United States v. Holmes, Jr., No. 09-30211 (9th Cir. 2011)
Annotate this CaseDefendant was convicted on six counts of setting public lands afire under 18 U.S.C. 1855, when he burned about a thousand acres owned by the Bureau of Land Management ("BLM") that were covered by sagebrush and other vegetation. Defendant argued that he did not destroy or attempt to destroy a place of public use, but waived the issue by conceding that he had. Therefore, the court declined to address the issue. Thus, the principal issue on appeal was whether the burning of grass and sagebrush destroyed the land where there was 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 itself was . . . rendered unusable into the indeterminate future" pursuant to the Sentencing Guidelines. The court held that the district court correctly interpreted U.S.S.G. 2K1.4(a)(1) to require that the land suffered more than short-term damage, but less than complete obliteration. The court held, however, that the district judge failed to state the basis for his finding and the court could see no evidence in the record to support it. The court also held that it could not conclude that defendant only "endangered" the land, which would have resulted in a lower base offense level than if he had destroyed it pursuant to U.S.S.G. 2K1.4(a)(2). Therefore, the court held that, if on remand, the district court found that the damage to the land did not amount to destruction, then it would probably determine that defendant endangered the land. Accordingly, the court vacated defendant's sentence and remanded for further proceedings.
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