United States v. Nolan Brewer

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued March 3, 2020
Decided March 18, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-2095
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v. No. 1:18-cr-00286-001
NOLAN BREWER, Tanya Walton Pratt,
Defendant-Appellant. Judge.
ORDER
Nolan Brewer and his then-wife spray painted swastikas and iron crosses onto a
synagogue’s dumpster enclosure. Next to it, he set fire to an area of grass on the
property using a homemade mixture of gasoline and styrofoam. Brewer pleaded guilty
to conspiring to injure, oppress, threaten, and intimidate the synagogue’s congregants
because they were Jewish, in violation of their right to hold property free of racial
discrimination. See 18 U.S.C. § 241. On appeal, he challenges the district court’s
application of a base offense level of 20 under the arson sentencing guideline,
see U.S.S.G. § 2K1.4(a)(2)(C), because he “endangered … a place of public use.” Because
No. 19-2095 Page 2
the district court did not clearly err in concluding that the record evidence supported
the application of this guideline, we affirm.
In July 2018, Brewer and his then-wife set out to terrorize and intimidate the
Jewish community in Carmel, Indiana. First, they spray painted swastikas and iron
crosses onto a dumpster enclosure that sat at the edge of a synagogue’s property, set off
by a paved service drive. The couple then decided to illuminate the graffiti with a fire.
On two patches of grass (directly next to and a few feet away from the enclosure) they
dumped a mixture of gasoline and melted styrofoam (homemade “napalm”). They then
set the mixture ablaze. The small patches of grass in contact with the mixture burned,
and the dumpster enclosure was charred. The couple also had with them, but did not
use, homemade “bombs” (foil-filled beverage bottles), which, they thought, would
explode from pressure once drain cleaner was poured inside. They also had pieces of
spark plugs, which they believed could be thrown at and shatter a glass window.
About two weeks later, FBI agents—after receiving a tip from one of Brewer’s
co-workers—stopped Brewer, searched his car, and interviewed him. In his car, the
agents found spray paint, bandanas, rubber gloves, ceramic spark plug parts, beverage
bottles containing pieces of foil, and two bottles of drain cleaner. During the interview,
Brewer told the FBI that his wife had communicated online with a man named Peter,
who selected the synagogue and told them what to do. Peter instructed them to bring
the spark plugs to “bust the windows … to try and get inside.” Peter also proposed that
the couple place a drain-cleaner “bomb” in the synagogue and “toss the napalm on top
of it … and then light it and run” so that when the “bomb” went off, “it would set the
napalm everywhere.”
Brewer, however, denied that he ever intended to follow through with Peter’s
plans. Brewer told the FBI that on their way to the synagogue, he and his wife agreed
that they were not going to “actually burn the place down … no, of course not.” Brewer
stated he did not want to go into the synagogue because that would involve breaking
and entering and “destroying the actual internal structure rather than just having
something they could wash up.” He and his wife wanted to “get” the synagogue’s back
wall, but they were deterred by its lights and cameras, so they “got the dumpster
instead.” The purpose of burning the “napalm” was to create a lighting effect in front of
the spray-painted swastikas “[r]ather than … burning anything.”
No. 19-2095 Page 3
The government charged Brewer under 18 U.S.C. § 241, which criminalizes
conspiring to “threaten” or “intimidate” any person “in the free exercise” of “any right
or privilege secured” under the Constitution.
In the presentence investigation report, which recommended a guideline range
of 51–63 months (based on a total offense level of 24 and criminal history category of I),
the key factor was the base offense level. An offense under 18 U.S.C. § 241 involving
two participants corresponds to a base offense level of 12, U.S.S.G. § 2H1.1(a)(2), unless
the offense level applicable to “any underlying offense” is higher, id. § 2H1.1(a)(1).
Indeed, the PSR recommended a base offense level of 24, as called for under the arson
guideline, U.S.S.G. § 2K1.4(a)(1)(B), when the underlying offense involves “the
destruction or attempted destruction of … a place of public use.” Id. The PSR then
applied a three-level enhancement because the offense was a hate crime, U.S.S.G.
§ 3A1.1(a), and deducted three levels for acceptance of responsibility, id. § 3E1.1.
At a joint change-of-plea and sentencing hearing, Brewer pleaded guilty without
a plea agreement, and the parties disputed whether § 2K1.4(a)(1)(B) applied to Brewer’s
offense. The government insisted that Brewer’s conduct involved the “attempted
destruction” of a place of public use based on Brewer and his wife’s plan to break into
the synagogue and use the drain-cleaner “bombs” to spread the “napalm.” Brewer, as
he had maintained during his FBI interview, denied that he ever intended to break into
or set fire to the synagogue.
The district court accepted neither position. Rather than rely on § 2K1.4(a)(1)(B)
for “attempted destruction” of the synagogue, the court invoked an alternative
provision under the guideline, § 2K1.4(a)(2)(C)—carrying a base offense level of 20—for
an offense that “endangered … a place of public use.” The court found that the
synagogue was a place of public use, that Brewer and his wife had set fire to its campus,
and therefore “[t]he fire in the grass [had] endangered the public place.” In the court’s
view, substantial evidence—including the couple’s original (but abandoned) plan and
the dangerous unused items they carried with them—showed that Brewer and his wife
conspired “to cause some type of destruction or endangerment” to the synagogue. The
offense level of 20 yielded a guideline range of 33–41 months in prison. The court
settled upon a 36-month sentence followed by two years of supervised release and a
restitution order of $700 to be paid to the synagogue.
On appeal, Brewer argues only that the district court erred in applying U.S.S.G.
§ 2K1.4(a)(2)(C) for “endanger[ing] … a place of public use.” He disputes that a place of
No. 19-2095 Page 4
public use was “actually endangered.” Instead, he claims his was merely a “small fire,”
set on the far side of the dumpster, which “burned out quickly without spreading” and
never posed any “actual danger to the synagogue.” He maintains that the guideline
does not cover the threat of minor damage; it encompasses only “actual”
endangerment, which he defines as the threat of total destruction or very serious harm.
Lastly, he faults the court for relying on the couple’s “original” but abandoned plan to
cause more damage than what they actually carried out.
We approach an interpretation of the Sentencing Guidelines in the same manner
as a question of statutory interpretation—by beginning with the text. United States
v. Foster, 902 F.3d 654, 657 (7th Cir. 2018). Section 2K1.4(a)(2)(C) applies “if the offense
… endangered … a place of public use.” A “place of public use” includes “parts of any
building, land, street, waterway, or other location that are accessible or open to
members of the public,” such as any religious place open to the public. U.S.S.G. § 2K1.4
cmt. n.1; 18 U.S.C. § 2332f(e)(6). No one disputes that the synagogue is a place of public
use. The district court went further and considered the synagogue’s entire “campus” as
the place of public use, a point that Brewer does not challenge. Indeed, the district court
found “[t]he location where the defendant and his wife did the destruction and set their
fires was on the campus of the synagogue….” The guideline does not, however, define
“endangered.” Among the circuits, the term has been addressed only by the Ninth
Circuit, which defines it as “putting the property at risk but resulting in no actual
damage, or damage that is less than destruction.” United States v. Holmes, 646 F.3d 659,
662 (9th Cir. 2011).
We review the district court’s underlying factual findings for clear error,
see United States v. Flores-Olague, 717 F.3d 526, 530 (7th Cir. 2013), and the court here did
not clearly err in finding that setting fire to “napalm” “on the campus of the
synagogue” endangered a public place. When asked to clarify the ruling during the
sentencing hearing, the district court noted, “This says if the offense endangered. … The
fire in the grass endangered the public place.” The court reasonably could conclude that
the fire by its very nature put the synagogue’s campus at risk (specifically the grass and
exterior areas, which Brewer does not contest are part of the place of public use), even if
it caused no actual damage. See Holmes, 646 F.3d at 662. Brewer dumped an accelerant
on open grass next to trees on the synagogue’s property and set the accelerant on fire.
The resulting fire was strong enough to scorch the dumpster enclosure and completely
burn the patches of grass. True, the fire did not spread and did not damage the
synagogue, but setting fire to a highly flammable substance on the synagogue’s exterior
property is enough to support the district court’s conclusion that “[t]he fire in the grass
No. 19-2095 Page 5
endangered the public place.” And that conclusion does not leave us with a “definite
and firm conviction that a mistake has been made.” United States v. Samuels, 521 F.3d
804, 815 (7th Cir. 2008) (quoting United States v. Wilson, 502 F.3d 718, 721 (7th Cir. 2007)).
A final point of clarification: We agree with Brewer that the district court should
not have evaluated § 2K1.4(a)(2)(C) based on the couple’s original but abandoned plan
of bringing about further destruction. But any error does not change the outcome
because the court reasonably could conclude that Brewer’s completed conduct alone
endangered a place of public use.
AFFIRMED