Unpublished Disposition, 931 F.2d 898 (9th Cir. 1990)

MEMORANDUM^** 

Roger Wayne McLaughlin appeals his sentence under Sentencing Guideline 2K1.4. We affirm.

On February 11, 1988, McLaughlin burned down the Crab Pot Restaurant and Lounge, located outside Warrenton, Oregon. When volunteer fire fighters from Warrenton responded to the fire, the building was fully engulfed in flames.

The grand jury indicted McLaughlin on October 13, 1988, for maliciously destroying, by means of fire, a building and other real and personal property used in interstate commerce, in violation of 18 U.S.C. § 844(i). McLaughlin plead guilty to the charge, and was sentenced to a term of 67 months incarceration and three years of supervised release. McLaughlin timely appealed from the judgment and sentence entered on October 3, 1990.¹ 

McLaughlin argues on appeal that the district court erred in enhancing his offense level by fourteen levels, pursuant to U.S.S.G. 2K1.4(b) (2).²  The district court found that the enhancement was appropriate because by setting fire to the Crab Pot, McLaughlin recklessly endangered the safety of the fire fighters who responded to the blaze. McLaughlin argues that the court's findings were in error, because there was no proof of his mental state and because the 2K1.4(b) (2) enhancement should not be applied to fire fighters.³ 

Recklessness requires proof that the defendant was aware of the risk created by his conduct, and that the risk was of such a nature and degree that to disregard it constituted a gross deviation from the standard of care a reasonable person would exercise under similar circumstances. See, e.g., U.S.S.G. 2A1.4, Application Note 1.

The proof before the district court at sentencing showed that McLaughlin "spread a very large amount of gasoline through a large portion" of the Crab Pot, causing the entire structure to be involved in flames by the time fire fighters arrived. The government also offered proof, to which McLaughlin did not object, showing the danger in which the fire fighters were placed while battling the conflagration. The proof consisted of a videotape of the fire, and reports from members of the volunteer fire fighters describing the situation at the scene of the fire.

Based on this evidence, the district court found that McLaughlin recklessly endangered the fire fighters who responded to the fire and overruled McLaughlin's objection to the presentence report's recommendation that the 14-point enhancement be used to increase the offense level. It was not speculative for the district judge to find that the safety of fire fighters was recklessly endangered when a large amount of gasoline was used to set ablaze and destroy a commercial building. McLaughlin had contracted with the owner of the Crab Pot to burn down the establishment so that the owner could collect the insurance money and use the property to build condominiums. It was entirely proper for the district judge to infer that McLaughlin was subjectively aware of the risk created by his conduct. We hold that the district court did not commit clear error in finding that McLaughlin recklessly endangered the fire fighters responding to the blaze. United States v. Bos, 917 F.2d 1178, 1180 (9th Cir. 1990).

McLaughlin argues that the 2K1.4(b) (2) enhancement should not apply when the person whose safety is endangered is a fire fighter, because such danger is inherent in the job of a fire fighter. We reject this argument.

Though this issue has not been previously addressed by our circuit, the First Circuit has rejected a similar argument.

We recognize that all fires present some danger to fire fighters.... Where a spectacular fire is planned near an occupied building, a finding of reckless endangerment to fire fighters would be based on a common sense understanding of the risks of putting out a major fire when rescue attempts are likely to be necessary.

United States v. Medeiros, 897 F.2d 13, 20 (1st Cir. 1990).

We also find support for our holding in the amended guidelines. Guideline 2K1.4 was amended effective November 1, 1990, and now provides for a base offense level of 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(a) (2). The application note to the guideline states: "Creating a substantial risk of death or serious bodily injury includes creating that risk to fire fighters and other emergency and law enforcement personnel who respond to or investigate an offense." U.S.S.G. 2K1.4, Application Note 2 (emphasis added).

In this amendment we read an explicit recognition that the endangerment to a fire fighter must be considered just as the endangerment to any bystander.

We hold that 2K1.4(b) (2) was intended to apply when the safety of fire fighters responding to a fire is recklessly endangered.

AFFIRMED.