UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4182

JERRY L. BROWN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4185

JERRY L. BROWN,

Defendant-Appellant.

Appeals from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CR-95-191, CR-95-138)

Submitted: December 17, 1996

Decided: August 5, 1997

Before ERVIN and WILKINS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Vacated and remanded for resentencing by unpublished per curiam

opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, Edward H. Weis, First

Assistant Federal Public Defender, Charleston, West Virginia, for

Appellant. Rebecca A. Betts, United States Attorney, Philip J. Combs,

Assistant United States Attorney, Charleston, West Virginia, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Jerry L. Brown was indicted on one count of arson of a facility in

interstate commerce, in violation of 18 U.S.C. § 844(i) (1994). He

was later charged by information with denying access to an establishment in interstate commerce on the basis of race, in violation of 18

U.S.C. § 245(b)(2)(F) (1994). He pled guilty to both charges and was

subsequently sentenced to forty-six months imprisonment with a

three-year term of supervised release. Brown now appeals from that

sentence. For the following reasons, we vacate Brown's sentence and

remand for further proceedings.

I.

The evidence at the sentencing hearing and the undisputed statement of facts in the presentence report showed that on July 30, 1995,

at about 3:40 a.m., Brown, who had been drinking most of the day,

filled a two-liter soda bottle with gasoline and set it on fire in front

of the Capitol Lounge (the "Lounge") in Charleston, West Virginia.

The Lounge is frequented by people of African-American descent.

Brown is white, and his apparent motivation in setting the fire was his

belief that African-Americans were "trying to take over."

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The Lounge is a two-story, brick and masonry building. The front

door is made of steel. There are two apartments above the Lounge,

although neither was occupied at the time of the fire. Several businesses are located in the immediate vicinity. Pedestrian and vehicular

traffic are common in that area early on Sunday mornings, about the

time of the fire. The fire never penetrated the bar to any noticeable

extent. The fire was contained by the fire department and put out

without any apparent difficulty. No one was injured.

In November 1995 (following the indictment, but prior to his guilty

plea), Brown entered a hospital and began treatment for alcoholism,

which he continued. He also made full restitution to the Lounge

before sentencing.

At the end of the sentencing hearing, the district court concluded

that Brown knowingly created a substantial risk of death or serious

bodily injury when he lit the incendiary device. The court characterized the lounge's steel door, which prevented the fire from spreading,

as a mere fortuity. The district court also observed that it is rare for

full restitution to be made before sentencing. It further acknowledged

that Brown had moved to address his alcohol problem and that he

appeared to be a "different person." However, the court noted that

there was a split in the circuits as to whether the acceptance of

responsibility exhibited by Brown could provide a basis for downward departure. Based on United States v. Van Dyke, 895 F.2d 984

(4th Cir. 1990), the court determined that it was precluded from

departing.

II.

Brown first challenges the enhancement for reckless endangerment

under USSG § 2K1.4(a)(1)(A),* arguing that there was no evidence

that he actually endangered anyone. To support this contention,

Brown asserts that there was no one in the vicinity at the time of the

fire and that the steel door on the Lounge prevented the fire from

spreading.

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*United States Sentencing Commission, Guidelines Manual (Nov.

1995).

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We review challenges to a district court's sentencing determination

regarding USSG § 2K1.4 for clear error. United States v. Golden, 954

F.2d 1413, 1416 (7th Cir. 1992). A review of the record fully supports

the district court's decision to enhance Brown's sentence. Brown

attempted to burn down the Lounge with gasoline--a dangerous combustible. He made no effort to determine the building materials of the

Lounge or if anyone was in the Lounge before setting the fire. Furthermore, "even if a building is abandoned, there is always the chance

that someone might be inside, or that a fire fighter may be injured or

killed while putting out the flames. [Moreover,] fires . . . often spread

to other structures and thereby amplify the risk of injury to additional

civilians and fire fighters." Id. at 1417; see also United States v.

Ramey, 24 F.3d 602, 608-09 (4th Cir. 1994) (where no one is injured

due to mere "fortuity," enhancement may still be proper). We therefore hold that the district court appropriately enhanced Brown's sentence.

III.

Brown next challenges the sentencing court's refusal to depart

from the guidelines based on his acceptance of responsibility. A

court's decision not to depart is generally not reviewable on appeal.

United States v. Bayerle, 898 F.2d 28, 30 (4th Cir. 1990). However,

when the district court bases its refusal to depart on lack of legal

authority, the decision is a legal one, and we review it de novo. United

States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992).

Brown asserts that he is entitled to a departure because he made

full restitution before sentencing and because he voluntarily sought

alcohol treatment. He further asserts that the reason the district court

did not depart from the guidelines is that it believed it lacked legal

authority to do so under United States v. Van Dyke, 895 F.2d 984 (4th

Cir. 1990). We recently held that Van Dyke was effectively overruled

by Koon v. United States, 116 S.Ct. 2035, 64 U.S.L.W. 4512 (U.S.

June 13, 1996) (Nos. 94-1664, 94-8842). See United States v. Brock,

108 F.3d 31.

In Koon, the Supreme Court examined departure decisions.

According to Koon, a district court must identify a potential basis for

departure as forbidden, encouraged, discouraged, or unmentioned

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under the guidelines. 116 S.Ct. at 2045. Acceptance of responsibility

or post-offense rehabilitation is properly classified as an unmentioned

basis for departure. Brock, 108 F.3d at 35. When the asserted basis

for departure is unmentioned, the district court may depart only if the

"`structure and theory of both relevant individual guidelines and the

Guidelines taken as a whole' indicate that [the basis for departure]

take[s] a case out of the applicable guideline's heartland." United

States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996). In Brock we

explained that "if a factor is neither encouraged nor discouraged, but

listed by the Commission as one appropriately considered in applying

an adjustment to the guidelines, a court may depart only if the factor

is present to such an exceptional or extraordinary degree that it

removes the case from the heartland of situations to which the guideline was fashioned to apply." Brock, 108 F.3d at 35. "Because the

acceptance of responsibility guideline takes [post-offense rehabilitation] efforts into account in determining a defendant's eligibility for

that adjustment, ... [that factor] may provide an appropriate ground for

departure only when present to such an exceptional degree that the

situation cannot be considered typical of those circumstances in

which an acceptance of responsibility adjustment is granted." Id. The

district court did not have the benefit of either Koon or Brock when

it ruled.

IV.

For the foregoing reasons, we reject Brown's challenge to the reckless endangerment enhancement, but vacate Brown's sentence and

remand for the district court to determine whether Brown's acceptance of responsibility was exceptional enough to take it out of the

heartland of situations addressed by USSG § 3E1.1 and, if so, to

determine whether it will exercise its discretion to depart. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

VACATED AND REMANDED FOR RESENTENCING

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