                         UNITED STATES COURT OF APPEALS
Filed 12/6/96                     TENTH CIRCUIT

                                       ____________


UNITED STATES OF AMERICA,                        )
                                                 )
                      Plaintiff-Appellant,       )
                                                 )
      v.                                         )      No. 95-2099
                                                 )      (D.C. No. CR-94-57-MV)
VICTOR GRANT GOODLUCK, JR.                       )      (D. New Mexico)
                                                 )
                Defendant-Appellee.              )

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                               ORDER AND JUDGMENT*
                                    ____________

Before:         ANDERSON, McWILLIAMS and WEIS,** Circuit Judges.
                               _____________


                Defendant pleaded guilty to an indictment charging that he committed arson

on an Indian reservation. The district court granted a downward departure and sentenced

defendant to six months imprisonment, three years supervised release, nine months

community service, and restitution of $3,600.

___________________________

*       This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of Tenth Cir. R. 36.3. .

**    The Honorable Joseph F. Weis, Jr., Unites States Senior Circuit Judge for the
United States Court of Appeals for the Third Circuit, sitting by designation.
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       In granting a downward departure, the district judge stated that the sentencing

guidelines’ base offense level for arson exaggerated the defendant’s conduct and

culpability. The court also took into account the defendant’s military service during the

Gulf War.

       The record supports the district court’s view that this case did not present a

“typical” arson offense. On the night of February 5, 1993, defendant and a companion,

while intoxicated, went into a large warehouse-type building on the reservation. They lit

pieces of paper in order to illuminate their steps and started small fires in separate corners

of the building to keep warm. The fires went out of control. Due in part to the flammable

nature of some of the materials stored in the building, and the lack of usable firefighting

equipment on the reservation, the building was a total loss.

       There is no evidence that defendant or his companion intended to burn the

building. Rather, the record shows that in their intoxicated state, they were at least

careless, and perhaps reckless, in setting open fires within the building to keep warm.

Their conduct was far removed from a “typical” arson where a building is deliberately set

afire to collect insurance proceeds, or where the arson occurs as an act of revenge, during

a riot, to conceal an earlier crime, or in similar scenarios.

       In Koon v. United States, ___ U.S. ___, 116 S.Ct. 2035, 2046, (1996), the

Supreme Court explained that “[a] district court’s decision to depart from the Guidelines .


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. . will in most cases be due substantial deference, for it embodies the traditional exercise

of discretion by a sentencing court.” We agree that on the record before us, the district

court did not abuse its discretion in determining that the offense at issue here fell outside

the “heartland” of the guidelines. See U.S.S.G. ch.1, pt. A, intro comment. 4(b) (atypical

cases outside of “heartland” may warrant departure).

       The district court also cited the defendant’s conduct during the Gulf War and the

medals he received. As we understand the record, these medals were not awarded for the

defendant’s individual activity and we are not as impressed with the decorations as was

the district judge. Nevertheless, defendant served honorably under combat conditions

and that service was deserving of some consideration by the sentencing judge. Combat

duty is quite different than mere service in the military. Cf. U.S.S.G. § 5H 1.11 (military

service is ordinarily not relevant to a departure). In any event, it is the atypical

circumstances of the offense here that underlie the downward departure.

       In Koon, the Supreme Court stressed that “[i]t has been uniform and constant in

the federal judicial tradition for the sentencing judge to consider every convicted person

as an individual and every case as a unique study in the human failings that sometimes

mitigate, some magnify, the crime and the punishment to ensue.” 116 S.Ct. at 2053.

       The judgment will be affirmed.

                                            Entered for the Court.


                                            Joseph F. Weis, Jr.

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United States Senior Circuit Judge




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