# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued March 3, 2020
Decided March 18, 2020

Before

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 19-2095

UNITED STATES OF AMERICA, Plaintiff-Appellee

,

v

.

NOLAN BREWER, Defendant-Appellant

. Appeal from the United States District
Court for the Southern District of Indiana, Indianapolis Division.

No. 1:18-cr-00286-001

Tanya Walton Pratt,
J udge

.

O R D E R

Nolan Brewer and his then-wife spray pain ted swastikas and iron crosses onto a synagogue’s dumpster enclosure. Next to it , he set fire to an area of grass on the property using a homemade mixture of gasoline and styrofoam. Brewer pleaded guilty to conspiring to injure, oppress, threaten , and intimidate the synagogue’s congregants because they were Jewish, in violation of their right to hold property free of racial

discrimination. See 18 U.S.C. § 241. On appeal, he ch allenges the district court’s application of a base offense level of 20 under the arson sent encing guideline,

see U.S.S.G. § 2K1.4(a)(2)(C), because he “end angered ... a place of public use.” Because NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 19-2095 Page 2

the district court did not clearly err in conc luding that the record evidence supported the application of this guideline, we affirm.

In July 2018, Brewer and his then-wife set out to terrorize and intimidate the Jewish community in Carmel, Indiana. First, they spray painted swastikas and iron crosses onto a dumpster enclosure that sat at the edge of a synagogue’s property, set off by a paved service drive. The couple then de cided to illuminate the graffiti with a fire. On two patches of grass (directly next to an d a few feet away from the enclosure) they dumped a mixture of gasoline and melted s tyrofoam (homemade “napalm”). They then set the mixture ablaze. The small patches of grass in contact with the mixture burned, and the dumpster enclosure was charred. The couple also had with them, but did not use, homemade “bombs” (foil-filled beverag e bottles), which, they thought, would explode from pressure once drain cleaner wa s poured inside. They also had pieces of spark plugs, which they believed could be thrown at and shatter a glass window.

About two weeks later, FBI agents—after re ceiving a tip from one of Brewer’s co-workers—stopped Brewer, searched his c ar, and interviewed him. In his car, the agents found spray paint, bandanas, rubber gloves, ceramic spark plug parts, beverage bottles containing pieces of foil, and two bo ttles of drain cleaner. During the interview,

Brewer told the FBI that his wife had co mmunicated online with a man named Peter, who selected the synagogue and told them what to do. Peter instructed them to bring the spark plugs to “bust the windows ... to tr y and get inside.” Peter also proposed that the couple place a drain-cleaner “bomb” in the synagogue and “toss the napalm on top of it ... and then light it and run” so thatwhen the “bomb” went off, “it would set the napalm everywhere.”

Brewer, however, denied that he ever in tended to follow through with Peter’s plans. Brewer told the FBI that on their wa y to the synagogue, he and his wife agreed that they were not going to “actually burn the place down ... no, of course not.” Brewer stated he did not want to go into the sy nagogue because that would involve breaking and entering and “destroying the actual in ternal structure rather than just having something they could wash up .” He and his wife wanted to “get” the synagogue’s back wall, but they were deterred by its lights and cameras, so they “got the dumpster instead.” The purpose of burning the “napalm” was to create a lighting effect in front of the spray-painted swastikas “[r]at her than ... burning anything.”No. 19-2095 Page 3

The government charged Brewer under 18 U.S.C. § 241, which criminalizes conspiring to “threaten” or “intimidate” an y person “in the free exercise” of “any right or privilege secured” under the Constitution.

In the presentence investigation repo rt, which recommended a guideline range of 51–63 months (based on a total offense level of 24 and criminal history category of I), the key factor was the base offense level. An offense under 18 U.S.C. § 241 involving two participants corresponds to a base offe nse level of 12, U.S.S.G. § 2H1.1(a)(2), unless the offense level applicable to “any underlying offense” is higher, id. § 2H1.1(a)(1). Indeed, the PSR recommended a base offense level of 24, as called for under the arson guideline, U.S.S.G. § 2K1.4(a)(1)(B), when the underlying offense involves “the destruction or attempted destructio n of ... a place of public use.” Id. The PSR then applied a three-level enhancement because the offense was a hate crime, U.S.S.G. § 3A1.1(a), and deducted three levels for acceptance of responsibility, id. § 3E1.1.

At a joint change-of-plea and sentencing hearing, Brewer pleaded guilty without a plea agreement, and the parties disputed whether § 2K1.4(a)(1)(B) applied to Brewer’s offense. The government insisted that Brewer’s conduct involved the “attempted destruction” of a place of public use based on Brewer and his wife’s plan to break into the synagogue and use the drain-cleaner “b ombs” to spread the “napalm.” Brewer, as he had maintained during his FBI interview, de nied that he ever intended to break into or set fire to the synagogue.

The district court accepted neither positi on. Rather than rely on § 2K1.4(a)(1)(B) for “attempted destruction” of the synagogue, the court invoked an alternative provision under the guideline, § 2K1.4(a)(2)(C)—carrying a base offense level of 20—for an offense that “endangered ... a place of public use.” The court found that the synagogue was a place of public use, that Brewer and his wife had set fire to its campus, and therefore “[t]he fire in the grass [had] endangered the public place.” In the court’s view, substantial evidence—including the coup le’s original (but abandoned) plan and the dangerous unused items they carried wi th them—showed that Brewer and his wife conspired “to cause some type of destruction or endangerment” to the synagogue. The offense level of 20 yielded a guideline ran ge of 33–41 months in prison. The court settled upon a 36-month sentence followed by two years of supervised release and a restitution order of $700 to be paid to the synagogue.

On appeal, Brewer argues only that the dist rict court erred in applying U.S.S.G. § 2K1.4(a)(2)(C) for “endanger[ing] ... a place of public use.” He disputes that a place ofNo. 19-2095 Page 4

public use was “actually endangered.” Instead, he claims his was merely a “small fire,” set on the far side of the dumpster, which “burned out quickly without spreading” and never posed any “actual danger to the syna gogue.” He maintains that the guideline does not cover the threat of minor damage; it encompasses only “actual” endangerment, which he defines as the threat of total destruction or very serious harm. Lastly, he faults the court for relying on th e couple’s “original” but abandoned plan to cause more damage than what they actually carried out.

We approach an interpretation of the Se ntencing Guidelines in the same manner as a question of statutory interpre tation—by beginning with the text. United States

v. Foster , 902 F.3d 654, 657 (7th Cir. 2018). Section 2K1.4(a)(2)(C) applies “if the offense ... endangered ... a place of public use.” A “pla ce of public use” includes “parts of any building, land, street, waterway, or other location that are accessible or open to members of the public,” such as any religious place open to the public. U.S.S.G. § 2K1.4 cmt. n.1; 18 U.S.C. § 2332f(e)(6). No one disput es that the synagogue is a place of public

use. The district court went further and cons idered the synagogue’s entire “campus” as the place of public use, a point that Brewer do es not challenge. Indeed, the district court found “[t]he location where the defendant an d his wife did the destruction and set their fires was on the campus of the synagogue....” The guideline does not, however, define “endangered.” Among the circuits, the term has been addressed only by the Ninth Circuit, which defines it as “putting the pr operty at risk but resulting in no actual damage, or damage that is less than destruction.” United States v. Holmes , 646 F.3d 659, 662 (9th Cir. 2011).

We review the district court’s underlyi ng factual findings for clear error, see United States v. Flores-Olague , 717 F.3d 526, 530 (7th Cir. 2013), and the court here did not clearly err in finding that setting fi re to “napalm” “on the campus of the synagogue” endangered a public place. Wh en asked to clarify the ruling during the sentencing hearing, the district court noted, “This says if the offense endangered. ... The fire in the grass endangered the public plac e.” The court reasonably could conclude that the fire by its very nature put the synagogue’ s campus at risk (spe cifically the grass and
exterior areas, which Brewer does not contest are part of the place of public use), even if it caused no actual damage. See Holmes , 646 F.3d at 662. Brewer dumped an accelerant on open grass next to trees on the synago gue’s property and set the accelerant on fire. The resulting fire was strong enough to sco rch the dumpster enclosure and completely burn the patches of grass. True, the fire did not spread and did not damage the synagogue, but setting fire to a highly fla mmable substance on the synagogue’s exterior property is enough to support the district cour t’s conclusion that “[t]he fire in the grassNo. 19-2095 Page 5

endangered the public place.” And that conc lusion does not leave us with a “definite

and firm conviction that a mistake has been made.” United States v. Samuels , 521 F.3d 804, 815 (7th Cir. 2008) (quoting United States v. Wilson , 502 F.3d 718, 721 (7th Cir. 2007)).

A final point of clarification: We agree wi th Brewer that the district court should not have evaluated § 2K1.4(a)(2)(C) based on the couple’s original but abandoned plan of bringing about further destruction. Bu t any error does not change the outcome because the court reasonably could conclude that Brewer’s completed conduct alone endangered a place of public use.

AFFIRMED