United States v. Sprouse , 58 F. App'x 985 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4329
GORDON FRANKLIN SPROUSE, II,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CR-01-30051)
Submitted: January 31, 2003
Decided: February 21, 2003
Before WILKINS, Chief Judge, and WILKINSON and
NIEMEYER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
David B. Smith, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Nancy S. Hea-
ley, Assistant United States Attorney, Charlottesville, Virginia, for
Appellee.
2 UNITED STATES v. SPROUSE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Gordon Franklin Sprouse, II, was convicted of two counts of will-
fully and without authority setting fire to timber and other vegegation
in a National Forest, in violation of 18 U.S.C. § 1855 (2000). He was
sentenced to a term of 97 months imprisonment. Sprouse appeals his
sentence, alleging that the district court plainly erred in finding that
he created a substantial risk of death or serious bodily injury when he
set a fire on May 14, 2001 (Count Two), and clearly erred when it
determined that he knowingly created such a risk when he set both
fires. Sprouse also contests the district court’s order that he pay resti-
tution in the amount of $229,502.57, on the ground that the district
court erred by including the cost of fire suppression for the April 9,
2001, fire. We affirm the sentence in part, vacate in part and remand
for resentencing and recalculation of the amount of restitution.
Sprouse, a firefighter with the Craigsville Volunteer Fire Depart-
ment, was convicted of setting fires in the George Washington
National Forest in Virginia on April 9 and May 14, 2001. The April
9 fire was the largest of a series of suspicious fires in the area during
2000 and 2001. Craigsville Fire Chief Wayne Martin, Sr., was over-
taken by the fire and was forced to take cover in a ditch, watering
himself with the firehose and breathing through the hose water while
the fire burned over and past him. A fire engine was damaged by the
heat, requiring $590 in repairs, and a truck belonging to one of the
firefighters was damaged. Although the May 14 fire was immediately
discovered by Forest Service agents conducting surveillance in the
area, the Forest Service had to use helicopters to control both fires.
The district court determined that base offense level 24 applied to
both counts under U.S. Sentencing Guidelines Manual
§ 2K1.4(a)(1)(A) (2000), because the offense "created a substantial
risk of death or serious bodily injury to any person other than a partic-
UNITED STATES v. SPROUSE 3
1
ipant in the offense, and that risk was created knowingly. . . ." The
court also made a two-level adjustment for abuse of a position of
trust, USSG § 3B1.3, based on Sprouse’s position and training as a
lieutenant in the Craigsville Fire Department, and ordered that he pay
$277,938.09 in restitution pursuant to 18 U.S.C. § 3663A (2000). This
amount included the value of the timber destroyed, the cost of repairs
to the damaged vehicles, and the cost to the Forest Service of fire sup-
pression for both fires.
On appeal, Sprouse first contends that the May 14 fire did not
create a substantial risk of death or serious injury. Because Sprouse
did not contest this issue in the district court, it is reviewed for plain
error. United States v. Olano, 507 U.S. 725, 732-37 (1993). Sprouse
contends that the district court plainly erred in accepting the probation
officer’s recommendation for base offense level 24 for Count Two,
the May 14 fire, because that fire was detected almost immediately
by a Forest Service officer and quickly controlled. Sprouse only
objected in the district court, with respect to both counts, that he had
not "knowingly" created a substantial risk of death or serious injury.
To that objection the probation officer responded that "[a]rson is an
act of violence and violence implies an inherent risk of injury and/or
death."
Sprouse now asserts that, if the probation officer’s view were cor-
rect, every arson offense would be sentenced under the enhanced base
offense levels of 24 or 20 provided in § 2K1.4(a)(1)(A) and (a)(2)(A).
The published cases addressing the application of subsection
(a)(1)(A) deal with arson of structures rather than forest fires, and
usually require the presence of one of two factors for an enhanced
base offense level: either "(1) the risk of a large explosion, or (2) the
presence of nearby residences." United States v. Georgia, 279 F.3d
384, 388 (6th Cir. 2002) (listing cases). In addition, although Applica-
tion Note 2 to § 2K1.4 provides that "substantial risk" includes the
risk to firefighters, law enforcement and emergency personnel, some
1
Subsection (a)(2)(A) provides for a base offense level of 20 when the
offense created the same risk but the defendant did not act "knowingly,"
and subsection (a)(3) provides a potentially lesser base offense level of
2 plus the offense level from § 2B1.1 (Theft, Property Destruction and
Fraud).
4 UNITED STATES v. SPROUSE
circuits have held that a substantial risk must include something
besides a response by firefighters to the fire, because otherwise every
fire would require the enhanced base offense level. Georgia, 279 F.3d
at 387-88; United States v. Honeycutt, 8 F.3d 785, 787-88 (11th Cir.
1993).
Although these cases give some support to Sprouse’s argument
because in this case there was no danger of explosion or damage to
any nearby buildings, we cannot say that the district court plainly
erred in applying base offense level 24 with respect to the May 14
fire. The fire was set in an area where water was not easily accessible.
The dry spring weather had created conditions favorable for fires to
spread and the April 9 fire had shown that a slight change in current
conditions could quickly result in a major fire that was beyond the
capability of the local fire department to control. That such a fire cre-
ated a substantial risk of death or serious bodily injury was demon-
strated by the April 9 fire where Chief Martin almost lost his life. The
volunteer firemen did not normally wear protective gear when
responding to a fire, making the danger of injury to them greater than
it would be for professional firefighters in urban areas. As a trained
firefighter who had participated in putting out the previous fires,
Sprouse could not help but realize that dangerous fire conditions pre-
vailed all during the spring and that any fire set in a remote area could
easily grow into an uncontrollable fire.
The May 14 fire was quickly controlled because the fire was fortu-
itously discovered and reported by the law enforcement officers doing
surveillance in the area. Even if Sprouse intended to report the fire
soon after he set it, there was no guarantee that the fire would stay
small and easily controllable. The "mere fortuity" that no injury
resulted from the defendant’s action does not foreclose a finding that
the arsonist knowingly created a substantial risk of death or serious
bodily injury. United States v. Ramey, 24 F.3d 602, 609 (4th Cir.
1994); see also United States v. Johnson, 116 F.3d 163, 165 (6th Cir.
1997) (degree of risk not assessed with benefit of hindsight, but as of
time fires set).
Next, Sprouse challenges the district court’s determination that he
knowingly created a substantial risk when he set both fires. Whether
the defendant "knowingly" created a substantial risk of death or seri-
UNITED STATES v. SPROUSE 5
ous bodily injury requiring the application of § 2K1.4(a)(1)(A) is a
question of fact reviewed for clear error. Georgia, 279 F.3d at 387.
Several circuits have defined "knowingly," as used in § 2K1.4(a)(1)
as being aware that it is "practically certain" that the criminal act will
result in a substantial risk of death or serious bodily injury. See
United States v. Johnson, 152 F.3d 553, 555-56 (6th Cir. 1998);
United States v. Altier, 91 F.3d 953, 957 (7th Cir. 1996); United
States v. Honeycutt, 8 F.3d 785, 787 (11th Cir. 1993); United States
v. Karlic, 997 F.2d 564, 569 (9th Cir. 1993).
Relying on Johnson, Honeycutt, and similar cases, Sprouse argues
that the evidence did not support a finding that he could have been
"practically certain" when he set either fire that it would create such
a risk. He cites the testimony of a Forest Service employee that
weather conditions changed after the April 9 fire began and that there
was no evidence about conditions on May 14 except for general dry-
ness. He puts forward the principle previously discussed that danger
must be assessed at the time the fire is set without benefit of hind-
sight. Johnson, 116 F.3d at 165; Honeycutt, 8 F.3d at 788. Sprouse
also argues that simply responding to a fire does not put firefighters
in substantial danger of death or serious bodily injury, and that the
arsonist must know that special circumstances are present. See, e.g.,
Georgia, 279 F.3d at 387-88. Both of Sprouse’s arguments are unper-
suasive for the reasons previously discussed. In addition, the govern-
ment’s evidence at trial included testimony that, before the April 9
fire, a Forest Service employee met with the Craigsville Fire Depart-
ment personnel, including Sprouse, to warn them about the ongoing
investigation of suspicious fires. He told them that the arson fires had
to be "stopped before someone dies." Given this warning and the
other factors previously discussed, we conclude that the district court
did not clearly err in finding that Sprouse knowingly created a sub-
stantial risk of death or seriously bodily injury when he subsequently
set the two fires for which he was convicted.
Next, Sprouse challenges the two-level adjustment he received
under § 3B1.3 for having "abused a position of public or private trust,
or used a special skill, in a manner that significantly facilitated the
commission or concealment of the offense." The district court’s deter-
mination that this adjustment applies is a factual question reviewed
for clear error. United States v. Gormley, 201 F.3d 290, 295 (4th Cir.
6 UNITED STATES v. SPROUSE
2000) (special skill); United States v. Akinkoye, 185 F.3d 192, 203
(4th Cir. 1999) (position of trust).
The district court found that Sprouse’s training as a firefighter and
his position as a second lieutenant in the fire department justified the
adjustment. Sprouse does not dispute that he held a position of public
trust or that he received training. He argues, however, that there was
no basis for a finding that either his position or his training helped
him to commit or conceal the offense because he simply used a match
to light the fires, he was not acting as a firefighter when he set the
fires, and there is no record of any action he took to conceal his
action, much less that he used his position to conceal his conduct. We
agree.
In its finding concerning the adjustment, the district court detailed
the training courses Sprouse had completed, noted that the community
placed its trust in its firefighters, found that Sprouse’s position of trust
was "strongly accelerated" when he was promoted to second lieuten-
ant, and found that his position was like that of the defendants in
United States v. Medrano, 241 F.3d 740, 746 (9th Cir.), cert. denied,
533 U.S. 963 (2001), and United States v. Brelsford, 982 F.2d 269,
273 (8th Cir. 1992). Medrano was a teller supervisor in a bank; Brels-
ford was a head teller. Both had responsibilities that enabled them to
embezzle money from the banks where they worked without detection
and both used their positions of trust to conceal their offenses. In
Sprouse’s case, the district court did not identify any way in which
Sprouse used his position to commit or to conceal his offense, nor is
any apparent on the limited record provided on appeal. The district
court also relied on the fact that Sprouse’s "knowledge of fighting
fires is greater than that of the ordinary citizen," but the court did not
explain how his training helped him to commit or conceal his arson.
The application of the § 3B1.3 adjustment requires some explanation
of exactly how a defendant’s training assisted his criminal conduct.
While it is possible that Sprouse used knowledge he had gained in his
training to decide where and how to set the fires, there was no evi-
dence before the court that the fires were set in a manner that demon-
strated any particular skill.
The government argues that the adjustment was warranted because
Sprouse abused a position of trust in that his position "shielded him
UNITED STATES v. SPROUSE 7
from suspicion." However, there is no evidence in the materials sub-
mitted on appeal that Sprouse’s position in the fire department helped
him to escape detection any longer than he would have if he had not
been a firefighter. Therefore, we conclude that the two-level adjust-
ment for abuse of a position of trust or use of special skills was
clearly erroneous.
Last, Sprouse contests the district court’s decision to include the
Forest Service’s costs for fire suppression in the amount of his restitu-
tion. Under the Mandatory Victims Restitution Act (MVRA), 18
U.S.C. §§ 3663A, 3664 (2000), restitution is required for certain
crimes, including offenses against property. 18 U.S.C.
§ 3663A(c)(A)(ii). When an offense results in damage to a victim’s
property or loss or destruction of the property, the sentencing court
must order the defendant to return the property or pay
(i) the greater of—
(I) the value of the property on the date of the damage,
loss, or destruction; or
(II) the value of the property on the date of sentencing;
less
(ii) the value (as of the date the property is returned) of any
part of the property that is returned.
18 U.S.C. § 3663A(b)(1)(B).2 We have held that:
[i]n cases involving the damage, loss, or destruction of prop-
erty, restitution must be limited to that which the statute
authorizes: return of the property, or payment of the proper-
ty’s value, either on the date of damage or loss or on the
date of sentencing, less the value of any part of the property
that is returned.
2
The same language was contained in the law in effect prior to enact-
ment of the MVRA, the Victim and Witness Protection Act of 1982
(VWPA), 18 U.S.C. § 3663(a) (2000), but the decision to order payment
of restitution for any offense was in the district court’s discretion.
8 UNITED STATES v. SPROUSE
United States v. Mullins, 971 F.2d 1138, 1147 (4th Cir. 1992). Mul-
lins determined that "an award of restitution under the VWPA cannot
include consequential damages such as attorney’s and investigators’
fees expended to recover the property." Id. Mullins looked to deci-
sions from other circuits, noting that the concern in United States v.
Arvanitis, 902 F.2d 489, 497 (7th Cir. 1990), and United States v.
Mitchell, 876 F.2d 1178, 1184 (5th Cir. 1989), was to give effect to
the statute’s plain meaning rather than avoiding recovery that is
excessive or for costs that are too remote from the offense. Mullins,
971 F.2d at 1148 n.8 (noting that United States v. Barany, 884 F.2d
1255, 1261 (9th Cir. 1989), observed that attorneys’ fees are "too
remote" to be included). The district court in this case was guided by
Mullins, but determined that fire suppression costs were direct costs
of Sprouse’s offense, rather than consequential damages, and thus
could be properly included in restitution.
On appeal, Sprouse relies principally on United States v. Newman,
6 F.3d 623, 630 (9th Cir. 1993). In Newman, the defendant, like
Sprouse, was convicted of setting a fire in a National Forest, and was
apparently sentenced under the 1988 Guideline Manual, the guide-
lines in effect on the date of his offense. See 6 F.3d at 629 n.1. New-
man’s base offense level was determined under § 2K1.4(c)(2), cross
referenced to § 2B1.3 (Property Damage or Destruction), which in
turn increased the base offense level for the amount of loss using the
table in § 2B1.1. Newman contested the inclusion of $55,173 in fire
suppression costs in the amount of loss used to calculate his base
offense level. The appeals court agreed that "loss," which was defined
in the commentary to § 2B1.1 as "the value of the property taken,
damaged, or destroyed," covered only the value of the vegetation
destroyed and that fire suppression costs were consequential costs. 6
F.3d at 630. Although Newman was ordered to pay restitution of
$55,173, he unaccountably did not contest the amount. The appeals
court therefore did not address whether the district court erred in
including suppression costs in the restitution order, but it noted the
fact that Newman had not raised the issue. Id. at 631. From this,
Sprouse argues that, if suppression costs are not consequential losses
under § 2B1.1, they may not be consequential losses for purposes of
restitution.
The government contends that Newman is distinguishable because
it dealt only with calculation of the base offense level, not the propri-
UNITED STATES v. SPROUSE 9
ety of the restitution amount, and cites a number of cases where legal
fees or investigator’s fees have been held to be direct costs properly
recoverable in restitution because such costs were "a direct and fore-
seeable result" of the offense. United States v. Cummings, 281 F.3d
1046, 1052 (9th Cir.) (parental kidnapping), cert. denied, 123 S. Ct.
179 (2002); see also United States v. Akbani, 151 F.3d 774, 779-80
(8th Cir. 1998) (check-kiting scheme). These cases do not involve
damage to, loss of, or destruction of property. Akbani makes just this
distinction, holding that "there is no blanket prohibition in the VWPA
against the inclusion of attorneys’ fees in the calculation of a restitu-
tion amount for offenses that do not result in damage to or loss or
destruction of property." 151 F.3d at 780.
The government also cites United States v. Sharp, 927 F.2d 170,
174 (4th Cir. 1991), which affirmed restitution for the cost of repairs
and replacement of damaged equipment resulting from a bombing at
a coal mine. The government equates this case with Sharp because
both involve damage to property. However, we are not convinced that
fire suppression costs are analogous to costs for repair and replace-
ment of equipment.
We conclude that, in the absence of authority to the contrary, the
plain meaning of § 3663A controls. Therefore, we find that the dis-
trict court erred in ordering Sprouse to pay restitution for the cost of
fire suppression. Consequently, we are constrained to vacate the resti-
tution order. On remand, the district court should recalculate the resti-
tution amount exclusive of fire suppression costs.
We therefore affirm the sentence in part, but vacate it in part and
remand for resentencing in accord with this opinion. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED