United States v. Anderson ( 2000 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 97-30882
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KENNETH R. ANDERSON, SR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
96-CR-10017-01
October 12, 2000
Before DAVIS, EMILIO M. GARZA, Circuit Judges, and POGUE, Judge*.
PER CURIAM:**
A jury found Kenneth R. Anderson, Sr., guilty of conspiracy,
arson, mail fraud, and witness tampering. In accordance with the
Sentencing Guidelines and the recommendations of the presentencing
report (PSR), the district court sentenced Anderson to 97 months
imprisonment and three years of supervised release during which he
would pay, in monthly installments, a $50,000 fine and over $38,000
*
Judge of the U.S. Court of International Trade, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
in restitution. Anderson appeals his sentence, and we AFFIRM.
Anderson challenges two aspects of his sentence. First, he
argues that the district court erred when it adopted the PSR’s
recommendation of a base offense level of 24 for the arson offense.
See U.S.S.G. § 2K1.4(a)(1) & (2). Second, Anderson argues that the
district court erred in imposing a $50,000 fine despite the fact
that his age, physical condition and financial situation
demonstrate an inability to pay the fine. Since Anderson concedes
that he failed to made either of these challenges in the district
court, we review only for plain error. See United States v.
Aderholt, 87 F.3d 740, 744 (5th Cir. 1996)(guideline application);
United States v. Landerman, 167 F.3d 895, 899-900 (5th Cir.
1999)(fine). Even if we find that the district court erred, we can
reverse only if the error was plain, meaning obvious, and if the
error affected Anderson’s substantial rights. See Aderholt, 87
F.3d at 744. If Anderson satisfies this demanding threshold, we
have discretion to correct the district court’s error if it
“seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (citing United States v. Olano, 507 U.S.
725, 736 , 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)).
The Sentencing Guidelines provide that the base offense level
for arson should be:
(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 of a dwelling; [or]
(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 a dwelling; or
(C) endangered a dwelling, or a structure other than a
dwelling.
U.S.S.G. § 2K1.4 (1996). While the PSR recommended a base offense
level of 24, it did not provide any rationale for adopting
subsection (1) over subsection (2), nor did it indicate that
subsection (2) was a possibility. Similarly, as Anderson did not
challenge the base offense level in the district court, the court
adopted the recommendation of the PSR without an explanation.
Since Anderson’s arson concerned his nightclub, “Bodacious
Country,” and not a “dwelling,” this classification was only
correct if Anderson committed his offense knowing that he was
creating a substantial risk of death or serious bodily injury to
someone other than a participant in the offense. Although the
commentary to the Guidelines provides that creating a substantial
risk of death or serious bodily injury includes creating that risk
to fire fighters, See id.. Comment (n.2), other circuits have held
that the risk to fire fighters under this provision must include
something more than simply responding to a fire. United States v.
Johnson, 152 F.3d 553, 556s (6th Cir. 1998); United States v.
Honeycutt, 8 F.3d 785, 787-88 (11th Cir. 1993). We have not defined
the term “knowingly” as it relates to arson, nor have we explained
the necessary level of risk to fire fighters that must be present
for the application of commentary note 2.
We need not address those issues in this case. If Anderson
had objected to the use of the base offense level under U.S.S.G. §
2K1.4(1), the district court could have conducted a hearing and
made appropriate factual findings. Such findings may or may not
have been favorable to him. The district court’s failure to make
specific findings on the risks fire fighters might have taken in
fighting the fire and Anderson’s knowledge of such risks was not
due to its own error, but instead due to Anderson’s failure to
challenge the issue. In such circumstances, we almost never find
plain error. United States v. Ruiz, 43 F.3d 985, 991 (5th Cir.
1995).
Anderson’s ability to pay a fine and restitution in 35 monthly
installments of $2,524, considering his physical limitations,
financial situation and the PSR’s failure to specifically recommend
the imposition of a fine, presents a close question. See, e.g.
United States v. Hodges, 110 F.2d 250, 251-252 (5th Cir. 1997).
However, the district court adopted the findings in the PSR,
concluded that Anderson would be able to pay a fine, and developed
a payment plan designed around the limitations expressed in the
PSR. Moreover, the district court articulated specific reasons for
its findings, i.e. that Anderson has a college education and has
experience as a businessman. The district court’s conclusion finds
some support in the record. As a consequence, Anderson has not
demonstrated that the district court’s conclusion was a plain or
obvious error. See Olano 507 U.S. at 730-736; United States v.
Calverley 37 F.3d 160, 162-164 (5th Cir. 1994)(en banc).
Accordingly, the district court’s judgment is AFFIRMED.