Lead Opinion
Opinion by Chief Judge KOZINSKI; Concurrence by Judge KLEINFELD.
OPINION
What does it mean to destroy land?
Facts
A jury convicted Clyde DeWayne Holmes, Jr., a volunteer fireman, on six counts of setting public lands afire, in violation of 18 U.S.C. § 1855. He burned about a thousand acres owned by the Bureau of Land Management (BLM) that were covered by sagebrush and other vegetation. At sentencing, Holmes argued that his offense “did not include the destruction or attempted destruction of a place of public use,” which carries a base offense level of 24. See U.S.S.G. § 2K1.4(a)(l). The district court rejected this argument and sentenced Holmes to 72 months. We review the district court’s interpretation of the Guidelines de novo, its application of the Guidelines to the facts for abuse of discretion and its factual findings for clear error. See United States v. Cantrell,
1. Holmes argues that he didn’t destroy or attempt to destroy a place of public use, but he waived the issue by conceding it below: “Yeah, and like I said, I don’t disagree that it’s a place of public use. Obviously it’s open to the public but it just seems that ... [the arson] endangered a place of public use.... ” We decline to address it. See Fed. Sav. & Loan Ins. Corp. v. Butler,
2. Holmes argues that the burning of grass and sagebrush didn’t destroy the land because there’s no evidence “that a member of the public was denied usage [sic] of the land for some higher cultural or recreational purpose,” or “that the land
The Guidelines don’t explain what it means to destroy something, but we have a pretty good idea from common usage. Drop a Ming vase, and it’s kaput. Spill some milk on your computer, and you’ll have something to cry over. And Rover will surely destroy your Jimmy Choos if you give him half a chance. But it’s hard to think of examples where land is destroyed. A large explosion might dissipate some of the dirt and leave a crater; dumping toxic waste might render land uninhabitable for a long while. Yet nothing is ever truly destroyed; it merely changes form. E — mc
To begin with, the damage needn’t be total or irreversible. Most things that are destroyed can be made whole by the application of sufficient effort and resources. For example, a crashed car can often be restored to “like new” condition. Nevertheless, we think of a car as “totaled” when the cost of repair exceeds its pre-accident market value. Even if the owner decides to rebuild anyway — perhaps as a hobby or for sentimental reasons — we’d still consider the car to have been destroyed.
Destruction also need not eliminate every possible use of the object. Cf. United States v. Causby,
While the line between damage and destruction is not a precise one, we consider something to have been destroyed if it is rendered incapable of being used for one or more of its principal purposes, and can’t be restored swiftly and relatively cheaply. In the case of land, we consider it destroyed if its aesthetic, environmental, recreational, economic or cultural uses have been eliminated for a significant period of time, generally meaning more than a year. Cf. Sierra Club v. Morton,
Finally, when we talk about the destruction of land, we don’t just mean the earth’s crust. We also refer to the vegetative growth, bodies of water, rock formations and fossils that are found on the earth. See State v. Coffee,
3. The district court correctly interpreted section 2K1.4(a)(l) to require that the land here suffer more than short-term damage, but less than complete obliteration: “[This is] not the situation where there’s a wildfire and then the next year everything is back just the way it was. It sometimes takes decades for the land to restore itself and sometimes it never happens because of cheatgrass infestation which usually follows right on the heels of a wildfire.” If this is true, then the land would clearly have been destroyed under the principles outlined above. But the learned district judge didn’t state the basis for his finding, and we see no evidence in the record to support it. The court went on to say: “I deal with these kinds of cases involving impact on the environment all the time. There’s a macrobiotic crust that is devastated by the wildfire. There’s just — there’s a lot implicate [sic] — that you can’t see. The grass may be growing but it’s not the same.” Yet nowhere in the record was there any evidence that the fires caused any damage to the macrobiotic crust or any cheatgrass infestation. The government did introduce some potentially relevant evidence, including a statement of loss of wildlife habitat and shooting areas and restitution figures for the BLM land. The district court didn’t mention this evidence when it applied the higher base offense level, and we don’t see an obvious connection between the evidence and the district court’s decision.
On appeal, the government argues in support of the district court’s theory that the fires destroyed the macrobiotic crust, but that can’t make up for its earlier failure to present evidence to that effect. This isn’t the sort of common knowledge district judges may rely on in sending someone to prison. Rather, the extent of damage to BLM land is a factual determination as to which there needs to be evidence, quite possibly from experts. The government presented no evidence to support the district court’s findings, and Holmes was not given the opportunity to present evidence on how his fires affected the BLM land.
For similar reasons, we can’t conclude that Holmes only “endangered” the land, which would result in a lower base offense level than if he destroyed it. See U.S.S.G. § 2K1.4(a)(2). Endangering means putting the property at risk but resulting in no actual damage, or damage that is less than destruction. Cf. Price v. U.S. Navy,
We vacate Holmes’s sentence and remand so that the district court can impose a sentence that isn’t infected by procedural error. See United States v. Carty,
REVERSED and REMANDED.
Notes
. At the time, it embraced the following: 18 U.S.C. §§ 32(a), (b), 33, 37, 81, 112(a), 844(f), (h) (only in the case of an offense committed prior to November 18, 1988), (i), 970(a), 1153, 1362, 1363, 1364, 1855, 1992(a)(1), (a)(2), (a)(4), 2275, 2280, 2281, 2282A, 2282B, 2291, 2332a, 2332f; 49 U.S.C. § 60123(b).
Concurrence Opinion
concurring:
I concur in the result. Although I agree that the sentence should be vacated and the case remanded for resentencing, my
Holmes set seven different fires over a period of around six weeks. All were on unoccupied land, and fortunately all were put out without injury to anyone. The restitution figure is $155,881.36, most of that for the $132,881.36 the BLM spent on firefighting, the rest for $10,325 for what the volunteer fire department spent and $12,675 for what the rod and gun club had to spend to reseed its acreage. One of the fires burned private land, for which the owner did not ask for any restitution.
Several factors added to Holmes’s blameworthiness. He was a volunteer firefighter, and although no special expertise contributed to or was needed to set the fires, people expect firefighters to fight fires, not start them. And he lied when he was caught, sending the authorities down several paths that might have led to charges against innocent people. He gave truck descriptions, license plate numbers, and other identifiers that could have landed someone innocent in federal prison instead of himself. Fortunately, he literally left tracks, tire tracks, pointing to him, reported the fires anonymously from locations establishing that he was probably the person who called 911, his truck was seen by a BLM officer leaving the area where the fires had been reported only thirty seconds before a new fire was discovered, and he set the fires in locations of the fires all within a six mile circle and at times suggesting that he set them all in the afternoon after he got off work and before he got home for dinner.
The only issue before us is whether the district court erred by applying the more aggravated public arson guideline range. Holmes’s crimes were all for setting public land on fire, under 18 U.S.C. § 1855. That statute provides for imprisonment for “not more than five years” for willfully setting on fire timber, underbrush or other inflammable material on public lands.
The applicable sentencing guideline is a broad one, for “Arson; Property Damage by Use of Explosives,” embracing numerous statutes.
In my view, that assignment was error. As bad as his crime was, it was not in the same class as blowing up the terminal at LAX,
The 24 level is reserved for arson and bombing that knowingly created a substantial risk of death or serious bodily injury to persons, or involved destruction or attempted destruction of “a dwelling, an airport, an aircraft, a mass transportation facility, a mass transportation vehicle, a maritime facility, a vessel, or a vessel’s cargo, a public transportation system, a state or government facility, an infrastructure facility, or a place of public use.”
People use the principles of ejusdem generis and noscitur a sociis all the time, to understand ordinary speech, without realizing that they are doing so, just as they do not realize that they are speaking prose. When the waiter says “would you like a cocktail? wine? anything else?,” we know he is asking for a drink order, not a dessert order, and not whether you would like a new car, even though a new car would fall within the “anything else” category were the phrase considered according to dictionary meaning without regard to context. And when the grade school boy tells his mother “we have to bring a ruler, a pencil, paper, and other stuff to school tomorrow,” we know he is talking about school supplies, not his pet puppy. Watching an old movie recently, I saw the words “roll film” on the screen, and quickly realized they meant “start the movie,” not “120 film for cameras.” The only way to tell that “roll” was a verb, not an adjective, was context.
Context requires that we consider “place of public use” in the context of “a dwelling, an airport, an aircraft, a mass transportation facility, a mass transportation vehicle, a maritime facility, a vessel, or a vessel’s cargo, a public transportation system, a state or government facility, [and] an infrastructure facility,” just as we consider the waiter’s “anything else” in the context of drink orders. The general catchall phrase means something of the same sort as the specific phrases. And that is so even though “place of public use” means, construed in isolation, anyplace at all where the public is not excluded, just as “anything else” means anything at all.
So let us look at the context, filling in concrete examples for generalities. Burn
The guideline for level 20 applies to “a structure other than” that list. The phrase “or a place of public use” is in both the 24 and the 20 guideline. The language of the 20 guideline has three strong implications for the case before us. First, by referring to “structure other than,” the language for level 20 assumes that all concrete examples in the higher guideline are “structure^].” A “place of public use” for level 24 is probably, therefore, used by the Sentencing Commissioners, to mean a structure. Second, the language implies that burning down or blowing up public facilities other than airports, airplanes, buses, trains, and so forth, should be punished a little less severely than burning down or blowing up structures in that specially designated class. Third, use of the identical catch-all phrase “place of public use” in both guidelines suggests that the commissioners intended it as a catchall for things like the preceding concrete terms, not something that trumps even the Pentagon and the White House in how protected it is.
The guideline under which Holmes was sentenced does not address environmental crimes, so it does not much matter for the public arson guideline whether the brush will grow back in a year, or whether the whistle pigs will return promptly, or whether the ground covering after the fire will differ in some respect. No doubt things will be different, just as one can never set foot in the same river twice, and land constantly changes from natural occurrences including lightning-caused fires. There are numerous guidelines for crimes against the environment, with offense levels ranging from 6 for putting hazardous devices on federal lands,
. The statute provides, in full:
Whoever, willfully and without authority, sets on fire any timber, underbrush, or grass or other inflammable material upon the public domain or upon any lands owned or leased by or under the partial, concurrent, or exclusive jurisdiction of the United States, or under contract for purchase or for the acquisition of which condemnation proceedings have been instituted, or upon any Indian reservation or lands belonging to or occupied by any tribe or group of Indians under authority of the United States, or upon any Indian allotment while the title to the same shall be held in trust by the Government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall be fined under this title or imprisoned not more than five years, or both. This section shall not apply in the case of a fire set by an allottee in the reasonable exercise of his proprietary rights in the allotment.
18 U.S.C. § 1855.
. Cf. United States v. Ressam,
. U.S.S.G. § 2K1.4(a)(1) (2007).
. The relevant sentencing guideline provides, in full:
§ 2K1.4. Arson; Property Damage by Use of Explosives
(a) Base Offense Level (Apply the Greatest):
(1) 24, if the offense (A) created a substantial risk of death or serious bodily injury to any person other than a participant in the offense, and that risk was created knowingly; or (B) involved the destruction or attempted destruction of a dwelling, an airport, an aircraft, a mass transportation facility, a mass transportation vehicle, a maritime facility, a vessel, or a vessel’s cargo, a public transportation system, a state or government facility, an infrastructure facility, or a place of public use;
(2) 20, if the offense (A) created a substantial risk of death or serious bodily injury to any person other than a participant in the offense; (B) involved the destruction or attempted destruction of a structure other than (i) a dwelling, or (ii) an airport, an aircraft, a mass transportation facility, a mass transportation vehicle, a maritime facility, a vessel, or a vessel’s cargo, a public transportation system, a state or government facility, an infrastructure facility, or a place of public use; or (C) endangered (i) a dwelling, (ii) a structure other than a dwelling, or (iii) an airport, an aircraft, a mass transportation facility, a mass transportation vehicle, a maritime facility, a vessel, or a vessel’s cargo, a public transportation system, a state or government facility, an infrastructure facility, or a place of public use;
*665 (3) 16, if the offense involved the destruction of or tampering with aids to maritime navigation; or
(4) 2 plus the offense level from § 2B1.1 (Theft, Property Destruction, and Fraud).
(b) Specific Offense Characteristics
(1) If the offense was committed to conceal another offense, increase by 2 levels.
(2) If the base offense level is not determined under (a)(4), and the offense occurred on a national cemetery, increase by 2 levels.
(c) Cross Reference
(1) If death resulted, or the offense was intended to cause death or serious bodily injury, apply the most analogous guideline from Chapter Two, Part A (Offenses Against the Person) if the resulting offense level is greater than that determined above.
U.S.S.G. § 2K1.4 (2007).
. The guidelines are construed similarly to statutes. See United States v. Treadwell,
. Portland 76 Auto/Truck Plaza, Inc. v. Union Oil Co.,
. 18 U.S.C. § 1864; see U.S.S.G. § 201.6(a)(4) (2007).
. 42 U.S.C. § 6928(d); see U.S.S.G. § 201.2(a).
. 49 U.S.C. § 5124; see U.S.S.G. § 201.2(b)(7).
. 42 U.S.C. § 6928(e); see U.S.S.G. § 201.1(a).
. See United States v. 1996 Freightliner Fld.,