12. Because of the apparent risk of the barn fire at Isaac S. Yoder's farm spreading to the nearby house, fire fighters and residents of the home began to remove furniture and other belongings from the residence.
13. During the first 10 to 15 minutes after arriving at the barn fire at Isaac S. Yoder's farm, fire fighters had an insufficient supply of water to fight the barn fire and protect the nearby home.
14. Fire fighters at Isaac S. Yoder's farm observed fire damage to the siding of the residence.
15. Christ R. Yoder's farm is located in the vicinity of Coffee Run Road.
16. The heat and intensity of the burning barn at Christ R. Yoder's farm caused the siding on the house which is located within 35 to 40 feet of the barn to melt and hang loose.
17. Fire fighters at the fire at Christ R. Yoder's farm found the barn fully engulfed by flames. The fire fighters applied their limited water supply to the nearby residence because they believed the barn fire presented a serious threat to the residence.
18. A shift in the wind caused the barn fire at Christ R. Yoder's farm to move toward the nearby residence.
19. When they initially arrived at Christ R. Yoder's farm, the fire fighters had an insufficient supply of water to fight the barn fire and protect the nearby home because the necessary fire equipment was occupied in fighting the other barn fires in Mifflin County set by Peachey.
20. The fire at Christ R. Yoder's farm scorched a fire fighter's gear and helmet when the wind shifted.
21. Volunteer fire fighters observed the burning barn on Samuel Moses Yoder's farm and entered the nearby residence to evacuate the sleeping occupants.
22. Fire fighters at Samuel Moses Yoder's farm found the barn fully engulfed by flames. The fire fighters decided to apply their limited water supply to the nearby residence, located within 75 feet of the burning barn, because they believed the barn fire presented a serious threat to the residence.
23. When fire fighters at Samuel Moses Yoder's farm applied water to the residence, steam was produced because the residence was hot from the intense fire at the barn.
24. Samuel Isaac Yoder's farm is located in the vicinity of Plum Bottom.
25. Fire fighters at Samuel Isaac Yoder's farm observed farm animals on fire running from the burning barn.
26. Fire fighter Steven Stringfellow, Chief of the Milroy Hose Company, injured his back during efforts to fight the fire at the farm of Michael Joseph Hostetler in the vicinity of Back Mountain Road. As a result of his injury Stringfellow required medical treatment and missed two days of work.
27. Immediately before Peachey set the barns on fire, Peachey and Judith Renee Walker drove close to the nearby residences.
28. Judith Renee Walker accompanied Peachey in Peachey's car when all the fires were set by him.
29. With the exception of the storage shed owned by John Reed Rodgers, almost all, if not all, of the buildings burned by Peachey were located within 25 to 200 feet of occupied residences.
30. Betty Mae Walker was not a participant or an accomplice in the arson fires which occurred on March 14 and 15, 1992.
31. The fires that were set involved buildings which were not intended primarily for human occupation or residence.
32. Judith Renee Walker did not knowingly or recklessly create a situation where there was a substantial risk of death or serious injury to another person.
In our order of March 10, 1994, we notified Peachey that we were "considering an upward departure because of the extremely large number of acts of arson committed by him, the consequent danger to persons near or at the scenes of the fire and the extremely large amount of damage incident thereto. . . ." We are of the view that the factors identified in our order of March 10, 1994, and in P 58 of the presentence report when viewed collectively describe an atypical case of arson, the circumstances and ramifications of which have not been addressed adequately by § 2K1.4(a)(1) of the Sentencing Guidelines, the provision under which Peachey's base offense level is determined. The above findings of fact demonstrate that this is an atypical case of arson.
The circumstances justifying an upward departure in Peachey's case include the extremely large number of acts of arson committed by him, the risk and danger to persons occupying dwellings near the fires, the risk and danger to the fire fighters from approximately 24 fire departments and to the public safety and welfare of persons in the community because of the substantial strain on available fire emergency resources in Mifflin County. Section 5K2.7 of the Sentencing Guidelines states:
If the defendant's conduct resulted in a significant disruption of a governmental function, the court may increase the sentence above the authorized guideline range to reflect the nature and extent of the disruption and the importance of the governmental function affected. Departure from the guidelines ordinarily would not be justified when the offense of conviction is an offense such as bribery or obstruction of justice; in such cases interference with the governmental function is inherent in the offense, and unless the circumstances are unusual the guidelines will reflect the appropriate punishment for such interference.
The number of fires started by Peachey within approximately 90 minutes greatly strained the emergency and fire fighting resources available in Mifflin County during the late evening of March 14, 1992, and the early morning hours of March 15, 1992. As indicated in the presentence report and in the findings of fact set forth above, fire fighters from approximately 24 fire departments in Mifflin County and three surrounding counties responded to the fires started by Peachey. The remote, rural locations of the fires and the scarcity of available water exacerbated the difficulties encountered by fire fighters fighting the fires and protecting the nearby residences.
Section 5K2.7 "is concerned with the degree of disruption and the importance of the governmental function disrupted." United States vs. Flinn, 18 F.3d 826, 1994 U.S. App. LEXIS 2636, 1994 WL 44310, pp. 5-6 (10th Cir. (N.M.)). Peachey's conduct implicated an important governmental function, i.e. the ability of local communities quickly and effectively to respond to fires and other emergencies. The scope and magnitude of the blazes disrupted that function to an extent exceeding the effect a typical barn fire would have had on emergency resources. Peachey's conduct caused a significant disruption of a vital governmental function, the fire fighting and emergency response capability in Mifflin County and nearby counties on the night of the blazes.
The increased burden on emergency response resources resulting from Peachey's conduct is not inherent in the offense of arson. Although every fire is somewhat disruptive, the number of fire companies, fire and emergency personnel, and fire equipment required to respond to the fires in this case went far beyond the typical expenditure of local fire and emergency resources necessary to fight a single fire. This is therefore the unusual case of arson, where the disruption is so "atypically greater as to exceed the level of interference inherent in the offense." United States vs. Sarault, 975 F.2d 17, 19-20 (1st Cir. 1992). An upward departure under § 5K2.7 therefore is appropriate.
In addition to § 5K2.7, § 5K2.14 concerning public welfare also affords a basis for an upward departure. That provision states:
If national security, public health or safety was significantly endangered, the court may increase the sentence above the guideline range to reflect the nature and circumstances of the offense.