                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit

                      ___________________________

                              No. 97-30882
                           _________________


                       UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                VERSUS


                       KENNETH R. ANDERSON, SR.,

                                                   Defendant-Appellant.


          Appeal from the United States District Court
              for the Western District of Louisiana
                          96-CR-10017-01

                           October 12, 2000

Before DAVIS, EMILIO M. GARZA, Circuit Judges, and POGUE, Judge*.

PER CURIAM:**

     A jury found Kenneth R. Anderson, Sr., guilty of conspiracy,

arson, mail fraud, and witness tampering. In accordance with the

Sentencing Guidelines and the recommendations of the presentencing

report (PSR), the district court sentenced Anderson to 97 months

imprisonment and three years of supervised release during which he

would pay, in monthly installments, a $50,000 fine and over $38,000


     *
       Judge of the U.S. Court of International Trade, sitting by
designation.
     **
       Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
in restitution.        Anderson appeals his sentence, and we AFFIRM.

       Anderson challenges two aspects of his sentence.                   First, he

argues that the district court erred when it adopted the PSR’s

recommendation of a base offense level of 24 for the arson offense.

See U.S.S.G. § 2K1.4(a)(1) & (2). Second, Anderson argues that the

district court erred in imposing a $50,000 fine despite the fact

that     his   age,        physical     condition     and    financial    situation

demonstrate an inability to pay the fine. Since Anderson concedes

that he failed to made either of these challenges in the district

court, we review only for plain error.                      See United States v.

Aderholt, 87 F.3d 740, 744 (5th Cir. 1996)(guideline application);

United    States      v.    Landerman,     167    F.3d   895,   899-900   (5th    Cir.

1999)(fine). Even if we find that the district court erred, we can

reverse only if the error was plain, meaning obvious, and if the

error affected Anderson’s substantial rights.                    See Aderholt, 87

F.3d at 744.       If Anderson satisfies this demanding threshold, we

have discretion        to     correct    the     district   court’s   error      if   it

“seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Id. (citing United States v. Olano, 507 U.S.

725, 736 , 113 S.Ct. 1770, 123 L.Ed. 2d 508 (1993)).

       The Sentencing Guidelines provide that the base offense level

for arson should be:

       (1) 24, if the offense, (A) created a substantial risk of
       death or serious bodily injury to any person other than a
       participant in the offense, and that risk was created
       knowingly; or (B) involved the destruction of a dwelling; [or]

       (2) 20, if the offense, (A) created a substantial risk of
     death or serious bodily injury to any person other than a
     participant in the offense, (B) involved the destruction or
     attempted destruction of a structure other than a dwelling; or
     (C) endangered a dwelling, or a structure other than a
     dwelling.

U.S.S.G. § 2K1.4 (1996).        While the PSR recommended a base offense

level   of   24,   it   did   not   provide   any   rationale   for   adopting

subsection (1) over subsection (2), nor did it indicate that

subsection (2) was a possibility.         Similarly, as Anderson did not

challenge the base offense level in the district court, the court

adopted the recommendation of the PSR without an explanation.

     Since Anderson’s arson concerned his nightclub, “Bodacious

Country,” and not a “dwelling,” this classification was only

correct if Anderson committed his offense knowing that he was

creating a substantial risk of death or serious bodily injury to

someone other than a participant in the offense.                Although the

commentary to the Guidelines provides that creating a substantial

risk of death or serious bodily injury includes creating that risk

to fire fighters, See id.. Comment (n.2), other circuits have held

that the risk to fire fighters under this provision must include

something more than simply responding to a fire.           United States v.

Johnson, 152 F.3d 553, 556s (6th Cir. 1998); United States v.

Honeycutt, 8 F.3d 785, 787-88 (11th Cir. 1993). We have not defined

the term “knowingly” as it relates to arson, nor have we explained

the necessary level of risk to fire fighters that must be present

for the application of commentary note 2.

     We need not address those issues in this case.              If Anderson
had objected to the use of the base offense level under U.S.S.G. §

2K1.4(1), the district court could have conducted a hearing and

made appropriate factual findings.      Such findings may or may not

have been favorable to him.     The district court’s failure to make

specific findings on the risks fire fighters might have taken in

fighting the fire and Anderson’s knowledge of such risks was not

due to its own error, but instead due to Anderson’s failure to

challenge the issue.     In such circumstances, we almost never find

plain error.     United States v. Ruiz, 43 F.3d 985, 991 (5th Cir.

1995).

     Anderson’s ability to pay a fine and restitution in 35 monthly

installments   of   $2,524,   considering   his   physical   limitations,

financial situation and the PSR’s failure to specifically recommend

the imposition of a fine, presents a close question.           See, e.g.

United States v. Hodges, 110 F.2d 250, 251-252 (5th Cir. 1997).

However, the district court adopted the findings in the PSR,

concluded that Anderson would be able to pay a fine, and developed

a payment plan designed around the limitations expressed in the

PSR. Moreover, the district court articulated specific reasons for

its findings, i.e. that Anderson has a college education and has

experience as a businessman. The district court’s conclusion finds

some support in the record.      As a consequence, Anderson has not

demonstrated that the district court’s conclusion was a plain or

obvious error.      See Olano 507 U.S. at 730-736; United States v.

Calverley 37 F.3d 160, 162-164 (5th Cir. 1994)(en banc).
Accordingly, the district court’s judgment is AFFIRMED.
