FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-30211

Plaintiff-Appellee, D.C. No.

v.  1:08-CR-00147-

BLW-1 CLYDE DEWAYNE HOLMES, JR.,

Defendant-Appellant. 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

8207
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

UNITED STATES v. HOLMES 8209
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

8210 UNITED STATES v. HOLMES
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 ecoUNITED STATES v. HOLMES 8211
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.

8212 UNITED STATES v. HOLMES
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 proUNITED STATES v. HOLMES 8213
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 sug8214 UNITED STATES v. HOLMES
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 Okla1The 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. 

2At 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). 

UNITED STATES v. HOLMES 8215
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

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

8216 UNITED STATES v. HOLMES
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

4U.S.S.G. § 2K1.4(a)(1) (2007). 

5The relevant sentencing guideline provides, in full: 

§ 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 

UNITED STATES v. HOLMES 8217
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). 

6The 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)).

7Portland 76 Auto/Truck Plaza, Inc. v. Union Oil Co., 153 F.3d 938,

945 (9th Cir. 1998). 

8218 UNITED STATES v. HOLMES
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

UNITED STATES v. HOLMES 8219
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

8220 UNITED STATES v. HOLMES
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). 

9

42 U.S.C. § 6928(d); see U.S.S.G. § 2Q1.2(a). 

1049 U.S.C. § 5124; see U.S.S.G. § 2Q1.2(b)(7). 

1142 U.S.C. § 6928(e); see U.S.S.G. § 2Q1.1(a). 

12See 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.”)). 

UNITED STATES v. HOLMES 8221