U.S. v. Golden

• Decision Date: 28 January 1992
• Docket Number: No. 90-3465,90-3465
• Citation: 954 F.2d 1413
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry GOLDEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1413

954 F.2d 1413

UNITED STATES of America, Plaintiff-Appellee, v. Larry GOLDEN, Defendant-Appellant.

No. 90-3465.

United States Court of Appeals Seventh Circuit.

Argued Sept. 10, 1991.

Decided Jan. 28, 1992.

Kaarina Salovaara (argued), Office of the U.S. Atty., Criminal Div., Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Richard H. McLeese, Decker & Associates, Chicago, Ill., for defendant-appellant.

Before WOOD, Jr., POSNER and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Larry Golden was indicted with one count of conspiracy to commit arson in violation of 18 U.S.C. § 371, and two counts of arson in violation of 18 U.S.C. § 844. He pled guilty to the conspiracy charge, and was subsequently sentenced to 41 months imprisonment with a three year term of supervised release. Golden now appeals from that sentence. For the following reasons, we affirm.

I.

Lee Arthur McCorker and his son, James Earl McCorker, owned and operated Mr. Lee's Lounge, a liquor store and part-time nightclub located on Chicago's south side. In 1987, Mr. Lee's Lounge began losing business to the Rainbow Market, another retail food and liquor store which opened across the street. Fearing the loss of his local patronage, Lee McCorker decided to take steps to drive the Rainbow Market out of his neighborhood once and for all.

Larry Golden was an auto mechanic who periodically did electrical work at Mr. Lee's Lounge. In January 1989, while Golden was completing some repairs in the Lounge, Lee McCorker approached Golden and asked him if he would set fire to the Rainbow Market for several hundred dollars. Golden agreed to do so. Shortly thereafter on January 23, 1989, at approximately 2:00 A.M., Golden and a man known only as "Tennessee" climbed onto the roof of the Rainbow Market and poured gasoline down an air vent and into the store. Tennessee then dropped a few matches down the vent, and after confirming that a fire had started, both men fled the area. Neither made any efforts to determine whether anyone was still in the building. ¹

The ensuing fire caused little damage. Although a part of the roof near a neighboring home was set aflame, fire fighters arrived at the scene quickly enough to contain the blaze before any extensive damage occurred. No civilian or fire fighter injuries were reported.

Lee McCorker, not satisfied with the results of the January 23 fire, recruited Golden to make a second attempt for the sum of three hundred dollars. Once again, Golden agreed. On February 4, 1989, at approximately 4:00 A.M., Golden returned to the Rainbow Market, accompanied by Tennessee and Mecella Walker, one of McCorker's employees. While Walker remained on the street to serve as a lookout, Golden and Tennessee poured gasoline down a hole in the roof where the first fire had burned. Golden also prepared several "Molotov cocktails," filling empty glass bottles with gasoline and a rag wick. They then ignited the "cocktails" and tossed them into the market. The store rapidly became engulfed in flame.

The destructive force of this second fire was considerable. Although the flames were extinguished by the store's sprinkling system before any structural damage occurred, the resulting smoke damaged the entire inventory and most of the business equipment, including several freezers. No one, however, was injured.

Lee McCorker paid Golden his predetermined "fee" on the morning following each fire. Golden in turn distributed a small portion of that payment to both Tennessee and Walker.

Shortly after the second fire, the police commenced an undercover investigation which culminated in Golden's arrest on April 13, 1989. Golden was subsequently indicted on one count of conspiracy to destroy the Rainbow Market by arson in violation of 18 U.S.C. § 371, and two counts of arson in violation of 18 U.S.C. § 844(i). On March 7, 1990, he pled guilty to the § 371 conspiracy count. The remaining charges against him were subsequently dismissed.

On October 23, 1990, the district court sentenced Golden to 41 months imprisonment, the minimum sentence in the applicable Sentencing Guidelines range. In reaching this conclusion, the court first set the base level for Golden's offense at six, subject to enhancement. ² Pursuant to Guidelines § 2K1.4, the court then increased that base offense by 14 level on the grounds that Golden "recklessly endangered the safety of another." ³ The court reasoned as follows:

The defendants in this case conspired, and participated in the arson of a building in an urban area. Each and every participant in the conspiracy recognized that fires kill people, and that a fire which starts one place can spread and burn down other buildings. Further, no participant in this conspiracy bothered to verify that no one was in the Rainbow Market by calling the store before it was set on fire. The defendants acted with little regard for whether their conduct would endanger others, and that is exactly the sort of conduct that "recklessness" encompasses.

The district court next determined that Golden's guilty plea should be adjusted upwards "as if the defendant had been convicted of a separate count of conspiracy for each offense that [he] conspired to commit," and that those two convictions should not be grouped under Guidelines § 3D1.2. In so ruling, the district court relied on Guidelines § 1B1.2, which provides that "[a] conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted of a separate count of conspiracy for each offense that the defendant conspired to commit." Although § 1B1.2 was adopted after the date of Golden's offense, the district court dismissed Golden's ex post facto concerns on the grounds that the provision was not "substantive," but rather only explained the intentions of the Guidelines drafters. Accordingly, Golden's offense level was adjusted upwards by two more levels.

Finally, the district found that Golden was an "organizer" within the meaning of Guidelines § 3B1.1(c), warranting another two level increase--and thereby bringing his total offense level to 24. This appeal followed.

II. Enhancement for Reckless Endangerment

Golden first challenges the 14 level enhancement under Guidelines § 2K1.4, arguing that the district court did not find, nor was there any evidence to suggest, that the fires started by Golden actually endangered anyone. To support this contention, Golden asserts that there was in fact no person in the vicinity of the Rainbow Market at the time of either fire. Absent any evidence to the contrary, Golden concludes that the district court committed reversible error by finding that he "recklessly endangered the safety of another" under § 2K1.4.

We review challenges to a district court's sentencing determination under a deferential standard. United States v. Boyer, 931 F.2d 1201, 1203-04 (7th Cir.1991). To the extent that the sentencing determination turns on question of fact, the district court's findings will not be disturbed unless we are left "with the definite and firm conviction that a mistake has been committed." Id. at 1204; United States v. Vopravil, 891 F.2d 155, 157 (7th Cir.1989); United States v. Herrera, 878 F.2d 997, 1000 (7th Cir.1989). This deferential standard of review similarly applies to the district court's decision to adjust a base offense level under Guidelines § 2K1.4. United States v. Medeiros, 897 F.2d 13, 17 (1st Cir.1990); see also United States v. Wilson, 927 F.2d 1188, 1190 (11th Cir.1991) (in reviewing a challenge to an enhancement under § 2K1.4, the appellate court "will not disturb the district court's factual findings as to the extent of the danger to others caused by appellant's actions unless clearly erroneous"); United States v. Bos, 917 F.2d 1178, 1182 (9th Cir.1990) (district court's fact findings relating to sentence enhancement pursuant to § 2K1.4 were neither conclusory nor clearly erroneous). By contrast, a question involving the interpretation of a Guidelines term is a matter of law subject to de novo review. Boyer, 931 F.2d at 1204; United States v. Teta, 918 F.2d 1329, 1332 (7th Cir.1990).

A review of the record fully supports the district court's decision to enhance Golden's sentence under § 2K1.4. On two separate occasions, Golden and others attempted to burn down the Rainbow Market with dangerous combustibles--either free-flowing gasoline and/or Molotov cocktails--designed to ignite and spread fire quickly. At neither time did Golden or his co-conspirators make any efforts to determine if anyone was in the store before setting it ablaze. Nor did they pay any heed to the danger of igniting the neighboring homes. In short, Golden's sole intention was that the Rainbow Market be completely destroyed in the flames; collateral damage and injury were, apparently, of little or no consequence.

Golden's assertion that no one was "actually" endangered by either fire grossly mischaracterizes the nature of his offense. In this day and age, the arson of an urban structure--whether residential or commercial--is virtually a per se reckless endangerment of others. As the district court pointed out, Golden's claim that he was not personally aware that his conduct might endanger other people is "incredible." 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 risk of injury to additional civilians and fire fighters. In light of these everyday realities, Golden's claim of ignorance rings hollow.

Of course, the arson of an urban building which is altogether isolated may not present the same degree of danger to neighboring structures. However, such is not ...