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Sixth Circuit Reverses Sentence Enhancement for Arson Conviction
SIXTH CIRCUIT REVERSES SENTENCE ENHANCEMENT FOR ARSON CONVICTION
In U.S. v. Georgia, No. 00-1917 (Feb. 1, 2002), the Sixth Circuit Court of Appeals reviewed the defendant's arson sentence. On December 9, 1999, at 1:24 a.m., the Benton Harbor Fire Department, a full-time, professional department, responded to a fire at the Liberty Center Temple of Deliverance (the church) in Benton Harbor, Michigan. The firefighters broke a window to provide a vent for the smoke and proceeded to enter the building. After walking approximately five feet into the church, the firefighters quickly exited because of the size of the fire. Less than ten minutes later, part of the church's roof collapsed. None of the firefighters were injured in the fire.
Although the church was constructed primarily of brick and cinder blocks, its roof was built with wood beams and rafters. Two commercial heating, ventilating, and air conditioning (HVAC) units rested on the flat roof. These HVAC units were approximately six to eight feet long, four to six feet wide, and two to four feet deep. A unit this size is heavy enough to crush a person if it were to fall. When part of the roof collapsed, one of the HVAC units indeed fell to the floor of the church, although no one was injured.
Investigators discovered that the fire had ten separate and distinct points of origin. A point of origin, according to the government's expert witness, is a place where the "ignition source, the heat, the energy, and the fuel come together to start [a] fire." Several of the points of origin were electrical outlets that were stuffed with fiber material. Although these outlets ignited, they quickly self-extinguished. Other points of origin were paper fires in the pastor's office. An accelerant was used in only one of the ten different points of origin. The part of the roof that collapsed was over the area where the accelerant was used.
Georgia had performed construction work at the church in August of 1999, but he quit when he was not paid. During the investigation of the fire, Georgia was interviewed. He eventually admitted that the pastor of the church, Michael Robinson, had offered him $5,000 to burn down the church, and that he had agreed to set the fire.
Georgia was charged with setting fire to the church as part of a conspiracy to collect the insurance proceeds, in violation of 18 U.S.C. §§ 371, 844(h)(1), and 1341. Georgia pled guilty to the charge.
The presentence investigation report concluded that a base offense level of 20 was appropriate under United States Sentencing Guidelines § 2K1.4(a)(2). An objection to the report was filed by the government, which argued that an enhanced base offense level of 24 pursuant to United States Sentencing Guidelines § 2K1.4(a)(1)(A) was more appropriate under the circumstances. After hearing the testimony of a special agent with the Bureau of Alcohol, Tobacco and Firearms, the district court sustained the government's objection and used a base offense level of 24 in sentencing Georgia to 78 months in prison.
Unlike the vast majority of cases where an appellate court has affirmed the application of United States Sentencing Guidelines § 2K1.4(a)(1)(A), the present case involved neither the risk of a large explosion nor the presence of any nearby residences. Instead, the district court based its conclusion that the church fire in question "create[d] a very, very dangerous situation which you might not have in every fire" on three findings of fact: (1) Georgia used an accelerant, (2) the church had an all-wood roof, and (3) two HVAC units were on the roof. But all of these factors are relatively commonplace. This court has already noted that "virtually every instance of arson includes use of accelerants to some extent." Robert Lee Johnson, 116 F.3d at 165 n.2. It is also undeniable that a large percentage of buildings have wooden roofs. Furthermore, as the district court acknowledged, HVAC units are commonly placed on, or hung from, the roofs of nonresidential buildings. The combination of these factors is therefore unlikely to have posed a risk to firefighters that was beyond the risks normally associated with responding to a typical fire.
Moreover, according to the government's expert witness, "one of the common causes for fire-fighter death in fighting fires is structural collapse." The professional firefighters who responded to this fire were thus presumably aware of the risk that the HVAC units posed and took appropriate safety measures. Even if the firefighters did not take precautions to avoid this hazard, the actual risk that a falling HVAC unit would injure a firefighter does not appear to be "substantial." The bottom surface area of each HVAC unit was approximately 35 square feet. Although the surface area of the church is not in the record, we can safely assume that the building contained at least 3,500 square feet, given that two commercial HVAC units were used for climate control. The HVAC unit that fell would thus have occupied no more than one percent of the surface area of the church, making the likelihood of being injured from the falling unit quite small.
For all of those reasons, the court set aside as clearly erroneous the district court's determination that Georgia "created a substantial risk of death or serious bodily injury" within the meaning of § 2K1.4(a)(1)(A). The matter was remanded for resentencing.
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