d may please the court the issue before this court is whether the district court clearly erred in finding that brewer in danger to place a public use within the meaning of section two k one forty eight properly performed guidelines analysis would come in with a higher number and that your clients are facing higher sentences so they understand they're taking that risk we discussed that risk your honor however  the district court did decline to find that to make that finding of attempt to destruction of a place of public use and instead found and in fact the probation office had made that recommendation in the pre sentence investigation report that that guideline would apply and the judge explicitly declined to make that finding your your clients understand that there is a risk that the attempt guideline is higher right and your argument house is that we should say all the district court found was attempt right that's what the district judge focused on you know if we say that and remand it just invites a higher g that but that's something that you're asking us to do you're clear my question is to your client understand your clients understand that that can happen my clients and i have discussed the risk of a higher guideline finding on remained your honor however and i don't think that the evidence supports attempted destruction of the place of public juice and i also don't think intended endangerment it does not mean potential or contingent endangerment in the actual endangerment which do you equate that with actual damage no i can't even choice seem to be arguing that it one point in your  no what i am arguing is that there must be a significant risk of substantial damage i think if you're going to talk about just risk of damage that is something that's much lower than in danger man and danger mid means a significant risk of a significant damage perhaps even a transformative damage if the species is in danger to its existence as it is endangered same with your health same with your life in this instance we're talking about a place of public use so i think the existence of the place and more of the public utility of the place has to be endangered meeting that it that this most southern most edge of the property on the far side of the dumpster enclosure is necessarily a place of public use looking at the guideline public use means those parts of any building land street a couple other things that are accessible are open to members of the park so there's how could you dispute that that that land that from the evidence in the record the public could get to sure the public qualifying for public use again there's there's no there's no fence to prevent the public from getting over to the far side of the dumpster but if you look at the exhibit that was attached to the brief campus and it also i think it's important d to note that the fire that was started it was merely the gas and styrofoam mixture that burned in the grass and you can see from the photograph and government's exhibit two at the sentencing hearing that there are  place where the grass is permed and it's clear from the photograph that the fire never spread so absent some mechanism that obeys the laws of physics and chemistry by which this fire could have spread to put it risk the structure or any or the rest of the campus i fail to see how what happened here and danger to place a public use also it seems to me your argument depends on interpellation the word substantial before the word part what i question is why that is a good thing to do well i also think that endangerment requires mike i wish you'd address my question which is why it is appropriate to insert the word substantial before the word part because your honor i think that endangerment the word in danger meant signif more than de minimus risk of minor damage if that was all that was that that happened here then that would be that the guidelines would would would be written that way if that was all that was necessary  i don't think you're following my question which says the guidelines are written that way they use the word part without any qualifier that says substantial or major or important or anything like that it just says part that's true but by that logic then a single blade of grass could be damaged and that could be enough to find and dangerous there has to be it for the word to have any meaning there has to be significant risk i drove to chicago for argument that that created some risk when i wouldn't don't believe that i was endangered by that a gardener is has a significant risk of being scratched by a foreigner but the gardeners  endangered by that forth so if if if the word in danger man is going to have any meaning in the guideline i think that it has to adopt its ordinary meaning problem possibly your honor i don't believe it i don't believe it is a problem in this case and here is why st of all what the guidelines require is actual endangerment and the district court did find actual endangerment the setting of the fire on a place of public use we just where did the district court find that there was actual endangerment of a part of the place rather than what the original plan of the danger on the set seen transcript at page one hundred and seventy the district court stated that brewer endangered this place a public use by setting a fire on the it it almost seems like given the exchange and the government at the end asking for clarification that there was a little bit of a moving target in both the government's position and what the court found that's correct judge at the sentencing hearing we were arguing in our argument was directed to the court that this was attempted destruction right certainly under the way this was argued i believe the court found almost this was a lesser included offense in other words that what brewer had intended to do and everything he did created a great risk to the synagogue property those things that he did to create the risk to the synagogue  property included bringing the items on to the synagogue property that would break windows that would explode in the senate dog that would cause a fire to spread  what he ended up and the government argues that that that is even under mr answers definition a substantial risk that qualifies as endangerment but he did more than that because there were lights and security cameras on the synagogue he went to another enclosure a structure and set a fire next to that which damaged the premises that damaged the land it damaged the enclosure  district court stated that brewer and there are three ellipses there so it's not everything the district court displayed a district court stated that brewer endangered this place of public use ellipses by setting fire on the premises and bringing with them materials to break out the windows of the synagogue blogs as well as a plan to throw napalm their only napalm are some great obama on to the building and put something on the floor of  senate so at least that's what keeps worrying me to talk about what the plan was rather than a finding of actual endangered i think the the courts finding of endangerment  it didn't the court go on to say just a little bit later that this is at appendix thirty five the fire in the grass endangered the public place i believe because i already knew the government was trying to get clarification yes the government did ask for clarification the court did add that it clearly did in danger the public place by damaging the public place that is the grass and certainly the structure that's on the ground but didn't in answer to your question judge i think the alternatives are a possible finding and certainly are supported by this record and by the case law particular the case the holmes case law that there are there is one of two ways for the court could find endangerment either actual damage or the risk of damage or destruction and that's what the fact it's it's the government's position that that would constitute even though this guidelines section does not require intent it just is whether there's a danger but i there is some case law in the th circuit that factors in intent to determine endangerment and so we have a plan to destroy the seneca we have not only a plan to destroy the s purchasing items that would destroy the set of dog we have driving fifty miles all the way to the property to destroy the set of dog and then we have been bringing all these things on to the property of the synagogue that creates an unacceptable risk of damage or destruction and under common definitions of endangered meant that would fit as in danger if they had just brought the items on to the property of the gasoline and other items and had the additional evidence about their intent to harm but hadn't started the fire is it the government's position that that would qualify for that guideline it would be your honor under the alternative definition of risk with this intent and with bringing all those items on to the property of the synagogue clearly it's attempted destruction that's what we argued in front of the district court we also believe that would qualify as endangered but we believe that's what judge pratt sort of call it as she sees it type ruling her the six hours of evidence about this plan and what actually happened and said this endangered a place of public use the senate god that is a very reasonable inference from this these facts i think is the only reasonable inference from thank you honor i think it's important to distinguish between contingent risk and actual risk bringing items that might have been used in the whether they could have been using affectively or not is is another question but bringing items that that might have been used under some original plan doesn't create actual endangerment and as far as the damage to the land it the one to have square foot of burnt grass it it seems to be a not that different than a golfer who doesn't pick up his divots after playing eighteen holes he's damaged about the same square feet of property but he's not endangered the golf course thank you