UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                No. 96-4182

JERRY L. BROWN,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                No. 96-4185

JERRY L. BROWN,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-95-191, CR-95-138)

Submitted: December 17, 1996

Decided: August 5, 1997

Before ERVIN and WILKINS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded for resentencing by unpublished per curiam
opinion.

_________________________________________________________________
COUNSEL

Hunt L. Charach, Federal Public Defender, Edward H. Weis, First
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Rebecca A. Betts, United States Attorney, Philip J. Combs,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Jerry L. Brown was indicted on one count of arson of a facility in
interstate commerce, in violation of 18 U.S.C. § 844(i) (1994). He
was later charged by information with denying access to an establish-
ment in interstate commerce on the basis of race, in violation of 18
U.S.C. § 245(b)(2)(F) (1994). He pled guilty to both charges and was
subsequently sentenced to forty-six months imprisonment with a
three-year term of supervised release. Brown now appeals from that
sentence. For the following reasons, we vacate Brown's sentence and
remand for further proceedings.

I.

The evidence at the sentencing hearing and the undisputed state-
ment of facts in the presentence report showed that on July 30, 1995,
at about 3:40 a.m., Brown, who had been drinking most of the day,
filled a two-liter soda bottle with gasoline and set it on fire in front
of the Capitol Lounge (the "Lounge") in Charleston, West Virginia.
The Lounge is frequented by people of African-American descent.
Brown is white, and his apparent motivation in setting the fire was his
belief that African-Americans were "trying to take over."

                    2
The Lounge is a two-story, brick and masonry building. The front
door is made of steel. There are two apartments above the Lounge,
although neither was occupied at the time of the fire. Several busi-
nesses are located in the immediate vicinity. Pedestrian and vehicular
traffic are common in that area early on Sunday mornings, about the
time of the fire. The fire never penetrated the bar to any noticeable
extent. The fire was contained by the fire department and put out
without any apparent difficulty. No one was injured.

In November 1995 (following the indictment, but prior to his guilty
plea), Brown entered a hospital and began treatment for alcoholism,
which he continued. He also made full restitution to the Lounge
before sentencing.

At the end of the sentencing hearing, the district court concluded
that Brown knowingly created a substantial risk of death or serious
bodily injury when he lit the incendiary device. The court character-
ized the lounge's steel door, which prevented the fire from spreading,
as a mere fortuity. The district court also observed that it is rare for
full restitution to be made before sentencing. It further acknowledged
that Brown had moved to address his alcohol problem and that he
appeared to be a "different person." However, the court noted that
there was a split in the circuits as to whether the acceptance of
responsibility exhibited by Brown could provide a basis for down-
ward departure. Based on United States v. Van Dyke, 895 F.2d 984
(4th Cir. 1990), the court determined that it was precluded from
departing.

II.

Brown first challenges the enhancement for reckless endangerment
under USSG § 2K1.4(a)(1)(A),* arguing that there was no evidence
that he actually endangered anyone. To support this contention,
Brown asserts that there was no one in the vicinity at the time of the
fire and that the steel door on the Lounge prevented the fire from
spreading.
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1995).

                    3
We review challenges to a district court's sentencing determination
regarding USSG § 2K1.4 for clear error. United States v. Golden, 954
F.2d 1413, 1416 (7th Cir. 1992). A review of the record fully supports
the district court's decision to enhance Brown's sentence. Brown
attempted to burn down the Lounge with gasoline--a dangerous com-
bustible. He made no effort to determine the building materials of the
Lounge or if anyone was in the Lounge before setting the fire. Fur-
thermore, "even if a building is abandoned, there is always the chance
that someone might be inside, or that a fire fighter may be injured or
killed while putting out the flames. [Moreover,] fires . . . often spread
to other structures and thereby amplify the risk of injury to additional
civilians and fire fighters." Id. at 1417; see also United States v.
Ramey, 24 F.3d 602, 608-09 (4th Cir. 1994) (where no one is injured
due to mere "fortuity," enhancement may still be proper). We there-
fore hold that the district court appropriately enhanced Brown's sen-
tence.

III.

Brown next challenges the sentencing court's refusal to depart
from the guidelines based on his acceptance of responsibility. A
court's decision not to depart is generally not reviewable on appeal.
United States v. Bayerle, 898 F.2d 28, 30 (4th Cir. 1990). However,
when the district court bases its refusal to depart on lack of legal
authority, the decision is a legal one, and we review it de novo. United
States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992).

Brown asserts that he is entitled to a departure because he made
full restitution before sentencing and because he voluntarily sought
alcohol treatment. He further asserts that the reason the district court
did not depart from the guidelines is that it believed it lacked legal
authority to do so under United States v. Van Dyke, 895 F.2d 984 (4th
Cir. 1990). We recently held that Van Dyke was effectively overruled
by Koon v. United States, 116 S.Ct. 2035, 64 U.S.L.W. 4512 (U.S.
June 13, 1996) (Nos. 94-1664, 94-8842). See United States v. Brock,
108 F.3d 31.

In Koon, the Supreme Court examined departure decisions.
According to Koon, a district court must identify a potential basis for
departure as forbidden, encouraged, discouraged, or unmentioned

                    4
under the guidelines. 116 S.Ct. at 2045. Acceptance of responsibility
or post-offense rehabilitation is properly classified as an unmentioned
basis for departure. Brock, 108 F.3d at 35. When the asserted basis
for departure is unmentioned, the district court may depart only if the
"`structure and theory of both relevant individual guidelines and the
Guidelines taken as a whole' indicate that [the basis for departure]
take[s] a case out of the applicable guideline's heartland." United
States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996). In Brock we
explained that "if a factor is neither encouraged nor discouraged, but
listed by the Commission as one appropriately considered in applying
an adjustment to the guidelines, a court may depart only if the factor
is present to such an exceptional or extraordinary degree that it
removes the case from the heartland of situations to which the guide-
line was fashioned to apply." Brock, 108 F.3d at 35. "Because the
acceptance of responsibility guideline takes [post-offense rehabilita-
tion] efforts into account in determining a defendant's eligibility for
that adjustment, ... [that factor] may provide an appropriate ground for
departure only when present to such an exceptional degree that the
situation cannot be considered typical of those circumstances in
which an acceptance of responsibility adjustment is granted." Id. The
district court did not have the benefit of either Koon or Brock when
it ruled.

IV.

For the foregoing reasons, we reject Brown's challenge to the reck-
less endangerment enhancement, but vacate Brown's sentence and
remand for the district court to determine whether Brown's accep-
tance of responsibility was exceptional enough to take it out of the
heartland of situations addressed by USSG § 3E1.1 and, if so, to
determine whether it will exercise its discretion to depart. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

VACATED AND REMANDED FOR RESENTENCING

                    5
