Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, Chief District Judge, Presiding D.C. No. 1:08-CR-00147-BLW-1
The opinion of the court was delivered by: Kozinski, Chief Judge
Argued and Submitted May 5, 2010-Portland, Oregon
Before: Alex Kozinski, Chief Judge, Andrew J. Kleinfeld and Sandra S. Ikuta, Circuit Judges.
Opinion by Chief Judge Kozinski; Concurrence by Judge Kleinfeld
What does it mean to destroy land?
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 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 = mc 2 and all that. The question is, when is the change in form sufficient for us to refer to it as destruction?
 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.
 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 ...