                                                                             FILED
                            NOT FOR PUBLICATION                               APR 21 2010

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 08-50518

              Plaintiff - Appellee,               D.C. No. 2:07-CR-00749-VBF-1

  v.
                                                  MEMORANDUM *
STEVEN EMORY BUTCHER,

              Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Central District of California
                  Valerie Baker Fairbank, District Judge, Presiding

                         Argued and Submitted April 8, 2010
                                Pasadena, California

Before: PREGERSON and THOMPSON, Circuit Judges, and CONLON,** District
Judge.

       Steven Emory Butcher was convicted of two counts of willfully and without

authority setting fire to federal land, in violation of 18 U.S.C. § 1855, as well as

three misdemeanor offenses. The convictions stem from wildfires Butcher started

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
in Los Padres National Forest in 2002 and 2006. We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm his convictions and sentence.

The parties are familiar with the facts of this case, so we repeat them here only as

necessary.

      Butcher argues some of his convictions overlap to such a degree that they

violate his rights under the Fifth Amendment’s Double Jeopardy Clause. Because

he raises this issue for the first time on appeal, we review for plain error. United

States v. Schales, 546 F.3d 965, 977 (9th Cir. 2008). Contrary to Butcher’s

contention, 18 U.S.C. § 1855 and 36 C.F.R. § 261.52(a) are separate and distinct

offenses because each “requires proof of a fact which the other does not.”

Blockburger v. United States, 284 U.S. 299, 304 (1932). Section 1855 requires

proof that a defendant willfully started a fire; § 261.52(a) does not. United States v.

Velte, 331 F.3d 673, 677 n. 1 (9th Cir. 2003). Section 261.52(a) requires proof that

a defendant violated a specific Forest Service prohibition against setting fires; §

1855 does not. Id. at 677-78. Butcher’s argument that § 1855 is a lesser-included

offense of 36 C.F.R. § 261.5(e) is equally unavailing. Section 1855 requires proof

of an element not found in § 261.5(e), namely that a fire be started “without

authority.”1 We find no error, let alone plain error, in Butcher’s multiple

convictions.


                                           2
      We review the district court’s determination of the amount of loss for clear

error. United States v. Santos, 527 F.3d 1003, 1006 (9th Cir. 2008). The district

court determined that Butcher was responsible for $228,000 in losses, one of

several alternative amounts proposed by Butcher himself. We are not persuaded

by Butcher’s argument that the district court erred in including fire suppression

costs in the loss calculation. There was sufficient evidence in the record to

conclude that Butcher knew or should have known that fire suppression

expenditures were a reasonably foreseeable result of his actions. See United States

v. Warr, 530 F.3d 1152, 1158-59 (9th Cir. 2008).

      Butcher’s contention that the district court impermissibly enhanced his

sentence based on a loss amount not determined by the jury is squarely foreclosed.

See United States v. Hickey, 580 F.3d 922, 932 (9th Cir. 2009). The same is true of

Butcher’s as-applied Sixth Amendment challenge to his sentence. See United

States v. Treadwell, 593 F.3d 990, 1016-18 (9th Cir. 2010).

      Finally, we reject Butcher’s argument that the district court erred by

including fire suppression costs in the restitution order. The Forest Service

incurred the suppression costs as a direct result of Butcher’s offenses. The causal

chain does “not extend so far, in terms of the facts or the time span, as to become




                                          3
unreasonable.” United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 928 (9th

Cir. 2001).

      AFFIRMED.

1. At the time of his conviction, 36 C.F.R. § 261.5(e) merely prohibited
“[a]llowing a fire to escape from control.” Subsequently, the provision was
amended to prohibit “[c]ausing and failing to maintain control of a fire that is not a
prescribed fire that damages the National Forest System.” We do not address the
question of whether the amended provision raises double jeopardy issues when
paired with a conviction under 18 U.S.C. § 1855.




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