USA v. Clyde Holmes, Jr.

Filing

FILED OPINION (ALEX KOZINSKI, ANDREW J. KLEINFELD and SANDRA S. IKUTA) REVERSED AND REMANDED. Judge: AK Authoring, Judge: AJK Concurring, FILED AND ENTERED JUDGMENT. [7787503]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLYDE DEWAYNE HOLMES, JR.,
Defendant-Appellant.





No. 09-30211
D.C. No.
1:08-CR-00147BLW-1
OPINION

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
May 5, 2010—Portland, Oregon
Filed June 16, 2011
Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld
and Sandra S. Ikuta, Circuit Judges.
Opinion by Chief Judge Kozinski;
Concurrence by Judge Kleinfeld

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COUNSEL
Jay J. Kiiha (argued), Capitol Law Group, PLLC, Boise,
Idaho, for the defendant-appellant.
Thomas E. Moss, United States Attorney, Monte J. Stiles and
Syrena C. Hargrove (argued), Assistant United States Attorneys, Boise, Idaho, for the plaintiff-appellee.

OPINION
KOZINSKI, Chief Judge:
What does it mean to destroy land?
Facts
A jury convicted Clyde DeWayne Holmes, Jr., a volunteer
fireman, on six counts of setting public lands afire, in violation of 18 U.S.C. § 1855. He burned about a thousand acres

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owned by the Bureau of Land Management (BLM) that were
covered by sagebrush and other vegetation. At sentencing,
Holmes argued that his offense “did not include the destruction or attempted destruction of a place of public use,” which
carries a base offense level of 24. See U.S.S.G. § 2K1.4(a)(1).
The district court rejected this argument and sentenced
Holmes to 72 months. We review the district court’s interpretation of the Guidelines de novo, its application of the Guidelines to the facts for abuse of discretion and its factual
findings for clear error. See United States v. Cantrell, 433
F.3d 1269, 1279 (9th Cir. 2006).
1. Holmes argues that he didn’t destroy or attempt to
destroy a place of public use, but he waived the issue by conceding it below: “Yeah, and like I said, I don’t disagree that
it’s a place of public use. Obviously it’s open to the public but
it just seems that . . . [the arson] endangered a place of public
use . . . .” We decline to address it. See Fed. Sav. & Loan Ins.
Corp. v. Butler, 904 F.2d 505, 509 (9th Cir. 1990).
2. Holmes argues that the burning of grass and sagebrush
didn’t destroy the land because there’s 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.” Rather, the land’s “ability and use was only limited
for a short period of time.”
The Guidelines don’t explain what it means to destroy
something, but we have a pretty good idea from common
usage. Drop a Ming vase, and it’s kaput. Spill some milk on
your computer, and you’ll have something to cry over. And
Rover will surely destroy your Jimmy Choos if you give him
half a chance. But it’s hard to think of examples where land
is destroyed. A large explosion might dissipate some of the
dirt and leave a crater; dumping toxic waste might render land
uninhabitable for a long while. Yet nothing is ever truly
destroyed; it merely changes form. E = mc2 and all that. The

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question is, when is the change in form sufficient for us to
refer to it as destruction?
[1] To begin with, the damage needn’t be total or irreversible. Most things that are destroyed can be made whole by the
application of sufficient effort and resources. For example, a
crashed car can often be restored to “like new” condition.
Nevertheless, we think of a car as “totaled” when the cost of
repair exceeds its pre-accident market value. Even if the
owner decides to rebuild anyway—perhaps as a hobby or for
sentimental reasons—we’d still consider the car to have been
destroyed.
[2] Destruction also need not eliminate every possible use
of the object. Cf. United States v. Causby, 328 U.S. 256,
258-59, 262 (1946) (government’s destruction of ability to
use land to raise chickens held to be a taking, even though
“enjoyment and use of the land [was] not completely
destroyed”). A bricked cell phone might make a nifty paperweight, but it’s useless to call your sweetheart. This is particularly true of land, which will generally support many potential
uses. For example, land rendered unfit for human habitation
by toxic waste may serve as a swell ordnance target range;
nevertheless, we reckon the land’s been destroyed.
[3] While the line between damage and destruction is not
a precise one, we consider something to have been destroyed
if it is rendered incapable of being used for one or more of its
principal purposes, and can’t be restored swiftly and relatively
cheaply. In the case of land, we consider it destroyed if its
aesthetic, environmental, recreational, economic or cultural
uses have been eliminated for a significant period of time,
generally meaning more than a year. Cf. Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (“Aesthetic and environmental
well-being, like economic well-being, are important ingredients of the quality of life in our society . . . .”); Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 184 (2000) (harm to “recreational, aesthetic, and eco-

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nomic interests” is a cognizable injury for purposes of standing); 16 U.S.C. § 470cc(c) (recognizing that archeological
sites may have religious or cultural importance to Indian
tribes).
[4] Finally, when we talk about the destruction of land, we
don’t just mean the earth’s crust. We also refer to the vegetative growth, bodies of water, rock formations and fossils that
are found on the earth. See State v. Coffee, 556 P.2d 1185,
1193 (Idaho 1976) (“Normally, ‘land’ means a property right
and includes all things physical upon the earth, such as soil,
trees, and grass.”). Burning a forest destroys the land, not just
the trees. Vegetation can grow back quickly after a fire, or it
may take years or decades. Cf. Amoco Prod. Co. v. Village of
Gambell, 480 U.S. 531, 545 (1987) (“Environmental injury,
by its nature, can seldom be adequately remedied by money
damages and is often permanent or at least of long duration,
i.e., irreparable.”). As a general matter, if land covered in vegetation is likely to return to its prior condition without human
intervention within a year, we would not consider the land to
have been destroyed. But if it will likely take substantially
more than a year for the vegetation to recover, or require significant human intervention, then the land is deemed to have
been destroyed.
[5] 3. The district court correctly interpreted section
2K1.4(a)(1) to require that the land here suffer more than
short-term damage, but less than complete obliteration: “[This
is] not the situation where there’s a wildfire and then the next
year everything is back just the way it was. It sometimes takes
decades for the land to restore itself and sometimes it never
happens because of cheatgrass infestation which usually follows right on the heels of a wildfire.” If this is true, then the
land would clearly have been destroyed under the principles
outlined above. But the learned district judge didn’t state the
basis for his finding, and we see no evidence in the record to
support it. The court went on to say: “I deal with these kinds
of cases involving impact on the environment all the time.

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There’s a macrobiotic crust that is devastated by the wildfire.
There’s just—there’s a lot implicate [sic]—that you can’t see.
The grass may be growing but it’s not the same.” Yet
nowhere in the record was there any evidence that the fires
caused any damage to the macrobiotic crust or any cheatgrass
infestation. The government did introduce some potentially
relevant evidence, including a statement of loss of wildlife
habitat and shooting areas and restitution figures for the BLM
land. The district court didn’t mention this evidence when it
applied the higher base offense level, and we don’t see an
obvious connection between the evidence and the district
court’s decision.
On appeal, the government argues in support of the district
court’s theory that the fires destroyed the macrobiotic crust,
but that can’t make up for its earlier failure to present evidence to that effect. This isn’t the sort of common knowledge
district judges may rely on in sending someone to prison.
Rather, the extent of damage to BLM land is a factual determination as to which there needs to be evidence, quite possibly from experts. The government presented no evidence to
support the district court’s findings, and Holmes was not
given the opportunity to present evidence on how his fires
affected the BLM land.
For similar reasons, we can’t conclude that Holmes only
“endangered” the land, which would result in a lower base
offense level than if he destroyed it. See U.S.S.G.
§ 2K1.4(a)(2). Endangering means putting the property at risk
but resulting in no actual damage, or damage that is less than
destruction. Cf. Price v. U.S. Navy, 39 F.3d 1011, 1019 (9th
Cir. 1994). If the district court on remand finds that the damage to the land doesn’t amount to destruction, then it will
probably determine that Holmes endangered the land.
***
[6] We vacate Holmes’s sentence and remand so that the
district court can impose a sentence that isn’t infected by pro-

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cedural error. See United States v. Carty, 520 F.3d 984, 993
(9th Cir. 2008) (en banc).
REVERSED and REMANDED.

KLEINFELD, Circuit Judge, concurring:
I concur in the result. Although I agree that the sentence
should be vacated and the case remanded for resentencing, my
reasoning, and the consequence on remand, differ from the
majority’s.
Holmes set seven different fires over a period of around six
weeks. All were on unoccupied land, and fortunately all were
put out without injury to anyone. The restitution figure is
$155,881.36, most of that for the $132,881.36 the BLM spent
on firefighting, the rest for $10,325 for what the volunteer fire
department spent and $12,675 for what the rod and gun club
had to spend to reseed its acreage. One of the fires burned private land, for which the owner did not ask for any restitution.
Several factors added to Holmes’s blameworthiness. He
was a volunteer firefighter, and although no special expertise
contributed to or was needed to set the fires, people expect
firefighters to fight fires, not start them. And he lied when he
was caught, sending the authorities down several paths that
might have led to charges against innocent people. He gave
truck descriptions, license plate numbers, and other identifiers
that could have landed someone innocent in federal prison
instead of himself. Fortunately, he literally left tracks, tire
tracks, pointing to him, reported the fires anonymously from
locations establishing that he was probably the person who
called 911, his truck was seen by a BLM officer leaving the
area where the fires had been reported only thirty seconds
before a new fire was discovered, and he set the fires in locations of the fires all within a six mile circle and at times sug-

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gesting that he set them all in the afternoon after he got off
work and before he got home for dinner.
The only issue before us is whether the district court erred
by applying the more aggravated public arson guideline
range. Holmes’s crimes were all for setting public land on
fire, under 18 U.S.C. § 1855. That statute provides for imprisonment for “not more than five years” for willfully setting on
fire timber, underbrush or other inflammable material on public lands.1 Since he set the six fires on six different dates,
Holmes committed six separate crimes, so “grouping” was
applied, leading to his six-year prison sentence.
The applicable sentencing guideline is a broad one, for
“Arson; Property Damage by Use of Explosives,” embracing
numerous statutes.2 Timothy McVeigh blowing up the Okla1

The statute provides, in full:
Whoever, willfully and without authority, sets on fire any timber,
underbrush, or grass or other inflammable material upon the public domain or upon any lands owned or leased by or under the
partial, concurrent, or exclusive jurisdiction of the United States,
or under contract for purchase or for the acquisition of which
condemnation proceedings have been instituted, or upon any
Indian reservation or lands belonging to or occupied by any tribe
or group of Indians under authority of the United States, or upon
any Indian allotment while the title to the same shall be held in
trust by the Government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall
be fined under this title or imprisoned not more than five years,
or both.
This section shall not apply in the case of a fire set by an allottee
in the reasonable exercise of his proprietary rights in the allotment.

18 U.S.C. § 1855.
2
At the time, it embraced the following: 18 U.S.C. §§ 32(a), (b), 33, 37,
81, 112(a), 844(f), (h) (only in the case of an offense committed prior to
November 18, 1988), (i), 970(a), 1153, 1362, 1363, 1364, 1855,
1992(a)(1), (a)(2), (a)(4), 2275, 2280, 2281, 2282A, 2282B, 2291, 2332a,
2332f; 49 U.S.C. § 60123(b).

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homa City Federal Building, Ramzi Yousef blowing up the
World Trade Center in 1993, Ahmed Ressam attempting to
blow up Los Angeles International Airport, and Clyde
Holmes Jr. burning brush on government land all fall within
the same guideline, though if people die, additional guidelines
apply. The guideline has four sections with varying base
offender levels; (1) 24, for the worst sort of bombing or arson,
that knowingly creates substantial risk to persons or destroys
such public facilities as airports, planes and ships; (2) 20, for
arson creating a substantial risk to persons (but not knowingly) or blowing up or burning down a less important government building or place of public use; (3) 16, for destroying
a lighthouse or other aid to maritime navigation; and (4), 2
plus the offense level for theft, property destruction and fraud.
Holmes was assigned a 24, and argues that he should not have
been. Since he argues for no less than 20, we need not decide
whether any more lenient offense level might have been
appropriate. All that is before us is whether he was properly
assigned a base offense level of 24, the highest.
In my view, that assignment was error. As bad as his crime
was, it was not in the same class as blowing up the terminal
at LAX,3 or blowing up a truck in the basement of the World
Trade Center in hopes of accomplishing what Al Qaeda subsequently succeeded at in 2001, or blowing up the Federal
Building in Oklahoma City. That is the class designated by
the guideline for the 24 level.
The 24 level is reserved for arson and bombing that knowingly created a substantial risk of death or serious bodily
injury to persons, or involved destruction or attempted
destruction of “a dwelling, an airport, an aircraft, a mass
transportation facility, a mass transportation vehicle, a maritime facility, a vessel, or a vessel’s cargo, a public transportation system, a state or government facility, an infrastructure
3

Cf. United States v. Ressam, 629 F.3d 793, 805 (9th Cir. 2010).

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facility, or a place of public use.”4 The 20 level, still quite
high as sentencing guidelines go, is for arson and bombing
that created a substantial risk of death or serious bodily injury
to persons but without the element that “the risk was created
knowingly,” or the destruction was for a structure other than
the ones listed in the level 24 guideline, or endangered one of
those facilities without destroying or attempting to destroy it.
Of course, the level is increased greatly if anyone is injured
or killed.5
4

U.S.S.G. § 2K1.4(a)(1) (2007).
The relevant sentencing guideline provides, in full:

5

§ 2K1.4. Arson; Property Damage by Use of Explosives
(a) Base Offense Level (Apply the Greatest):
(1) 24, if the offense (A) 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;
or (B) involved the destruction or attempted destruction of
a dwelling, an airport, an aircraft, a mass transportation
facility, a mass transportation vehicle, a maritime facility,
a vessel, or a vessel’s cargo, a public transportation system, a state or government facility, an infrastructure facility, or a place of public use;
(2) 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 (i) a dwelling, or (ii) an airport, an aircraft, a mass transportation
facility, a mass transportation vehicle, a maritime facility,
a vessel, or a vessel’s cargo, a public transportation system, a state or government facility, an infrastructure facility, or a place of public use; or (C) endangered (i) a
dwelling, (ii) a structure other than a dwelling, or (iii) an
airport, an aircraft, a mass transportation facility, a mass
transportation vehicle, a maritime facility, a vessel, or a
vessel’s cargo, a public transportation system, a state or
government facility, an infrastructure facility, or a place of
public use;
(3) 16, if the offense involved the destruction of or tampering with aids to maritime navigation; or

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Our task is to construe “place of public use” in the highest
level guideline subsection. The majority opinion errs because
of a mistaken choice of methodology, looking only at the isolated phrase, without considering its context. Statutory construction,6 like most interpretation of language, has to take account
of context. The traditional legal terms for taking account of
context are ejusdem generis and noscitur a sociis. “Though
lawyers do not learn as much Latin as they used to, there is
nothing esoteric about listing a series of examples and considering whether something else is like things in the list.”7 Ejusdem generis, literally “things of the same kind,” means
merely that we determine the meaning of a general term by
reference to the others in the list. Noscitur a sociis, literally,
“it is known from its associates,” means merely that we deter(4) 2 plus the offense level from § 2B1.1 (Theft, Property
Destruction, and Fraud).
(b) Specific Offense Characteristics
(1) If the offense was committed to conceal another
offense, increase by 2 levels.
(2) If the base offense level is not determined under (a)(4),
and the offense occurred on a national cemetery, increase
by 2 levels.
(c) Cross Reference
(1) If death resulted, or the offense was intended to cause
death or serious bodily injury, apply the most analogous
guideline from Chapter Two, Part A (Offenses Against the
Person) if the resulting offense level is greater than that
determined above.
U.S.S.G. § 2K1.4 (2007).
6
The guidelines are construed similarly to statutes. See United States v.
Treadwell, 593 F.3d 990, 1006 (9th Cir. 2010) (“We use traditional rules
of statutory construction when interpreting the text of the Guidelines. This
includes traditional canons of statutory construction.” (citations omitted)).
7
Portland 76 Auto/Truck Plaza, Inc. v. Union Oil Co., 153 F.3d 938,
945 (9th Cir. 1998).

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mine the meaning of a general term by reference to those with
which it is associated.
People use the principles of ejusdem generis and noscitur
a sociis all the time, to understand ordinary speech, without
realizing that they are doing so, just as they do not realize that
they are speaking prose. When the waiter says “would you
like a cocktail? wine? anything else?,” we know he is asking
for a drink order, not a dessert order, and not whether you
would like a new car, even though a new car would fall within
the “anything else” category were the phrase considered
according to dictionary meaning without regard to context.
And when the grade school boy tells his mother “we have to
bring a ruler, a pencil, paper, and other stuff to school tomorrow,” we know he is talking about school supplies, not his pet
puppy. Watching an old movie recently, I saw the words “roll
film” on the screen, and quickly realized they meant “start the
movie,” not “120 film for cameras.” The only way to tell that
“roll” was a verb, not an adjective, was context.
Context requires that we consider “place of public use” in
the context of “a dwelling, an airport, an aircraft, a mass
transportation facility, a mass transportation vehicle, a maritime facility, a vessel, or a vessel’s cargo, a public transportation system, a state or government facility, [and] an
infrastructure facility,” just as we consider the waiter’s “anything else” in the context of drink orders. The general catchall phrase means something of the same sort as the specific
phrases. And that is so even though “place of public use”
means, construed in isolation, anyplace at all where the public
is not excluded, just as “anything else” means anything at all.
So let us look at the context, filling in concrete examples
for generalities. Burning down someone’s house necessarily
deprives the victim of a place to live and property much of
which, such as family photographs, cannot be replaced, and
creates a very high risk of death. Burning down an airport is
likely to kill people, and certain to create great disruption for

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travel and commerce; people will miss weddings and funerals
as well as job interviews and sales opportunities, businesses
will fail, and many lives will be disrupted. Blowing up an airplane or bus, as terrorists do in Israel, is a pretty far cry from
burning brush on empty public land. All these specific categories appear to be some sort of structure, where the structure
itself is exceedingly important to people, and destruction is
exceedingly dangerous. Burning brush on bare land just does
not fit. It can indeed be very dangerous, especially to firefighters, but it is not as likely to kill people as, say, blowing
up a government building or a train.
The guideline for level 20 applies to “a structure other
than” that list. The phrase “or a place of public use” is in both
the 24 and the 20 guideline. The language of the 20 guideline
has three strong implications for the case before us. First, by
referring to “structure other than,” the language for level 20
assumes that all concrete examples in the higher guideline are
“structure[s].” A “place of public use” for level 24 is probably, therefore, used by the Sentencing Commissioners, to
mean a structure. Second, the language implies that burning
down or blowing up public facilities other than airports, airplanes, buses, trains, and so forth, should be punished a little
less severely than burning down or blowing up structures in
that specially designated class. Third, use of the identical
catch-all phrase “place of public use” in both guidelines suggests that the commissioners intended it as a catch-all for
things like the preceding concrete terms, not something that
trumps even the Pentagon and the White House in how protected it is.
The guideline under which Holmes was sentenced does not
address environmental crimes, so it does not much matter for
the public arson guideline whether the brush will grow back
in a year, or whether the whistle pigs will return promptly, or
whether the ground covering after the fire will differ in some
respect. No doubt things will be different, just as one can
never set foot in the same river twice, and land constantly

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changes from natural occurrences including lightening-caused
fires. There are numerous guidelines for crimes against the
environment, with offense levels ranging from 6 for putting
hazardous devices on federal lands,8 or 8 for mishandling hazardous substances,9 or 10 for tampering with the transportation of hazardous substances,10 to 24, for knowing
endangerment resulting from mishandling of hazardous substances.11 Though the majority opinion and the district court
have discussed this case as though it were charged and sentenced as an environmental crime, it was not, and none of the
environmental crime statutes or guidelines were used. As for
the risk that a firefighter might be injured or killed fighting
Holmes’s fires, the lower level 20 arson and bombing guideline applies where the fire “created a substantial risk of death
or bodily injury.”
Blowing up a government building, an airport, or a bus or
train would be a 24. Under the majority’s interpretation, so
would setting off a cherry bomb in a BLM trailhead suggestion box. That is not a sensible reading of the statute.12
8

18 U.S.C. § 1864; see U.S.S.G. § 2Q1.6(a)(4) (2007).
42 U.S.C. § 6928(d); see U.S.S.G. § 2Q1.2(a).
10
49 U.S.C. § 5124; see U.S.S.G. § 2Q1.2(b)(7).
11
42 U.S.C. § 6928(e); see U.S.S.G. § 2Q1.1(a).
12
See United States v. 1996 Freightliner Fld., 634 F.3d 1113, 1117 &
n.10 (9th Cir. 2011) (citing 2 Henry M. Hart Jr. & Albert M. Sacks, The
Legal Process 1414-15 (tent. ed. 1958) (“In determining the more immediate purpose which ought to be attributed to a statute, and to any subordinate provision of it which may be involved, a court should try to put itself
in imagination in the position of the legislature which enacted the measure
. . . . It should assume, unless the contrary unmistakably appears, that the
legislature was made up of reasonable persons pursuing reasonable purposes reasonably . . . . The court should then proceed to [ask] . . . Why
would reasonable men, confronted with the law as it was, have enacted
this new law to replace it? . . . The most reliable guides to an answer will
be found in the instances of unquestioned application of the statute. Even
in the case of a new statute there almost invariably are such instances, in
which, because of the perfect fit of words and context, the meaning seems
unmistakable . . . . What is crucial here is the realization that law is being
made, and that law is not supposed to be irrational.”)).
9