United States v. Steven Butcher

MEMORANDUM

Steven Emory Butcher was convicted of two counts of willfully and without authority setting fire to federal land, in violation of 18 U.S.C. § 1855 , as well as three misdemeanor offenses. The convictions stem from wildfires Butcher started in Los Padres National Forest in 2002 and 2006. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 , and we affirm his convictions and sentence. The parties are familiar with the facts of this case, so we repeat them here only as necessary.

Butcher argues some of his convictions overlap to such a degree that they violate his rights under the Fifth Amendment’s Double Jeopardy Clause. Because he raises this issue for the first time on appeal, we review for plain error. United States v. Schales, 546 F.3d 965, 977 (9th Cir.2008). Contrary to Butcher’s contention, 18 U.S.C. § 1855 and 36 C.F.R. § 261.52 (a) are separate and distinct offenses because each “requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932). Section 1855 requires proof that a defendant willfully started a fire; § 261.52(a) does not. United States v. Velte, 331 F.3d 673 , 677…