U.S. v. Holmes, No. 09-30211 (6-16-11) (Kozinski with Ikuta; concurrence by Kleinfeld).

The 9th (Kozinski) starts the opinion with: "What does it mean to destroy land?" That is the issue. The defendant, a volunteer fireman, was convicted of starting six fires. He burnt nearly 1,000 acres covered by sagebrush. Does this count, under the Guideline 5K1.4(a)(1) as destruction of a place of public use? If so, as the district court found, the base offense level is 24; if it is endangerment, it is far less. In an engagingly written opinion, featuring references to Ming vases, spilt milk, Jimmy Choos, and even the theory of relativity, the 9th remands for a determination of what the extent of damage was, and whether the land was actually destroyed. Grass will grow again, and wildlife will return; just not next year. The error was procedural in the sense that the parties did not get a chance to argue. Concurring, Kleinfeld agrees. His basis for a remand is that the Guideline, designed for such acts as attempting to destroy airports and train stations, should not apply to this act.