U.S. v. Georgia

• Decision Date: 01 February 2002
• Docket Number: No. 00-1917.,00-1917.
• Citation: 279 F.3d 384
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willis Michael GEORGIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

279 F.3d 384

UNITED STATES of America, Plaintiff-Appellee, v. Willis Michael GEORGIA, Defendant-Appellant.

No. 00-1917.

United States Court of Appeals, Sixth Circuit.

Submitted October 26, 2001.

Decided and Filed February 1, 2002.

Timothy P. VerHey, Joan E. Meyer, briefed, Office of the U.S. Atty. for the W.D. of MI, Grand Rapids, MI, for Plaintiff-Appellee.

Paul L. Nelson, briefed, Fed. Pub. Def. Office, Grand Rapids, MI, for Defendant-Appellant.

Before: BOGGS, GILMAN, and BRIGHT,^* Circuit Judges.

OPINION

GILMAN, Circuit Judge.

On April 21, 2000, Willis Michael Georgia was charged with setting fire to a church as part of a conspiracy to collect on the insurance policy covering the building. Georgia pled guilty to the charge. The government objected to the presentence investigation report, which recommended a base offense level of 20. A base offense level of 24, the government argued, was more appropriate because Georgia had "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...." U.S. Sentencing Guidelines Manual § 2K1.4(a)(1)(A). After sustaining the government's objection, the district court sentenced Georgia to 78 months in prison. Georgia appeals, claiming that the district court's application of the sentencing enhancement is clearly erroneous. For the reasons set forth below, we VACATE Georgia's sentence and REMAND for resentencing consistent with this opinion.

I. BACKGROUND

A. Factual background

On December 9, 1999, at 1:24 a.m., the Benton Harbor Fire Department, a fulltime, professional department, responded to a fire at the Liberty Center Temple of Deliverance (the church) in Benton Harbor, Michigan. The firefighters broke a window to provide a vent for the smoke and proceeded to enter the building. After walking approximately five feet into the church, the firefighters quickly exited because of the size of the fire. Less than ten minutes later, part of the church's roof collapsed. None of the firefighters were injured in the fire.

Although the church was constructed primarily of brick and cinder blocks, its roof was built with wood beams and rafters. Two commercial heating, ventilating, and air conditioning (HVAC) units rested on the flat roof. These HVAC units were approximately six to eight feet long, four to six feet wide, and two to four feet deep. A unit this size is heavy enough to crush a person if it were to fall. When part of the roof collapsed, one of the HVAC units indeed fell to the floor of the church, although no one was injured.

Investigators discovered that the fire had ten separate and distinct points of origin. A point of origin, according to the government's expert witness, is a place where the "ignition source, the heat, the energy, and the fuel come together to start [a] fire." Several of the points of origin were electrical outlets that were stuffed with fiber material. Although these outlets ignited, they quickly self-extinguished. Other points of origin were paper fires in the pastor's office. An accelerant was used in only one of the ten different points of origin. The part of the roof that collapsed was over the area where the accelerant was used.

Georgia had performed construction work at the church in August of 1999, but he quit when he was not paid. During the investigation of the fire, Georgia was interviewed. He eventually admitted that the pastor of the church, Michael Robinson, had offered him $5,000 to burn down the church, and that he had agreed to set the fire.

B. Procedural background

On April 21, 2000, Georgia was charged with setting fire to the church as part of a conspiracy to collect the insurance proceeds, in violation of 18 U.S.C. §§ 371, 844(h)(1), and 1341. Georgia pled guilty to the charge.

The presentence investigation report concluded that a base offense level of 20 was appropriate under United States Sentencing Guidelines § 2K1.4(a)(2). An objection to the report was filed by the government, which argued that an enhanced base offense level of 24 pursuant to United States Sentencing Guidelines § 2K1.4(a)(1)(A) was more appropriate under the circumstances. After hearing the testimony of a special agent with the Bureau of Alcohol, Tobacco and Firearms, the district court sustained the government's objection and used a base offense level of 24 in sentencing Georgia to 78 months in prison.

II. ANALYSIS

A. Standard of review

Georgia argues that the district court erred in sentencing him pursuant to United States Sentencing Guidelines § 2K1.4(a)(1)(A). This Guideline sets the base offense level at 24 if the fire "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...." "[A] trial court's determination that a defendant knowingly created a substantial risk of death or serious bodily injury is a finding of fact that will not be disturbed unless clearly erroneous." United States v. Robert Lee Johnson, 116 F.3d 163, 165 (6th Cir.1997) (internal quotation marks omitted) (affirming the sentence of a defendant under United States Sentencing Guidelines § 2K1.4(a)(1)(A), because the fires he set in multiple buildings on a windy day stretched the resources of the volunteer fire department that responded to the fires); see U.S. v. Latouf, 132 F.3d 320, 331 (6th Cir.1997) ("Hence, the key inquiry is whether [the defendant] `knowingly' created a substantial risk of death or bodily injury. This is a factual finding that this court reviews for clear error.").

Although Robert Lee Johnson and Latouf state that a trial court's determination "that a defendant knowingly created a substantial risk of death or serious bodily injury" is a finding of fact, there is a distinction between underlying findings of fact and the application of those facts to a particular United States Sentencing Guideline. The determination that a defendant knowingly created a substantial risk of injury as set forth in Guidelines § 2K1.4(a)(1)(A) is a mixed question of law and fact, and, as such, it is subject to de novo review. United States v. Middleton, 246 F.3d 825, 844 (6th Cir.2001) ("A district court's application of the facts to the Sentencing Guidelines is a mixed question of law and fact that we review de novo."); see United States v. McDonald, 165 F.3d 1032, 1034 (6th Cir.1999) ("[A] district court's determination of whether the facts constitute an obstruction of justice [under United States Sentencing Guidelines § 3C1.1] is a mixed question of law and fact that is reviewed de novo."); United States v. Kushmaul, 147 F.3d 498, 500 (6th Cir.1998) (holding that whether the facts before it constituted "the brandishing of a weapon" under United States Sentencing Guidelines § 2B3.1(b) was a legal question to be reviewed de novo).

Robert Lee Johnson relies primarily on United States v. Honeycutt, 8 F.3d 785, 787 (11th Cir.1993), to support the proposition that a "clearly erroneous" standard of review should be applied. Robert Lee Johnson, 116 F.3d at 165. In Honeycutt, the Eleventh Circuit adopted the clearly erroneous standard of review without providing any explanation beyond a citation to a footnote in United States v. Scroggins, 880 F.2d 1204, 1206 n. 5 (11th Cir.1989). Scroggins, however, does not support the proposition that a clearly erroneous standard of review should be applied in determining whether United States Sentencing Guidelines § 2K1.4(a)(1) has been properly applied. To the contrary, Scroggins explains why a determination of this sort is a mixed question of law and fact: "[A] defendant can question whether a given set of facts, as found by the district court, triggers the application of a particular guideline. Such a challenge presents a mixed question of law and fact for appellate review." Scroggins, 880 F.2d at 1205 n. 5. Scroggins clearly distinguishes this situation from cases where a defendant claims that the district court made erroneous findings of fact, "and as a consequence applied the guidelines incorrectly." Id. Challenges of that type "present the reviewing court with a pure question of fact." Id.

Similarly, Latouf does not provide persuasive authority for its declaration that a trial court's determination that a defendant knowingly created a substantial risk of death or serious bodily injury "is a factual finding that this court reviews for clear error." Latouf, 132 F.3d at 331. Although Latouf cites United States v. Turner, 995 F.2d 1357 (6th Cir.1993), in support of this proposition, Turner applied a "due deference" standard "to the district court's application of the guidelines to the facts." Id. at 1365. The Turner court clearly distinguishes this "due deference" standard from a clearly erroneous standard. Id. ("Giving due deference to the district court's application of the guideline and reviewing its findings of fact under a clearly erroneous standard, Turner's final assignment of error must fail.")

This court has employed a two-step analysis in reviewing whether United States Sentencing Guidelines § 2K1.4(a)(1)(A) is applicable. First, we examine the district court's conclusion that the "defendant's actions created a substantial risk of death or serious bodily injury." Robert Lee Johnson, 116 F.3d at 165. We then examine the evidence supporting the conclusion that the risk was created "knowingly." Id. at 166. Although we believe that the application of United States Sentencing Guidelines § 2K1.4(a)(1)(A) involves a mixed question of law and fact, we will employ a clearly erroneous standard in accordance with the quoted language from Robert Lee Johnson and Latouf.

B. Substantial risk of injury

In considering whether a fire "created a substantial risk of death or serious bodily injury to any person other than a participant in the offense," the courts "have declined to develop any clear litmus test ...; instead, they have generally adopted ...