The opinion of the court was delivered by: MALCOLM MUIR
On August 26, 1993, the Grand Jury for the Middle District of Pennsylvania, sitting in Williamsport, returned a nine-count indictment charging Darvin Ray Peachey, Judith Renee Walker, and Betty Mae Walker with criminal conspiracy, witness tampering, obstruction of justice, false statements, perjury before the grand jury and aiding and abetting. On September 28, 1993, Peachey appeared before the Court and entered a plea of not guilty to the indictment. On December 13, 1993, Peachey entered a plea of guilty to a superseding information charging him with criminal conspiracy, arson, and aiding and abetting. The Court ordered a presentence investigation and scheduled a presentence conference for March 7, 1994.
On February 18, 1994, a presentence report was submitted to the Court. The report indicates that the base offense level is 24 pursuant to U.S.S.G. § 2K1.4(a)(1), the total offense level is 27 and the guideline imprisonment range is 70 to 87 months. In paragraph 58 of the report various factors were identified that could warrant an upward departure from the guideline imprisonment range. Peachey filed an objection to the reference in P 58 regarding the existence of factors that could warrant an upward departure from the guidelines. However, in violation of P 8 of our order of December 16, 1993, Peachey did not file a brief in support of his objection. At the presentence conference on March 7, 1994, the failure to file a brief in support of the objection was called to counsel's attention.
By order of March 10, 1994, Peachey was granted an additional period of time within which to file a brief in support of the objection. On March 21, 1994, Peachey filed a brief in support of the objection to P 58 of the presentence report. On April 4, 1994, the Government filed a brief in opposition to the objection. A reply brief was filed by Peachey on April 13, 1994.
Paragraph 58 of the presentence report states as follows:
The Probation Officer has identified no factors warranting a downward departure. Aggravating circumstances that could warrant an upward departure include the following: 1) 139 cattle, 38 horses and numerous other farm animals perished in the fires; 2) The emotional trauma experienced by Amish farmers resulting from the death of their animals is significant; 3) The loss attributable to the fires amounted to over one million dollars; and 4) The arsons created a substantial risk of death or serious bodily injury to volunteers and firefighters from approximately 24 fire departments.
After reviewing the briefs, it was not clear to us whether Peachey was objecting to the factual statements in P 58 or only to the conclusion of the probation officer that the circumstances identified may warrant an upward departure. In light of that uncertainty, by order of April 14, 1994, we directed Peachey to file a statement indicating whether he objected to the factual statements set forth in P 58 or whether he objected only to the conclusion by the probation officer that the factual circumstances identified might warrant an upward departure. We also directed Peachey to file a statement with the Court stating whether or not he objected to any of our findings of fact set forth in our opinion of April 11, 1994, relating to his co-defendants, the Walkers.
Peachey contended that the Government's briefing at our request of the issue of an upward departure "was contrary to the plea agreement in this case." (Peachey's reply brief filed April 13, 1994, p. 1). Therefore, we granted Peachey an opportunity to withdraw his guilty plea and set May 6, 1994, as the deadline for filing the statement relating to P 58 of the presentence report and our findings of fact and for filing a motion to withdraw Peachey's guilty plea. On May 5, 1994, the Defendant filed a statement in accordance with our order of April 14, 1994. That statement indicates as follows:
(2) Defendant does not object to Your Honorable Court's Findings of Fact set forth in your opinion of April 11, 1994, relating to his co-defendants Judith Walker and Betty Walker.
(3) Defendant is prepared to proceed with sentencing during the next available term of Court.
On May 9, 1994, we issued an order granting Peachey and the Government until May 20, 1994, to file a request for a presentence hearing if either was of the view that there were disputed issues of fact or either was of the view that additional evidence was either necessary or advisable on the question of upward departure. Neither Peachey nor the Government filed a request for a presentence hearing. Therefore, we are of the view that the question of upward departure is ripe for disposition. The following are the findings of fact set forth in our opinion of April 14, 1994, relating to Peachey's co-defendants, the Walkers, and our discussion relating to whether an upward departure is warranted in Peachey's case. All of the findings are undisputed by Peachey.
II. Findings of Fact.
1. Co-defendant Darvin Ray Peachey, by pleading guilty to the superseding information filed in United States v. Darvin Ray Peachey, 4:CR-93-208, admitted maliciously damaging and destroying, and attempting to damage and destroy, by means of fire, the following buildings and property on March 14, 1992, and March 15, 1992, in violation of 18 U.S.C. Section 844(i):
VICTIM LOCATION BUILDING PROPERTY IN BUILDING
Samuel Yoder R.D.#1, Box 125 2-story 37 dairy stock cows,
Belleville, PA (Union frame/story barn 7 horses, farm
Township) with slate roof equipment and
approx. 40' x machinery and feed
Samuel Christ R.D.#1 Box 124 2-story hay and feed
Yoder Belleville, PA (Union frame/stone barn
Township) with metal roof
Isaac S. Yoder R.D.#1 Box 243 2-story 33 dairy stock cows,
Milroy, PA (Armagh frame/block/stone7 horses, farm
Township) barn L-shaped equip., machinery
Samuel Moses HRC 61, Box 41 2-story 30 dairy stock cows,
Yoder Belleville, PA (Menno frame/stone barn 11 horses, 4 pigs,
Township) farm equipment,
machinery and feed
Michael Joseph R.D.#2 Box 54 Milroy, 2-story 4 cows, 3 horses,
Hostetler Pa (Armagh Township) frame/block/stonefarm equipment,
barn machinery and feed
Esle Michael R.D.#2 Box 63 Milroy, 2-story 21 cattle 10 horses
Hostetler PA (Armagh Township) frame/stone barn farm equip.,
machinery and feed
Christ R. Yoder R.D.#1 Box 37 Milroy, 2-story 14 cattle, 30
PA (Armagh Township) frame/stone barn rabbits, farm
Raymond Samuel R.D.#1 Box 352 2-story feed and fodder
Hostetler Belleville, PA (Menno frame/stone barn
John Reed Rodgers R.D.#1 Box 129 1-story grain elevator,
Belleville, PA (Union frame/storage fodder
Township) shed for farm
3. With the exception of buildings owned by John Reed Rodgers and Raymond Samuel Hostetler, the buildings burned by Peachey were located next to residences occupied by Amish families who because of their religious beliefs do not have smoke detectors, fire alarms or telephones for use in case of fire.
4. Peachey was aware that all but 2 of the owners of the buildings were Amish and was aware of their beliefs set forth in the preceding paragraph.
5. The fires started by Peachey were reported to various fire companies between 11:42 p.m. on March 14, 1992, and ...