 offense is a crime of violence under
§ 924(c)’s force clause—i.e., if his § 1363 offense “has as an
9
element” the “use of physical force against the person or
property of another.” 18 U.S.C. § 924(c)(3)(A).
A.
Section 1363 sets out a baseline offense that can be
elevated to an enhanced offense if one of two alternative
conditions is additionally established. The baseline offense
occurs if someone, “within the special maritime and territorial
jurisdiction of the United States, willfully and maliciously
destroys or injures any structure, conveyance, or other real or
personal property.” 18 U.S.C. § 1363. The enhanced offense
then applies if either “the building be a dwelling, or the life of
any person be placed in jeopardy.” Id.
Because Ortega-Hernandez pled guilty to the enhanced
offense, we have no need to consider whether the baseline
offense qualifies as a crime of violence under § 924(c)’s force
clause. We instead focus solely on the enhanced offense.
Ortega-Hernandez pled guilty to a count that referenced both
alternatives for the enhanced offense—that the property
involved was a dwelling, and that a person’s life was placed in
jeopardy—so the plea does not on its face identify one rather
than the other. In that situation, how do we decide which
alternative is relevant when assessing whether the offense
involved the “use of physical force against the person or
property of another” for purposes of § 924(c)’s force clause?
The parties present an array of competing arguments on that
question, with Ortega-Hernandez wanting us to treat his
offense as involving injury to a dwelling and the government
wanting us to treat it as involving jeopardizing life. We need
not resolve that debate.
Both sides agree that injury to a dwelling is the less
culpable of the alternatives—that is, it less clearly involves the
requisite use of force under § 924(c), and jeopardizing life
10
more clearly does. See Borden v. United States, 593 U.S. 420,
424 (2021) (plurality opinion) (“If any—even the least
culpable—of the acts criminalized do not entail [the requisite]
kind of force, the statute of conviction . . . cannot serve as an
ACCA predicate.”). Because we conclude that what the
parties agree is the less-culpable alternative—injury to a
dwelling—satisfies § 924(c)’s force clause, we can assume
without deciding that Ortega-Hernandez’s offense should be
treated as involving that alternative. See Daye v. U.S.
Attorney General, 38 F.4th 1355, 1361 & n.4 (11th Cir. 2022);
United States v. Burris, 920 F.3d 942, 948 (5th Cir. 2019).
On that assumption, the question is whether the variant of
§ 1363’s enhanced offense involving injury to a dwelling is a
crime of violence within the meaning of § 924(c)’s force
clause. We conclude it is.
B.
Congress considered § 1363’s enhanced offense a serious
crime, authorizing a sentence of up to 20 years of imprisonment
(as opposed to the five-year maximum sentence available under
§ 1363’s baseline offense). See 18 U.S.C. § 1363. To
determine whether the variant of the enhanced offense at issue
here is a crime of violence under § 924(c)’s force clause, we
ask whether, as a categorical matter, every violation of that
variant necessarily involves the requisite use of force. See
Mathis v. United States, 579 U.S. 500, 505–06, 509–10 (2016).
We do not look to the facts of a specific case or ask whether
the particular conduct underlying the conviction involved the
requisite force. The inquiry, rather, is an across-the-board
one. See id.
The question we consider, then, is whether “willfully and
maliciously destroy[ing] or injur[ing] . . . a dwelling,” 18
U.S.C. § 1363, as a categorical matter, involves the “use of
11
physical force against the person or property of another” under
§ 924(c). And we can refine that question a bit more in two
ways. First, because we are concerned with the variant of
§ 1363’s enhanced offense involving injury to a dwelling,
rather than jeopardizing life, the relevant violations implicate
the use of force against the “property of another” as opposed to
“the person of another.” And second, “injuring” a dwelling is
less culpable than “destroying” it, so we can focus on injury to
a dwelling rather than destruction of it.
The issue then boils down to the following (and for ease of
presentation, we will avoid the use of ellipses or brackets
denoting negligible alterations): does “willfully and
maliciously injuring a dwelling” under § 1363 categorically
involve “use of physical force against the property of another”
under § 924(c)? We conclude the answer is yes. And we
examine the issue in two steps: first, does the relevant conduct
under § 1363 necessarily involve “use of physical force against
property”?; and second, is the relevant property under
§ 1363—i.e., the dwelling—necessarily the property “of
another” as opposed to one’s own?
1.
We first consider whether “willfully and maliciously
injuring a dwelling” under § 1363 categorically involves the
“use of physical force against property” under § 924(c). To
address that question, we initially examine what § 1363 covers
in relevant part and then ask whether that coverage necessarily
fits within § 924(c)’s force clause.
a.
As the availability of a 20-year sentence of imprisonment
indicates, willfully and maliciously injuring someone’s
dwelling is not a mere glancing brush against their residence.
12
It was established at the time of § 1363’s initial codification in
1948 that injury to a dwelling required material impairment:
specifically, “injure,” “[a]s applied to a building,” meant “to
materially impair or destroy any part of the existing structure.”
Injure, Black’s Law Dictionary (3d ed. 1933); see also Injure,
Black’s Law Dictionary (4th ed. 1951) (same). The modern
understanding is to the same effect. Criminal Damage to
Property, Black’s Law Dictionary (12th ed. 2024) (“Injury,
destruction, or substantial impairment to the use of property.”).
The structure of § 1363 fortifies that reading. The
provision criminalizes not just injuring property, but
“destroy[ing] or injur[ing]” it. 18 U.S.C. § 1363 (emphasis
added). By treating “destroying” property as the anchoring
term and “injuring” property as a species of destruction, § 1363
reinforces the idea that the kinds of injury to a dwelling
encompassed by the enhanced offense involve material
impairments closer to the destruction end of the spectrum, not
grazing nudges at the other end.
That understanding draws additional support from the
close association between § 1363 and the crime of malicious
mischief. Congress made that connection explicit when it
enacted § 1363 in 1948 as part of a chapter entitled “Malicious
Mischief,” alongside three related provisions. See Act of June
25, 1948, ch. 645, § 1, 62 Stat. 683, 764. That placement
makes sense. The crime of malicious mischief was a well-
established offense against property, and it was generally
defined in terms closely mirroring § 1363: “the wilful and
unlawful injury to or destruction of the property of another.”
34 Am. Jur. Malicious Mischief § 2 (1941); compare 18 U.S.C.
§ 1363 (“willfully and maliciously destroys or injures any . . .
property”); see also 19 Am. & Eng. Encyc. L. Malicious
Mischief 633 (2d ed. 1896) (“general definition of the
13
common-law offense” is “wilful and malicious injury to or
destruction of property”).
The degree of injury to property required to make out the
offense of malicious mischief was described as “impairing or
materially diminishing the value of [the] property.” Am. Jur.,
supra, § 10. Or, as one authority put it: “To sustain a
conviction” for malicious mischief, “there must be proof of
injury done to such an extent as to impair utility[] or materially
diminish value.” 2 Wharton’s Criminal Law, § 1327 (12th ed.
1932). The same material-impairment understanding of
injury carries over to § 1363.
Not only must the injury to the dwelling under § 1363’s
enhanced offense amount to material impairment of its use or
value, but the injury must also be inflicted “willfully and
maliciously.” 18 U.S.C. § 1363. That means the injury must
be intended, not inadvertent, and inflicted for wrongful,
wicked, or mischievous reasons. See Malicious, Black’s Law
Dictionary (4th ed. 1951); Willful, Black’s Law Dictionary (4th
ed. 1951). To bring all of this together: to “willfully and
maliciously injure” a dwelling under § 1363’s enhanced
offense, a perpetrator must intentionally inflict the injury for a
wrongful, wicked, or mischievous reason, and the injury must
amount to a material impairment of the dwelling.
With that understanding of § 1363’s enhanced offense in
mind, the question under § 924(c)’s force clause becomes
whether someone who “willfully and materially injures” a
dwelling—i.e., materially impairs it, intentionally and for
wrongful, wicked, or mischievous reasons—necessarily has
“used physical force against the property.” The Supreme
14
Court’s decisions construing § 924(c)’s force clause tell us the
answer is yes.
b.
In a series of decisions, the Supreme Court has interpreted
§ 924(c)’s force clause and the nearly identical language of
ACCA’s parallel force provision, 18 U.S.C. § 924(e)(2)(B)(i).
The latter covers an offense that “has as an element the use,
attempted use, or threatened use of physical force against the
person of another,” and the former covers an offense that “has
as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” The
sole difference is that § 924(c) encompasses force against
“person or property” whereas ACCA’s provision reaches only
force against “person.”
The Supreme Court on several occasions has examined
whether conduct amounts to the “use of physical force against
a person” within the meaning of those clauses. See Delligatti
v. United States, 604 U.S. 423 (2025) (§ 924(c)); Stokeling v.
United States, 586 U.S. 73 (2019) (ACCA); Johnson v. United
States, 559 U.S. 133 (2010) (ACCA). Two points are of
particular relevance. First, in Johnson, the Court established
that “physical force” means “force capable of causing physical
pain or injury to another person”—so something more than the
“slightest offensive touching.” 559 U.S. at 139–40. Second,
in Delligatti, the Court explained that “it is impossible to
deliberately cause physical harm without the use of physical
force.” 604 U.S. at 429. “Thus, whenever someone
knowingly causes physical harm, he uses force.” Id. at 430.
Whereas those decisions involved force against a person,
this case involves force against property. But there is no
doubting those decisions’ general relevance: § 924(c)
identifies both a “person” and the “property” as possible
15
objects of the requisite “physical force,” suggesting that a
common understanding of “physical force” should generally
apply to each. Cf. Clark v. Martinez, 543 U.S. 371, 378
(2005) (“The operative language of [the statute] applies
without differentiation to all [the] categories,” and “[t]o give
these same words a different meaning for each category would
be to invent a statute rather than interpret one.”).
At any rate, we need do no more than apply Johnson’s and
Delligatti’s interpretation of § 924(c)’s force clause at a high
level. Johnson, for its part, establishes that “physical force”
under § 924(c) means force capable of causing injury (or pain).
Delligatti then instructs that intentionally causing physical
injury always involves “use of physical force” within the
meaning of § 924(c). Read together, the two decisions yield a
straightforward understanding: a crime that requires
intentionally causing an injury necessarily requires the use of
physical force capable of causing the injury. Section 1363’s
enhanced offense fits the bill. It requires intentionally injuring
a dwelling to the point of materially impairing it, and material
impairment cannot occur without physical force capable of
causing it.
A dwelling, moreover, is a paradigmatic instance of
“property” for purposes of § 924(c). The common law
famously regarded a person’s home as “his castle of defence
and asylum.” Wilson v. Arkansas, 514 U.S. 927, 931 (1995)
(citation omitted). And the Supreme Court has repeatedly
invoked the home as the benchmark when defining both the
scope and contents of property protection. See Horne v.
Department of Agriculture, 576 U.S. 351, 358 (2015); United
States v. James Daniel Good Real Property, 510 U.S. 43, 53–
54 (1993). Whatever questions could conceivably arise
16
concerning the scope of § 924(c)’s reference to “property,”
then, a dwelling plainly lies in the force clause’s heartland.
2.
Section 924(c)’s force clause speaks in terms of a predicate
offense involving the “use of physical force against the person
or property of another.” 18 U.S.C. § 924(c)(3)(A) (emphasis
added). So, to qualify as a predicate crime of violence under
the force clause, § 1363 must be categorically limited to the use
of force against someone else’s property, rather than one’s
own. The government submits that § 1363 is confined in that
manner, even though that understanding would, on balance,
narrow the range of prosecutions available under the provision.
We are unaware of any case in which the government has
attempted to apply § 1363 to a person’s injury of her own
property, or of any decision addressing whether the statute
reaches such conduct. We agree with the government that it
does not.
To understand why, it is necessary to trace § 1363’s roots
back to its historical antecedents. The statute that would
ultimately give rise to § 1363 more than a century later is an
1825 federal arson law. The provision contained two arson
offenses. The first made it a capital felony, within certain
federal enclaves, to “wilfully and maliciously” burn “any
dwelling-house, or mansion-house, or any store, barn, stable,
or other building, parcel of any dwelling or mansion-house.”
Act of Mar. 3, 1825, ch. 65, § 1, 4 Stat. 115. The second
covered real property and certain personal property “not parcel
of a dwelling house” in those same enclaves, punishing anyone
who “wilfully and maliciously” burned such property by up to
ten years of imprisonment. Id. § 2. Those provisions, as
forebears of § 1363, likewise addressed willful and malicious
17
injury to property while distinguishing between dwellings and
non-dwellings.
We have found no decision specifically addressing
whether the 1825 arson provisions applied only to the property
of another. It is quite possible the question never arose
because the law was settled. At common law, arson law
served to protect the physical safety of the persons in
possession of a dwelling rather than their property interest in
it. See John Poulos, The Metamorphosis of the Law of Arson,
51 Mo. L. Rev. 295, 299–300 (1986). The common law
accordingly limited arson to the “malicious and wilful burning”
of the house “of another.” 4 William Blackstone,
Commentaries on the Laws of England 220 (1770) (emphasis
added). Contemporary dictionaries at the time of the 1825 law
embodied the same understanding: “In law, the malicious
burning of a dwelling house or outhouse of another man, which
by the common law is felony.” Arson, Noah Webster, An
American Dictionary of the English Language (1828)
(emphasis added).
By 1825, moreover, more than twenty states had enacted
arson statutes of their own. Most expressly confined the
offense to the property “of another.” See e.g., 16 Ohio Laws
166, § 13 (1818); Ind. Rev. Laws 142, § 20 (1824); 1 Mo. Laws
284, § 16 (1825). Others, like the federal statute, omitted that
phrase. Even so, there is no indication that the omission was
understood to depart from the common law by expanding arson
to the burning of one’s own property. To the contrary, the
state decisions construing statutes lacking an express “of
another” limitation confined the offense to another person’s
property, in keeping with the common law. See Martha v.
State, 26 Ala. 72, 74–75 (Ala. 1855); State v. Sarvis, 24 S.E.
53, 54 (S.C. 1896).
18
Circumstances in which legislatures affirmatively
removed an express “property of another” limitation are
different. When the terms of a state’s arson law, unlike the
federal law, initially contained such an express limitation but
the legislation later removed it, courts naturally understood that
express change to mean that the law now encompassed the
burning of one’s own property. See State v. Cazeau, 8 La.
Ann. 109, 117 (La. 1853); Shepherd v. People, 19 N.Y. 537,
542–43 (N.Y. 1859); State v. Hurd, 51 N.H. 176, 176–77 (N.H.
1871). But when a state arson law from the outset contained
no indication one way or another—as with the federal law—
we are unaware of any decision construing the law to
encompass the burning of one’s own property at any time while
the 1825 law was in effect.
The 1825 provisions remained on the books until 1909,
when Congress amended them without materially altering their
essential makeup. See Act of Mar. 4, 1909, ch. 321, §§ 285–
286, 35 Stat. 1144. There continued to be two provisions, and
it remained the case that one addressed willfully and
maliciously burning dwellings while the other addressed
willfully and maliciously burning property other than
dwellings. No reported decision appears to have considered
whether those laws reached the burning of one’s own property.
But the continuity in the provisions’ language and structure
gives little reason to suppose that they encompassed burning
one’s own property if their 1825 precursors did not. Some
states, by contrast, amended their laws expressly to encompass
burning one’s own property, at least in specified circumstances.
See, e.g., Mich. Rev. Stat. ch. 4 § 1 (1838) (covering the
burning of a building “owned by himself or another” in the
“night time”); Me. Rev. Stat. ch. 119, § 1 (1857) (same); Nev.
Comp. Laws § 2363 (1873) (same); Gen. Laws of Or. ch. 44
§ 535 (1866) (same).
19
Then, in 1948, the federal statutes assumed their current
form. As part of its general recodification of the federal
criminal code, Congress recodified the 1909 statutes, in two
different chapters, as 18 U.S.C. §§ 81 and 1363. See Act of
June 25, 1948, ch. 645, §§ 81, 1363, 62 Stat. 683, 764. Section
81 remained an arson statute: it is the sole provision in a
chapter entitled “Arson,” addressing “[a]rson within [the]
special maritime and territorial jurisdiction” of the United
States and covering a person who “willfully and maliciously
sets fire to or burns” property within that jurisdiction. 62 Stat.
688. Section 1363, meanwhile, assumed essentially its
present form, encompassing willfully and maliciously
destroying or injuring property within the special maritime and
territorial jurisdiction in ways other than setting fire to it. 62
Stat. 764.
Congress gave no indication that it intended to broaden the
reach of § 1363 to encompass injuring or destroying one’s own
property. To the contrary, Congress, as noted, grouped § 1363
with three other provisions in a chapter entitled “Malicious
Mischief.” See id. At the time, malicious mischief was
universally understood to address destruction or injury of
another person’s property, not one’s own. See Malicious
Mischief, Webster’s New International Dictionary (2d ed.
1941) (injury to the property “of another”); 3 William L.
Burdick, The Law of Crime § 778 (1946) (“malicious injury or
destruction of the property of another”); Am. Jur. supra § 2
(“wilful and unlawful injury to or destruction of the property of
another”). That is in concert with the historic conception of
“malice” as conduct operating “to the prejudice of another
person,” not to the prejudice of oneself. Malice, Black’s Law
Dictionary (1st ed. 1891).
The surrounding provisions Congress codified alongside
§ 1363 in the “Malicious Mischief” chapter reinforce the
20
chapter’s outward-facing focus on property of someone else.
Those provisions prohibited injury to “any property of the
United States,” interference with communication lines
“operated or controlled by the United States,” and interference
with property involved in “foreign commerce,” in which the
United States has particular interests. See 18 U.S.C. §§ 1361,
1362, 1364 (1948); see also Wharton’s Criminal Law supra §
1319 (“malicious mischief may be defined to be any malicious
or mischievous physical injury, either to the rights of another
or to those of the public in general”) (emphasis added). Those
provisions by nature would not involve one’s own property.
We have no cause to consider whether the same
understanding governs the aforementioned 18 U.S.C. § 81,
which addresses the commission of arson in the special
maritime and territorial jurisdiction of the United States. Nor
do we find it relevant to our analysis to consider the two more
broadly applicable, later-enacted federal arson statutes, 18
U.S.C. §§ 844(f) and 844(i). Unlike §§ 81 and 1363, which
trace back to 1825, §§ 844(f) and (i) were first enacted in 1970.
By that time, it was much more common for state laws and
other authorities to treat arson as encompassing burning one’s
own property. See e.g., Model Penal Code § 220.1 (1962).
The modern statutes also have a different placement in Title 18
than § 1363. Whereas § 1363 was placed in chapter 65 on
“Malicious Mischief,” a title long understood to refer to the
harming of another, §§ 844(f) and (i) were placed in chapter
40, which has the general title “Importation, Manufacture,
Distribution, and Storage of Explosive Materials,” 84 Stat. 956,
957–58. Because of their considerably different statutory
structure and pedigree, §§ 844(f) and (i) do not suggest that §
1363 encompasses burning one’s own property.
For all those reasons, we agree with the government’s
interpretation of § 1363 as addressed to injuring or destroying
21
someone else’s property, not one’s own. And that means
Ortega-Hernandez’s § 1363 offense categorically involves the
use of physical force against the property “of another.”
* * * * *
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.