(because amendment to commentary was intended to clarify guideline's application and was not meant to substantively change the commentary or the guideline the court can consider amendment, even though it was not in effect at the time of the commission of the offense).
Revised Application Note 2 does not preclude a defendant who exercises his constitutional right to go to trial from getting a two-point reduction for acceptance of responsibility. It merely provides that a defendant who goes to trial normally will have difficulty proving acceptance of responsibility, unless the defendant went to trial to challenge the constitutionality of a statute or to challenge whether the statute applied to his conduct. The original Application Note 2, which was in effect at the time defendant committed the offenses, also stated that defendants who go to trial on issues not relating to factual guilt are those most likely to be able to show acceptance of responsibility. While the original Application Note 2 stated that "conviction by trial does not preclude a defendant from consideration under this section," it still required that defendant be able to show "sincere contrition." Given the lack of clarity of defendant's letters and the tardiness of his decision to try to show acceptance of responsibility, the court finds that defendant has not shown "sincere contrition." Thus, under both the original and the revised Application Note 2 to § 3E1.1, the court declines to reduce defendant's offense level by two points for acceptance of responsibility.
Increase of Base Offense Level for Count I
According to Guideline § 2K1.4, the base offense level for the offense of arson is 6. The probation department found that defendant recklessly endangered the safety of another and therefore the probation officer, pursuant to § 2K1.4(b)(2), recommended increasing defendant's base offense level by 14 points. Defendant objects to such a large increase in the base offense level for Count I. Defendant contends that the evidence does not support a finding of reckless endangerment because the store is not adjacent to any residential property. The defendant further argues that he took steps to insure the safety of others, such as closing the store early and instructing his employees to leave the premises.
The court finds that despite defendant's contentions, there is sufficient evidence to warrant a 14 point increase in the base offense level for Count I. Although defendant closed the store early to clear the building before setting the fire, he did not wait very long after closing before he started the fire. The store was normally open until 11:00 p.m. and defendant started the fire at 11:02 p.m. Although none of defendant's employees was present, last-minute customers, expecting the store to be open until 11:00 p.m., may have come to the store and gotten injured. Moreover, there was a phone outside the store and Rose Herron testified at trial that she had just finished using the phone about a minute before the explosion.
Not only did defendant's conduct recklessly endanger possible shoppers and pedestrians using the phone, but it also endangered the lives of the firefighters sent to put out the fire. The entire back wall of the store was blown out and flammable liquids had been poured throughout the area. Furthermore, there was evidence that defendant left the doors of his coolers open to provide more oxygen for the fire. The aforementioned evidence indicates that defendant intended to create a major fire which, by definition, would endanger the lives of the firefighters who were on the scene. In sum, because of the danger defendant created for shoppers, pedestrians and firefighters, the court finds that a 14 point increase of the base offense level for Count I is warranted.
Grouping of Arson and Mail Fraud Counts
Section 3D1.2(b) of the Guidelines provides, in pertinent part:
All counts involving substantially the same harm shall be grouped together into a single Group. Counts involve substantially the same harm within the meaning of this rule: