Cupka

MEMORANDUM **

Cupka was convicted of arson, conspiracy to commit arson, and aiding and abetting. He appeals the district court’s application of the base offense level of 20 for creating a substantial risk of death or serious bodily injury. 1 Whether a defendant recklessly created a substantial risk of death or serious bodily harm is a factual question, and the district court’s findings are reviewed for clear error.

U.S.S.G. § 2K1.4(a)(2) provides a base offense level of 20 for crimes of arson which involve property damage by use of explosives “if the offense (A) created a substantial risk of death or serious bodily injury to any person other than a participant in the offense.” We apply this base offense level if the fire is started in close proximity to dwellings or if the fire is located where people are likely to pass by. 3 The cars that Cupka burned were parked close to apartment buildings and on two occasions people stopped by the fires. The district court’s finding that Cupka’s fires created a substantial risk of death or serious bodily injury was not clearly erroneous.

AFFIRMED.

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