United States v. John G. Foutris , 966 F.2d 1158 ( 1992 )

BAUER, Chief Judge.

John Foutris pleaded guilty to offering an undercover Alcohol, Tobacco, and Firearms Agent $600.00 to burn down his tavern, in violation of 18 U.S.C. § 373. At sentencing, the district court determined that Foutris recklessly endangered the lives of others, and pursuant to Sentencing Guideline 2K1.4(b)(2), increased his base offense level by 14 levels. Foutris appeals this increase; we affirm.

I. Facts

Foutris operated the Six Pence Tavern in a rented storefront at 5947 N. Broadway Street, in Chicago, Illinois. The tavern was not profitable, and Foutris’ partner absconded with $100,000 from another venture, leaving Foutris in financial straits. To escape his lease, Foutris offered one of his regular customers $1,000 to torch the tavern. Apparently the customer did not leap at the offer, and instead, introduced Foutris to Rich Marianos. Foutris believed Marianos was a professional arsonist, when in fact, Marianos is an agent with the Bureau of Alcohol, Tobacco, and Firearms.

During their taped meetings, Foutris told Marianos that he wanted the tavern destroyed. Marianos asked Foutris, “You want it burned completely to the ground[,] huh?” Foutris answered: “Well[,] not the whole thing, inside the bar only, I don’t give a shit for the building, it’s not my building.... I don’t want to bother the building.” Transcript of Monitored Conversation made 4/18/90, at 1. (“4/18/90 Transcript”). Foutris disabled his alarm, and provided Marianos with accelerants to start the fire. Foutris initially agreed to bring Marianos two or three bottles of gasoline to get the fire going, but ultimately decided that Marianos should use lighter fluid, paint thinner, and liquor from the bar. After the final details were worked out, Foutris was arrested.

The tavern is located in a storefront constructed of masonry and brick. A hardware store that stocks flammable liquids, such as paint, paint thinner, turpentine, and other accelerants, is located in the adjoining building. There is a beauty shop next to the hardware store, and five residential apartments over the shop. The apartments are 37.5 feet from the tavern.

The district court found that .Foutris intended a limited fire that would destroy the merchandise and fixtures in his tavern, but not the building. Nevertheless, because Foutris took no precautions to ensure, or significantly influence, the containment of the fire, the district court concluded he recklessly endangered the lives of others. Regardless of Foutris’ intent, the court found, he took no steps to ensure that the fire could be struck before it endangered passersby, firemen, and residents of the nearby apartments. The court found that Foutris “did not know with whom he was dealing in the planning of this offense, further demonstrating his recklessness as to outcome in spite of his admonition to his coconspirator to only do property damage and to limit the fire to the property inside the building.” Transcript of Sentencing Hearing at 38. The court also stated that it could reasonably assume that an uncontrolled fire in a tavern “will expand and spread without regard to the intentions of its planner.” Id. at 39. Based upon these findings, the district court held that Foutris recklessly endangered the lives of others, and increased his offense level pursuant to Guidelines § 2K1.4. Foutris received a 21-month sentence, with 36 months of supervised release.

II. Analysis

The government bears the burden of proof on factors justifying an enhancement of a defendant’s sentence. United States v. Spillman, 924 F.2d 721, 723 (7th Cir.1991). Whether an enhancement applies is a question of fact for the sentencing judge, which we review for clear error. Id. See also United States v. Boyer, 931 F.2d 1201, 1203-04 (7th Cir.1991); United States v. Hubbard, 929 F.2d 307, 310 (7th Cir.1991). We review sentencing determinations deferentially, and will affirm the sentence imposed unless we are left with a “definite and firm conviction that a mistake has been committed.” Boyer, 931 F.2d at 1204. See also United States v. McGuire, 957 F.2d 310, 315 (7th Cir.1992); United States v. Lewis, 954 F.2d 1386, 1396 (7th Cir.1992).

The version.of § 2K1.4 applied by the district court sets forth adjustments to the base offense level based upon specific offense characteristics, which must be determined with reasonable certainty. See Sentencing Guideline § 2X1.1. As the concurrence points out, this section was no longer in effect when Foutris was sentenced. Courts are to apply the Guidelines in effect at the time of sentencing unless the ex post facto clause is violated. United States v. Bader, 956 F.2d 708, 709 (7th Cir.1992). The amendment to § 2K1.4 did not affect Foutris’ sentence in this case, however, so we shall ignore the error. See infra n. 2.

Section 2K1.4(b)(2) provided: “If the defendant recklessly endangered the safety of another, increase by 14 levels.” Foutris argues that the 14-level increase is unwarranted in this case for three reasons: (1) the district court did not find that anyone was actually endangered because no fire was set; (2) Foutris specifically intended that no one be endangered by the fire; and (3) Foutris contemplated a small fire that would destroy only the inside of the tavern. The government contends that the court properly noted “the potential seriousness of the criminal plot that was entered into by the defendant,” and sentenced Foutris appropriately. Sentencing Tr. at 33.

The district court, Foutris, and the government rely heavily upon the First Circuit’s analysis of § 2K1.4 in United States v. Medeiros, 897 F.2d 13 (1st Cir.1990). In Medeiros, the defendant acted as a middleman between an undercover agent and a professional arsonist. The agent told Me-deiros that he wanted to burn down a 90-year-old, oil-soaked, wooden building located next to a residence. Medeiros explained to the undercover agent that the agent should stick around and watch the fire because it would be a “good show.” Id. at 19. Taped conversations indicated that the defendant expected a spectacular blaze with flying debris.

The Medeiros court contrasted the contemplated fire in a commercial building located close to a residence, to a fire in an abandoned barn in the middle of a field. A major fire, located close to residential buildings, with concomitant rescue attempts, the court held, recklessly endangered others. The court recognized “that all fires present some danger to firefighters, and risks of a minor fire have presumably been factored into the base offense level. However, this is not a conspiracy involving ‘malicious mischief,’ i.e., minor property damage under circumstances that do not present an appreciable danger.” Id. at 20 (quoting Sentencing Guidelines § 2K1.4, Commentary, Background).

The district court in this case, relying upon Medeiros, found the relevant inquiry when applying § 2K1.4 is

whether there was sufficient evidence for the court to determine that the location of the building as described and depicted and the nature of the fire as planned would, with reasonable certainty, recklessly have, endangered the occupants of the residence or the firefighters called upon to control the fire.

Sentencing Tr. at 33 (quoting Medeiros, 897 F.2d at 19). We have recently revisited this question in two cases. United States v. Guadagno, 970 F.2d 217 (7th Cir.1992); United States v. Golden, 954 F.2d 1413 (7th Cir.1992). In Guadagno and Golden, we refined the standards for reviewing determinations under § 2K1.4(b)(2). We held that the nature of the contemplated arson, and factors that might aggravate its seriousness are proper considerations under § 2K1.4.

Further, in Golden, we held that

[i]n this day and age, the arson of an urban structure — whether residential or commercial — is virtually a per se reckless endangerment of others.... Even if a building is abandoned, there is always the chance that someone might be inside, or that a fire fighter may be injured or killed while putting out the flames. It is also common knowledge that fires which cannot be quickly contained will often spread to other structures and thereby amplify the risks of injury to additional civilians and fire fighters.

Golden, 954 F.2d at 1417. We did note in Golden, however, that an urban building that is isolated from other structures might not pose the same manifest danger to others, and, therefore, might not merit application of § 2K1.4(b)(2).

But. in Golden, the defendants poured gasoline down a hole in the roof of a grocery store and tossed in Molotov cocktails. The store was located on the south side of Chicago in a residential neighborhood. We found the defendant’s contentions that no one was actually injured, and that he was not aware anyone would be endangered by the fire, did not bar application of the 14-level enhancement. Id. at 1416-17.

Similarly in Guadagno, the defendant used two cans of gasoline and one can of kerosine to set fire to his grocery store. Although the store was several hundred feet from the nearest structure, and was, therefore, physically isolated, we concluded the district court properly applied § 2K1.4. Physical proximity to other structures is not the only way in which an urban fire can endanger lives. The defendant argued that he took precautions to prevent people from being injured by the fire — he blocked one entrance, made sure his employees had left the premises, and disabled a nearby pay telephone. Nevertheless, we found the large scale fire that the defendant planned recklessly endangered firefighters and passersby, including a woman who tried to use the disabled phone just outside the store. The defendant used so much gas to start the blaze that the back wall of the building was blown off.

We find that Golden and Guadagno are dispositive here. Like the defendants in those cases, Foutris contends that because he did not specifically intend to harm anyone, and because no one was actually harmed, he cannot be found to have endangered lives recklessly. As we have stated, this contention is unavailing. “In this context, reckless endangerment requires proof that the defendant specifically intended to cause the type of fire that could endanger others, not that the defendant ‘consciously sought to harm others.’ ” Guadagno, - F.2d at 224 (quoting United States v. Golden, 954 F.2d at 1415-16).

Further, Foutris planned to start a fire using flammable liquids in a storefront on a busy Chicago Street. In the adjoining building, a hardware store, flammable liquids were stored. Next to the hardware store, 37.5 feet from the tavern, was a building containing five apartments. That the liquids in the hardware store were not immediately adjacent to the adjoining tavern wall does not remove the risk they posed to the severity of the fire. Further, Foutris disabled his alarm system so the arsonist could avoid discovery. This prevented any early warning of the hazard to passersby or occupants of the neighboring buildings. There is no evidence in the record-that there was a sprinkler system on the premises which might extinguish a fire before it spread from the bar to the exteri- or structure.

Despite these facts, Foutris contends that because he did not intend to start a major or spectacular fire, like the one contemplated in Medeiros, he cannot be found to have endangered the lives of others recklessly. We disagree. Based upon the dictates of Golden, we find that the district court did not commit clear error in finding based upon these factors, particularly the use of accelerants and the close proximity of a residential structure, that Foutris recklessly endangered lives.

Moreover, we do not believe our rule that urban fires are almost per se reckless endangerment under the old § 2K1.4(b)(2) is unwarranted. At sentencing, a judge is not required to gather detailed technical information on the construction of the building or statistics on how often fires in such buildings spread. This trilogy of cases illustrates that district courts carefully consider the facts surrounding each arson, including the location of the building in relation to neighboring structures, the proximity of residential buildings, the type and size of fire contemplated by the arsonist, the way that the fire is started, precautions taken by the arsonist to avoid injuries, and factors that might contain or exacerbate- the fire’s spread. Clearly, district courts have not used the standard set forth in Golden to support snap judgments that unfairly impact sentencing.

Wé also question the concurrence’s application of statistical data in this case. It concludes, based on arson figures provided by the National Fire Protection Association (and others), that each arson in 1990 resulted in only .0075 deaths (or, 7.75 deaths per 1000 arsons, where a difference of .00028 in the overall figure represents 26 lives per year). Based on this, and other facts, it seems to conclude that the risk of death in arson cases is quite low. But this reasoning is not entirely unproblematic. Another example illustrates the difficulty. There were 16,354,000 United States military personnel involved in World War II. Of these, 291,557 were killed in battle. Annual figures show that for every 1000 soldiers, 8.6 were killed in battle. Department of Commerce, 2 Historical Statistics of the United States,'Series Y 856-903, at p. 1140 (1976). This means a member of the armed forces faced a .0086 chance of death in action. Based upon these calculations, then, we might conclude that military service during war-time is not particularly risky. But, the soldier getting bullets lobbed at his head, like the firefighter facing a burning building, might disagree.

Moreover, the Guidelines have been amended, and our interpretation of reckless endangerment seems to be of questionable significance for future cases anyway. See 1990 and 1991 Sentencing Guidelines § 2K1.4(a)(lH4).²

Foutris also argues that former § 2K1.4(b)(5), which applied “if the defendant endangered the safety of another person” is the more appropriate specific offense characteristic in these facts. The increase for simple endangerment is four levels, as opposed to the 14-level increase for reckless endangerment.

The Commentary to the arson guideline provides that where more than one specific offense characteristic applies, the sentencing court should use the greatest. § 2K1.4(b). We have found that the district court’s determination that Foutris recklessly endangered the lives of others was not clearly erroneous. Because we find no clear error in the district court’s findings, we refuse to alter its sentence and apply the lesser increase. As the court in Medeiros noted, “[i]t will always be the case that where reckless endangerment is found, simple endangerment even more clearly will appear.” 897 F.2d at 20. This does not justify disturbing a trial judge’s sentencing determination.

III.

For the foregoing reasons, the judgment of the district court is

Affirmed.

2 . The current version of § 2K1.4 provides:

(a) Base Offense Level (Apply the Greatest): (1) 24, if the offense (A) created a substantial risk of death or serious bodily injury other than a participant in the offense, and that the risk was created knowingly: or (B) involved the destruction or attempted destruction of a dwelling;

(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;

(3) 2 plus the offense level from § 2F1.1 (Fraud and Deceit) if the offense was committed in connection with a scheme to defraud; or

(4)2 plus the offense level from § 2B1.3 (Property Damage or Destruction).

The version of the Guidelines under which Fou-tris was sentenced provided a 14-level increase in a defendant’s base offense level if he recklessly endangered the lives of others. This corresponds to the current base offense level of 20 for such conduct (base offense level 6 plus 14 levels). Thus, the new guideline provides the same level of punishment, but defines more precisely the requirements of each offense level.

We also note that the Application Notes provide that substantial risk of death or injury includes risk to firefighters and emergency personnel who respond to the fire. Id.