UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4586
DANNY MAYNARD,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4348
DANNY MAYNARD,
Defendant-Appellant.
Appeals from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-00-99)
Argued: December 5, 2003
Decided: May 21, 2004
Before LUTTIG and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. MAYNARD
COUNSEL
ARGUED: Carl James Roncaglione, Jr., Charleston, West Virginia,
for Appellant. Louise Anna Crawford, Assistant United States Attor-
ney, Charleston, West Virginia, for Appellee. ON BRIEF: Kasey
Warner, 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Unpublished opinions are not binding precedent in this circuit.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:
Danny Maynard appeals his convictions and sentence for conspir-
acy to manufacture counterfeit United States obligations, 18 U.S.C.
§ 371, and aiding and abetting the passing of counterfeit obligations,
18 U.S.C. §§ 472, 2. First, Maynard contends his conviction was
obtained through the government’s use of false or perjured testimony.
Second, he appeals his sentence, arguing the district court erred in
departing upward pursuant to U.S.S.G. § 5K2.5, based on its finding
that Maynard committed arson to intimidate a government witness,
burning her trailer home to discourage her from reporting his counter-
feiting activities to the authorities. Finally, Maynard appeals the dis-
trict court’s denial of his post-judgment motion for a new trial based
on newly discovered evidence. We affirm the district court on all
grounds.
I.
Danny Maynard was convicted of a conspiracy to counterfeit
United States obligations along with his father, Jacob Maynard, as
well as Leonard Kersey and Christopher Priestly. The Maynards and
Kersey challenged their convictions in a consolidated appeal.1 There-
1
Priestly has not appealed.
UNITED STATES v. MAYNARD 3
after, we deconsolidated Danny Maynard’s case, placing it on the oral
argument calendar and directing argument on the issue of the upward
departure. We decided the consolidated case on the basis of the par-
ties’ submissions, without hearing argument, affirming the convic-
tions of Jacob Maynard and Kersey and denying their post-judgment
motions for new trial. See United States v. Maynard, 77 Fed. Appx.
183, 184-85 (4th Cir. Oct. 9, 2003) (per curiam) (unpublished). With
the exception of the upward departure issue, Danny Maynard’s argu-
ments, and the facts underlying this appeal, are identical to those in
the consolidated companion case. Therefore, we do not engage in a
detailed recitation of the facts, but reference our opinion in the com-
panion case. See id. at 185-86.
II.
In sentencing Danny Maynard for his counterfeiting convictions,
the district court found that he had committed arson of government
witness Alicia Bennett’s trailer home to intimidate her and discourage
her from revealing his counterfeiting activity. The counterfeiting
guideline, U.S.S.G. § 2B5.1, does not include an enhancement for the
commission of arson, and the district court found that arson "is not
typically associated with counterfeit crimes and lies outside the heart-
land of the guideline that controls the manufacturing and passing of
counterfeit money as set forth in United States Sentencing Guideline
Section 2B5.1." Accordingly, the district court departed upward pur-
suant to U.S.S.G. § 5K2.5 (Property Damage or Loss), an "encour-
aged" basis for departure, and looked to the most analogous guideline
on which to base its sentence. In imposing sentence, the district court
employed the arson guideline, U.S.S.G. § 2K1.4, with its attendant
base offense level of 24, rather than the base offense level of 15 that
§ 2B1.5 would have prescribed. The district court sentenced Danny
Maynard using a total offense level of 28,2 and a criminal history cat-
egory of II, which yielded a guideline range of 87-108 months. The
court sentenced Danny Maynard to eighty-seven months imprison-
ment.
Maynard appeals his sentence, arguing that the district court erred
in departing upward on the basis of § 5K2.5. Maynard argues that the
2
The other enhancements are not on appeal.
4 UNITED STATES v. MAYNARD
property damage or loss caused by the arson was already taken into
account by the counterfeiting guideline, § 2B5.1, and the imposition
of restitution for such loss.
A sentencing court may depart from the guideline range only if the
court finds an aggravating or mitigating factor of a kind, or to a
degree, not adequately considered by the Sentencing Commission. 18
U.S.C. § 3553(b); Koon v. United States, 518 U.S. 81, 98 (1996). We
review the district court’s factual determinations underlying sentenc-
ing for clear error. United States v. Rybicki, 96 F.3d 754, 757 (4th Cir.
1996). We review the district court’s decision to depart de novo. 18
U.S.C.A. § 3742(e) (West Supp. 2003); see United States v. Stockton,
349 F.3d 755, 764 n.4 (4th Cir. 2003) (discussing the Prosecutorial
Remedies and Tools Against the Exploitation of Children Today Act
of 2003 ("PROTECT Act"), Pub. L. No. 108-21, § 401(d)(2), 117
Stat. 650, 670, and the application of de novo, rather than abuse of
discretion, standard of review to a district court’s decision to depart
from the Guidelines).
Here, the district court determined that Maynard committed arson
of Alicia Bennett’s trailer to intimidate her and to prevent her from
speaking to the police regarding Maynard’s counterfeiting. The court
found that Maynard threatened Bennett after she witnessed him in
possession of uncut sheets of counterfeit bills, and subsequently made
threatening remarks concerning setting fire to the trailer before having
an accomplice commit the arson.3 As discussed above, the court
found that arson is conduct not typically associated with counterfeit-
ing offenses and lies outside the heartland of the counterfeiting guide-
line. We affirm that finding because it is indisputable that arson is an
offense so "atypical" and extraordinary that it falls well outside the
3
At oral argument, Maynard’s attorney conceded the factual predicate
for the district court’s upward departure, i.e., that the arson was commit-
ted by Maynard for the purpose of intimidating a witness to prevent her
from divulging Maynard’s counterfeiting activities. See Tape of Oral
Argument, Dec. 5, 2003 (Appellant’s Opening Argument) ("[T]he arson
was not committed to destroy property or to cause property damage or
loss, instead the arson was committed to intimidate a witness . . . . If you
take the facts in the light most favorable for the government given the
verdict [the arson was done to intimidate the witness].").
UNITED STATES v. MAYNARD 5
heartland of Guideline § 2B1.5. Similarly, we affirm the district
court’s use of § 5K2.5 (Property Damage or Loss) as an appropriate
basis for departure.
In so holding, we reject Danny Maynard’s contentions that the
arson did not fall outside the heartland because restitution imposed at
sentencing under U.S.S.G. § 2B5.1 would take into account all of the
property damage or loss resulting from Maynard’s conduct in
attempting to conceal his counterfeiting. Maynard’s argument rests on
a legal premise as bizarre as it is fatuous, namely that if Maynard
committed the arson, it was done to intimidate a witness, not to cause
property damage or loss. See, e.g., Maynard’s Br. at 40 ("The alleged
arson of the dwelling . . . was, in the eyes of the district court at sen-
tencing, to intimidate a witness, not to cause property damage or
loss."); id. at 41 ("The alleged intimidation of a witness, which is not
an element of conspiracy to commit counterfeiting, does not magi-
cally transform into property damage or loss so as to serve as a basis
for upward departure, not otherwise taken into account within the guide-
lines.").4
In arguing as much, Maynard seems to mistakenly substitute a con-
ception of arson as a specific intent crime for inherent aspects of the
offense. He argues that it was error to depart under § 5K2.5, because
"arson of a dwelling to intimidate a witness is obviously not a ‘prop-
erty damage or loss’." (Br. at 37.) Such a statement is incomprehensi-
ble. Arson, whether committed to intimidate a witness or for any
other reason, is property damage or loss. The fact that the main goal
of Maynard’s arson may have been to intimidate a witness, and not
merely to destroy property, does not change the analysis of the
4
While U.S.S.G. § 2B5.1 accounts for property damage or loss, arson
constitutes a type of "property damage or loss not taken into account
within the guidelines . . . ." U.S.S.G. § 5K2.5. Specifically, the type of
loss assumed in § 2B5.1 flows directly from the passing of counterfeit
bills (i.e., surrendering property on the false assumption that legitimate
currency is being received as consideration), not from arson or other such
property damage truly extraneous from the counterfeiting. In this man-
ner, arson is an "aggravating" type of "circumstance . . . present to an
unusual degree and distinguishes the case from the ‘heartland’ cases cov-
ered by the [counterfeiting] guidelines." U.S.S.G. § 5K2.0.
6 UNITED STATES v. MAYNARD
offense. Arson is not a specific intent crime, whereby one must spe-
cifically intend property damage or loss, which is where Maynard
seems utterly confused. To enhance based on the arson, the district
court did not need to find that Maynard committed arson with the spe-
cific intent to cause property damage or loss — rather property dam-
age or loss is an inherent aspect of the offense itself5 — the district
court merely needed to find the arson was connected to the counter-
feiting offense, and fell outside the heartland of that guideline.
The district court made exactly such a finding, and we affirm. Like
the district court, we find the type of property damage or loss occa-
sioned by arson is entirely divorced from the heartland of the counter-
feiting guideline, thus upward departure was warranted.
III.
Despite our expressed desire to hear argument limited to the depar-
ture issue, Danny Maynard also presented argument on the issues of
the alleged use of perjured testimony and the district court’s denial of
a new trial, issues upon which his co-defendants and counsel had
already received adverse rulings in the companion case. Thus, on the
remaining issues, whose facts and legal theories are identical to those
in the companion case, we affirm the district court for the reasons pre-
viously detailed. See Maynard, 77 Fed. Appx. at 186-88.
IV.
For the reasons discussed in the companion case, we affirm Danny
Maynard’s conviction and the district court’s denial of his post-
judgment motion for a new trial. For the reasons discussed above, we
affirm the district court’s upward departure in sentencing Danny
Maynard.
AFFIRMED
5
To illustrate, West Virginia defines arson, not in terms of an intent to
destroy or damage property, but as any willful and malicious burning of
dwellings, building structures and personal property, or aiding in such
offenses. W. Va. Stat. §§ 61-3-1(a); 61-3-2; 61-3-3; 61-3-4.