Submitted November 13, 2014.
Appeal from United States District Court for the District of Minnesota - St. Paul.
For United States of America, Plaintiff - Appellee: Andrew Dunne, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Minnesota, Minneapolis, MN.
Ryan Gregory Scharber, Defendant - Appellant, Pro se, Babbitt, MN.
For Ryan Gregory Scharber, Defendant - Appellant: Joseph Patrick Tamburino, CAPLAN & TAMBURINO LAW FIRM, Minneapolis, MN.
Before MURPHY, MELLOY, and BENTON, Circuit Judges.
MURPHY, Circuit Judge.
Ryan Scharber pled guilty to setting federal forest land afire in violation of 18 U.S.C. § 1855, and maliciously attempting to commit arson of a building affecting interstate commerce, in violation of 18 U.S.C. § 844(i). At sentencing Scharber claimed that a five year mandatory minimum sentence under § 844(i) did not apply because the government had failed to prove that he had acted with malice in attempting to commit arson. The district court disagreed and sentenced him to the five year mandatory minimum term. Scharber now appeals his sentence. We affirm.
In August 2011 federal and state law enforcement agencies commenced a joint investigation of a series of suspicious fires in Babbitt, Minnesota and the Superior National Forest. The fires involved structures and natural forested areas owned or operated by the United States Forest Service (USFS), the Minnesota Department of Natural Resources (MDNR), and private landowners. Some of the fires were started with complex combustible flares, while others were started with simple pocket lighters. The investigation eventually identified Scharber, who was the Chief of the Babbitt Volunteer Fire Department (BVFD) at the time, as the arsonist.
On December 3, 2011 the owner of the Birch Lake Resort in Babbitt found Scharber trespassing on resort property. Scharber had parked his vehicle next to a storage garage at the resort and walked around to the backside of the garage. The resort owner approached Scharber, who identified himself as the Chief of the BVFD and said that he had driven onto the resort property in order to urinate. After Scharber left the storage area, the resort owner found a gasoline tank leaning against the backside of the garage. He then notified law enforcement of his discovery.
Officials interviewed Scharber at BVFD headquarters. By the conclusion of the interview, Scharber had admitted setting nine fires on federal and state forest land, and an attempted arson at the Birch Lake Resort. A three count information was filed in the District of Minnesota on October 11, 2013, charging Scharber with setting federal forest land afire in violation of 18 U.S.C. § 1855; committing arson on federal forest land in violation of 18 U.S.C. § 844(f)(1); and maliciously attempting to commit arson of a building affecting interstate commerce in violation of 18 U.S.C. § 844(i). The third count under § 844(i) stated that Scharber " maliciously attempt[ed] to damage and destroy, by means of a fire, a building located on Mattila's Birch Lake Resort in Babbitt, Minnesota, used in and affecting interstate and foreign commerce."
On November 22, 2013 Scharber signed a plea agreement admitting to one count of setting federal forest land afire in violation of § 1855 and one count of maliciously attempting to commit arson of a building affecting interstate and foreign commerce in violation of § 844(i). The plea agreement stated that Scharber had violated § 844(i) by " maliciously attempt[ing] to damage and destroy, by means of a fire, a building located on Mattila's Birch Lake Resort in Babbit, Minnesota, used in and affecting interstate and foreign ...