§355 Environmental Offenses
8th Circuit agrees that defendant helped establish market for illegal rhino horns. (355) Defendant, a taxidermist, pled guilty to Lacey Act trafficking, based on his involvement in the purchase and sale of a pair of rhinoceros horns. The district court sentenced him to 27 months. He argued for the first time on appeal that the court made an “unsustainable finding” when it stated that even though defendant did not go to Africa and poach a black rhino, his actions “helped establish a market for these black rhino horns.” Defendant argued that because the horns he purchased in Oregon were first acquired legally in 1957, he “did not contribute to a market or demand for poached black rhino horns.” The Eighth Circuit found no plain error. Using false identification, defendant purchased a pair of black rhinoceros horns and shipped the horns across the country, knowing they would be resold. U.S. v. Hess, __ F.3d __ (8th Cir. July 18, 2016) No. 15-3551.
8th Circuit upholds sentence at bottom of range for Lacey Act trafficking. (355)(742) Defendant, a taxidermist, pled guilty to Lacey Act trafficking, based on his involvement in the purchase and sale of a pair of rhinoceros horns. The district court sentenced him to 27 months, at the bottom of his 27-33 month guideline range. The Eighth Circuit rejected defendant’s claim that the sentence was unreasonable. The district court considered defendant’s criminal history and the effect the sentence would have on his relationship with his son, and disagreed with defendant’s claim that he was not a “repeat offender.” The district court “carefully considered” the §3553(a) factors. Responding to defendant’s argument that other individuals received more lenient sentences, the district court explained it could not “speculate why judges in different judicial districts across the country decided on a particular disposition for a particular defendant.” Defendant did not overcome the presumption that his sentence at the bottom of the range was reasonable. U.S. v. Hess, __ F.3d __ (8th Cir. July 18, 2016) No. 15-3551.
8th Circuit finds three transactions were part of a single scheme to defraud. (355) Defendant was involved in a scheme with Barber and others to hide Barber’s income and assets from Barber’s creditors. Defendant pled guilty to a single count of money laundering. The district court calculated the money involved as $244,000, based on three transactions: (1) a $64,000 check that was the factual basis for defendant’s count of conviction; (2) $30,000 cash delivered to defendant by Barber and deposited by defendant into a safe deposit box owned by defendant; and (3) $150,000 wired by Barber’s attorney to a bank account in New York in the name of an entity allegedly owned by defendant. The Eighth Circuit held that the three financial transactions were part of single scheme to defraud, and thus the district court properly increased defendant’s offense level based on all three financial transfers. U.S. v. Van Doren, __ F.3d __ (8th Cir. Sept. 3, 2015) No. 14-3685.
10th Circuit agrees that salting tree stands for elk and deer created significant risk of spreading disease. (355) Defendant, the operator of a guide service, was convicted of violating the Lacey Act in connection with illegal tactics he used attract elk and deer for his hunter clients. The district court found that defendant’s practice of placing salt for elk and deer around his tree stands created a significant risk spreading disease, and applied a §2Q2.1(b)(2) enhancement. The Tenth Circuit affirmed, relying on photographs showing elk gathering at locations where defendant placed salt. One photo depicted five elk with their noses down on the ground at one of defendant’s salt licks. A state wildlife officer testified that when elk are artificially fed with salt, “where their noses are actually together in the … same pile of food, that is not a natural feeding pattern for them, and it increases their direct physical contact which, therefore, increases the potential for disease transmission.” Another wildlife manager testified similarly, noting that “animals don’t congregate naturally in large groups like this.” U.S. v. Rodebaugh, __ F.3d __ (10th Cir. Aug. 25, 2015) No. 13-1081.
10th Circuit upholds reasonable estimate of “market value” of deer and elk taken illegally. (355) Defendant, the operator of a guide service, was convicted of violating the Lacey Act in connection with illegal tactics he used attract elk and deer for his hunter clients. The Tenth Circuit upheld a six-level enhancement under §2Q2.1(b)(3)(A)(ii) for taking wildlife with a “market value” of more than $30,000. The district court found the fair-market retail price was difficult to discern because there was no fair market for wild deer or elk. The court then made a reasonable estimate using reliable information from government witnesses. The court found that the price of processed elk meat ranged from $1,200 to $1,850. In addition, it took into account the trophy value of six bull elk. Using estimates from bred elk, the court determined the trophy value was $1,770 for four-point and five-point bull elk and $2,300 for six-point bull elk. It then estimated the value of the wildlife taken using relevant conduct, which encompassed the kills of 14 elk, one deer buck, and one deer doe. Although eight of the elk kills were unindicted, the district court properly included them as relevant conduct because they were part of the same course of conduct as the offenses of conviction. U.S. v. Rodebaugh, __ F.3d __ (10th Cir. Aug. 25, 2015) No. 13-1081.
8th Circuit rejects as unreliable wildlife president’s valuations of birds killed by defendant. (355) Defendant pled guilty to killing a bald eagle and a rough-legged hawk. He argued that the district court erred in valuing the eagle at $10,000 and the hawk at $1,750, resulting in a four-level enhancement under § 2Q2.1(b)(3)(A)(ii) for wildlife with a “market value” exceeding $10,000. The U.S. Fish and Wildlife Service had prepared a Valuation Table that identified the replacement value of eagles as $2,500 and the replacement value of hawks as $350. Both the district court and the government had relied on the Valuation Table to value bald eagles in previous cases. However, the court chose to rely on an affidavit from Clark, President of the Wildlife Center of Virginia. The Eighth Circuit held that Clark’s valuations were not sufficiently reliable to rely upon them. In addition to the drastic difference from the valuations used by the government and the district court in similar cases, Clark’s affidavit suggested that he inflated his valuation to comport with his own beliefs as to what valuations would constitute sound legal policy. Much of the information contained in Clark’s analysis was derived from conversations with third parties more than 20 years ago, and it was unclear from the affidavit whether Clark was even present at certain of the exchanges. U.S. v. Bertucci, __ F.3d __ (8th Cir. July 23, 2015) No. 14-3570.
1st Circuit says environmental guideline applied to defendant who illegally shipped freon into U.S. (355) Defendant operated a Canadian company that shipped freon to U.S. customers without required consumption allowances. The district court sentenced defendant under the customs tax guideline, which bases the offense level on the amount of lost customs taxes. Because no duty was payable on the importation of freon, defendant’s base offense level would have been 4. Note 2 to § 2T3.1 says that where the duties evaded does not adequately reflect the harm, an upward departure may be warranted, using an “alternative measure of the ‘duty’ evaded.” The district court, viewing excise taxes as an “alternative measure,” applied an 13-level enhancement based on the amount of federal excise taxes that U.S. customers avoided by buying from defendant. The First Circuit held that under the grouping rules, the district court should have sentenced defendant under the environmental guideline, since it carried a higher offense level (6 versus 4 under the customs guideline). See § 3D1.3(a). Also, the commentary to § 2T3.1 says that if the offense involved a contraband item covered by another guideline, a court should apply that offense guideline if it would result in a greater offense level. The district court may have incorrectly thought that the enhanced offense level of 17, reached under its alternative measure approach, was the proper comparison. However, the alternative measure may only be implemented by a departure from the guideline. Thus, the controlling offense level after the grouping was 6 under the environmental offense guideline, assuming no specific offense adjustments. Although it is possible that the court could then depart upward to impose the same sentence, this was a decision for the district court to make in the first instance. U.S. v. LeBlanc, 169 F.3d 94 (1st Cir. 1999).
1st Circuit uses fraud guideline where environmental crime was incidental by-product of fraud. (355) Defendant operated a business that recycled virgin petroleum-contaminated soil into asphalt. His permit limited the amount of contaminated soil that could be stored at the site at 3000 tons, but he soon exceeded this. He was convicted of mail and wire fraud for defrauding customers of money by representing that the company could lawfully receive and recycle customers’ virgin petroleum-contaminated soil. The First Circuit held that defendant was properly sentenced under § 2F1.1, the fraud guideline, rather than under § 2Q1.2, which covers environmental crimes. Defendant’s objective was to make money, and in the process he engaged in an environmental crime, which was an incidental by-product of his fraudulent conduct. U.S. v. Henry, 136 F.3d 12 (1st Cir. 1998).
1st Circuit finds two dumps on separate days was repetitive discharge under § 2Q1.2(b) (1)(A). (355) Defendant, the owner of a plant, gave permission to two men to remove five transformers from the plant site, including two laden with PCB. The men removed two units, including one of the PCB-laden transformers, removed the copper coils, and abandoned the transformers in a secluded gravel pit. The men repeated the process the next day with the three remaining units, one of which contained PCB. Defendant challenged a § 2Q1.2(b) (1)(A) repetitive discharge enhancement, arguing that it was mere happenstance that the two PCB-laden transformers were dumped on different days. The First Circuit held that the enhancement was proper since the two PCB-laden transformers were dumped on separate occasions. U.S. v. Catucci, 55 F.3d 15 (1st Cir. 1995).
1st Circuit finds that defendant disrupted a public utility as part of environmental offense. (355) Defendant was convicted of knowingly discharging into the city sewer system excessive amounts of zinc and cyanide. His offense level was increased by two levels, under guideline § 2Q1.2, for disrupting a public utility. The 1st Circuit found that the evidence was sufficient to support the enhancement. Witnesses at trial testified that the pollution generated by defendant’s company very likely caused serious harm to the city sewage treatment plant, killing beneficial microorganisms and rendering its operations much less efficient. A report indicated a 43 percent decrease in zinc levels after defendant’s company ceased operations. Numerous statements in the record indicated that the treatment plant spent an additional $1,000 to $10,000 per month to compensate for the damage caused by the company’s discharge. The district court did not abuse its discretion in failing to hold an evidentiary hearing on whether a public utility was disrupted. U.S. v. Wells Metal Finishing, Inc., 922 F.2d 54 (1st Cir. 1991).
2nd Circuit requires consideration of clean-up costs submitted by victim after original sentencing. (355) Defendant was convicted by a jury of Clean Air Act violations arising from his malfeasance as an air monitor for asbestos removal projects. The district court vacated one conviction, but on the government’s appeal, the Second Circuit reinstated the jury verdict, and remanded. On remand, the court imposed the same five-year term of probation. The Second Circuit ruled that the new sentence was procedurally unreasonable because the court failed to include the clean-up costs to one victim, Nancy Page. Page had submitted her estimate after a co-defendant was sentenced, so the court did not consider it when it previously calculated loss. The district court’s loss estimate was not reasonable because no explanation was given for omitting Page’s estimate. However, the court properly refused to consider new clean-up cost estimates for a hospice project that had not been submitted at the original sentencing. Where the government knew of its obligation to present evidence at the original sentencing and failed to do so, it may not offer new evidence on remand absent some justification for failing to present the evidence in the first place. The government offered no such justification. U.S. v. Desnoyers, 708 F.3d 378 (2d Cir. 2013).
2nd Circuit applies increase for “ongoing, continuous, or repetitive” discharge of asbestos. (355) Defendant Marvin and Isaac were convicted of violated work-practice standards for asbestos set out in the Clean Air Act. The Second Circuit found sufficient evidence to support a § 2Q1.2(b)(1)(A) increase for “ongoing, continuous, or repetitive” discharge of asbestos. The removal of asbestos from one address occurred during two separate one-week periods – first in December 2000, and then in February 2001, on multiple floors of the building. U.S. v. Rubenstein, 403 F.3d 93 (2d Cir. 2005).
2nd Circuit says court erred in considering state permit violations as grounds for enhancement. (355) Defendants were convicted of violating work-practice standards for asbestos set out in the Clean Air Act. They challenged a four-level enhancement under § 2Q1.2(b)(4) for the permit less transportation of a hazardous or toxic substance. The district court based the enhancement on defendants’ violation of two state regulations requiring a transporter of asbestos to have a permit and to inform landfill operators of his intent to dispose of asbestos. In U.S. v. Chau, 293 F.3d 96 (3d Cir. 2002), the Third Circuit ruled that § 2Q1.2(b)(4)’s four-level enhancement was inapplicable because the city permit violation was not “integral” to the Clean Air Act violation. The Second Circuit agreed with the Third Circuit’s approach and found that the wording of § 2Q1.2 requires that the offense “involve” activity in violation of a permit. The Clean Air Act does not require a permit for the disposal of asbestos. Therefore, defendants’ offense, violation of the clean Air Act, did not “involve” a permit violation. The district court erred by considering state permitting requirements in imposing the enhancement. U.S. v. Rubenstein, 403 F.3d 93 (2d Cir. 2005).
2nd Circuit says owner of asbestos abatement company created substantial risk of serious bodily injury to workers. (355) Defendant, the owner of an asbestos abatement company, was convicted of numerous Clean Air Act violations for directing his workers to violate the rules and regulations governing the removal of asbestos. At sentencing, there was testimony that visible emissions of asbestos fibers were released into the air during many if not all of the projects. An expert testified that for those asbestos workers who had worked without respirators on friable asbestos project with visible emissions for two to four years, there was “a very high likelihood that among them significant asbestos-related disease would occur.” The likelihood that such conditions would produce asbestos-related scarring was “far greater” than 51 percent. Nonetheless, the district court found that there was too much uncertainty to apply a § 2Q1.2(b)(2) increase for an offense that “resulted in a substantial likelihood of death or serious bodily injury.” The Second Circuit disagreed. The fact that the evidence did not establish that defendant’s workers actually suffered serious bodily injury or death was not germane. The increase applies when the offense resulted in a substantial likelihood of death or serious bodily injury. Second, it was not relevant that some of defendant’s workers may have been co-conspirators. There was clear, undisputed testimony that at least some of defendant’s workers were considerably more likely, as a result of defendant’s crimes, to develop asbestos-related disease than if they had performed the abatement under lawful conditions. U.S. v. Thorn, 317 F.3d 107 (2d Cir. 2003).
2nd Circuit holds that market value of smuggled wildlife need not approximate economic loss. (355) Defendant was convicted of Lacey Act violations for smuggling sturgeon roe into the United States without obtaining the proper permits. The district court departed downward primarily because it found that a 15-level enhancement under § 2Q2.1(b)(3)(A) based on the market value of the smuggled goods overstated the seriousness of the offense. The court did not believe that defendant’s conduct resulted in any discernable economic “loss,” and that the Fish and Wildlife Service added sturgeon roe to the list of protected wildlife only to assist Russia’s failing economy. Also, the court found that the case fell outside the “heartland” of cases involving endangered species because the statutes at issue here did not prohibit the importation of the roe, but merely regulated it. The Second Circuit reversed. First, the § 2Q2.1 market value of the endangered species is not intended to approximate the economic “loss” caused by an offense, even though § 2Q2.1 references the fraud loss table in § 2F1.1 to calculate the enhancement. The district court should not have been concerned with the economic loss resulting from defendant’s conduct. Second, the court abused its discretion in carving out a general exception for all cases involving the illegal importation of sturgeon roe. The limitation on the importation of sturgeon roe is not significantly different from the restrictions placed on the importation of other endangered species. U.S. v. Koczuk, 252 F.3d 91 (2d Cir. 2001).
2nd Circuit rejects need to show environmental contamination to warrant enhancement for ongoing discharge. (355) Defendant was involved in removing, transporting and dumping asbestos from his family’s mill. He argued that a § 2Q1.2(b)(1)(A) enhancement for an ongoing and repetitive discharge of asbestos into the environment requires a finding of actual environmental contamination. The 2nd Circuit disagreed, finding that environmental contamination can be assumed when a hazardous or toxic substance is discharged into the environment. Alternatively, the district court could infer from the circumstances of this case that the conceded asbestos discharges inevitably resulted in contamination of the environment. U.S. v. Liebman, 40 F.3d 544 (2nd Cir. 1994).
2nd Circuit applies ongoing discharge enhancement to record-keeping offenses. (355) Defendant was involved in removing, transporting and dumping asbestos from his family’s mill. He pled guilty to failing to report an environmental release to the appropriate federal agency. He argued for the first time on appeal that a § 2Q1.2(b)(1)(A) enhancement for an ongoing or repetitive discharge could not be applied to record-keeping offenses such as his. The 2nd Circuit held that the application of § 2Q1.2(b)(1) to defendant’s record-keeping offense was dependent on whether that offense “reflected an effort to conceal a substantive environmental offense.” Section 2Q1.2(b)(5) states that if a record-keeping offense reflected an effort to conceal a substantive environmental offense, a district court should use the offense level for the substantive offense. Since this issue was never raised below, the case was remanded. U.S. v. Liebman, 40 F.3d 544 (2nd Cir. 1994).
2nd Circuit affirms application of environmental guideline to mail fraud defendants. (355) Defendants were convicted of RICO and mail fraud charges in connection with their operation of an environmentally hazardous landfill. The district court sentenced them under the environmental guideline, section 2Q1.2, relying on application note 15 to the 1988 version of section 2F1.1, which provided that where the mail fraud statute is used primarily as a jurisdictional basis to prosecute other offenses, the most analogous guideline should be applied. The 2nd Circuit affirmed, but held that the application note was in conflict with the requirement in section 1B1.2(a) that the offense level be based on the offense of conviction. This conflict was resolved by a 1989 amendment (now numbered application note 13) directing the court to apply a section other than section 2F1.1 only if the other offense was “established” in the information or the indictment. The 2nd Circuit found it unnecessary to resolve the conflict because the district court stated that even if section 2F1.1 applied, it would depart upward to 26 based on the environmental harm. Since there was no indication that the mail fraud guidelines took into account the massive environmental damage proven here, a departure would not be an abuse of discretion. U.S. v. Paccione, 949 F.2d 1183 (2nd Cir. 1991).
2nd Circuit holds that bringing butane on an airplane to freebase cocaine falls within guideline for disruption of public utilities. (355) Defendant was convicted of recklessly causing the transportation of butane, a hazardous substance, in an airplane and of possession of cocaine. He claimed that the district court erred in applying guideline § 2Q1.2(b)(3) (contamination of the environment). Relying on an earlier related case, U.S. v. Moskowitz, 883 F.2d 1142 (2nd Cir. 1989), the 2nd Circuit held that § 2Q1.2(b)(3) was the proper guideline to be followed, because it was the most analogous to the offense. That section deals with disruption of public utilities, and is not limited to offenses which cause contamination of the environment. U.S. v. Moskowitz, 888 F.2d 223 (2nd Cir. 1989).
3rd Circuit holds that discharge of oil outside U.S. waters was not relevant conduct to oil bookkeeping offense inside U.S. boundaries. (355) Defendant, the Chief Engineer of a commercial ship, pled guilty to failing to keep an accurate “oil record book” on a foreign vessel, in violation of legislation implementing an international anti-pollution treaty. The district court applied a six-level sentencing enhancement under § 2Q1.3 for an ongoing, continuous, or repetitive discharge of a pollutant into the environment based on improper discharges of oily bilge waters. The Third Circuit held that Congress created criminal liability for foreign vessels and personnel only for those substantive violations that occur in U.S. ports or waters. Thus, defendant’s offense of conviction was more accurately described as “failure to maintain an accurate record book while in the navigable waters of the United States.” The panel further concluded that the discharge of oily bilge waters outside U.S. boundaries was not relevant conduct to the offense of conviction of failure to maintain an accurate oil record book inside U.S. waters. None of the improper discharges outside U.S. waters occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to evade responsibility. Thus, the district court erred in applying the six-level sentencing enhancement. U.S. v. Abrogar, 459 F.3d 430 (3d Cir. 2006).
3rd Circuit holds that Clean Air Act offense did not involve permit violation. (355) Defendant pled guilty to violating the Clean Air Act based on his attempt to illegally remove and dump asbestos from a building he owned. Section 2Q1.2(b)(4) provides for a four-level increase if “the offense involved transportation, treatment, storage, or disposal without a permit or in violation of a permit.” The government identified two possible permits involved in the case. One was a federal “permit” under 42 U.S.C. § 7413(c)(2). The other was a permit required by the City of Philadelphia before asbestos can be removed. The Third Circuit found both these “permits” insufficient to support the increase. Section 7413(c)(2) does not impose a permit requirement prior to asbestos cleanup; it only requires notice of the cleanup to the government. The Clean Air Act does not contain a permit requirement. The city’s permit requirement is its own, and operates independently of, and outside of, the federal requirement. Such a city obligation is not incorporated into federal law. U.S. v. Chau, 293 F.3d 96 (3d Cir. 2002).
3rd Circuit says illegal asbestos removal involved continuous discharge of hazardous substance. (355) Defendant pled guilty to violating the Clean Air Act based on his attempt to illegally remove and dump asbestos from a building he owned. The Third Circuit affirmed a six-level increase for a continuous or repetitive discharge of a hazardous substance. There was substantial evidence that defendant disturbed the asbestos in the building and there was evidence that some asbestos became exposed to the air. For example, the city inspector found that some opened garbage bags containing asbestos were left outside the building on the sidewalk. Further, the court found there had been a continuous discharge and this finding was entitled to deference. U.S. v. Chau, 293 F.3d 96 (3d Cir. 2002).
3rd Circuit says fully biodegradable pollution does not warrant different treatment under environmental guidelines. (355) Defendant companies discharged several pollutants into navigable waters, including raw human sewage from the toilet system of a barge on which it housed its workers. They challenged a § 2Q1.3(b)(1)(A) enhancement for an ongoing, continuous, or repetitive discharge of a pollutant because the raw human sewage was “fully biodegradable.” The Third Circuit held that untreated human sewage or fully biodegradable pollution does not warrant different treatment under the guidelines. Untreated human sewage falls within the clear meaning of “pollutant” under § 2Q1.3(b)(1)(A). U.S. v. West Indies Transport, 127 F.3d 299 (3d Cir. 1997).
3rd Circuit says applying “clarified” guideline would violate ex post facto clause. (355) In July, 1991, defendant reimported shrimp that had previously been rejected by the FDA as contaminated. At the time, § 2Q2.1(b)(3)(a) provided for an enhancement if “the market value of the specially protected fish, wildlife, or plants exceeded $2,000.” This did not apply to defendant because shrimp are not “specially protected.” However, by the time of sentencing, § 2Q2.1(b)(3)(A) had been amended to delete the requirement that the fish, wildlife or plants must be specially protected, so the district court imposed the enhancement. The 3rd Circuit reversed, holding that applying the amended guideline violated the ex post facto clause. The amendment was not a clarification, and even if it was intended to be a clarification, it could not be used to interpret the earlier guideline more harshly than it had previously been interpreted by the courts. U.S. v. Menon, 24 F.3d 550 (3rd Cir. 1994).
4th Circuit holds that environmental defendant was not eligible for aberrant behavior departure. (355) Defendant, the project manager for a bridge being constructed with federal funds, pled guilty to two environmental crimes involving illegal dredging in North Carolina’s Croatan Sound. The district court sentenced him to three years’ probation, stating that it was departing under § 5K.20 for aberrant behavior. The Fourth Circuit reversed, because defendant did not satisfy § 5K2.20’s threshold requirement of a “single criminal occurrence or single criminal transaction.” While defendant’s conduct might have had a single motivation – to remove a temporary trestle – it constituted multiple criminal acts, with each occurrence of illegal dredging representing a violation of the permit and applicable federal law. In fact, defendant was assigned an increase under U.S.S.G. § 2Q1.3(b) (1)(A) for an “ongoing, continuous and repetitive discharge and release of a pollutant.” Defendant’s offense also involved considerable planning, with an element of deception included. He attempted to avoid detection by assembling his crew off-site, at night, and on Sunday, and he pretended to close the site early, only to have his crew return at night and work under cover of darkness. The conduct was not of limited duration, persisting for about 10 days, despite repeated warnings from the Department of Transportation that it was illegal and must cease. U.S. v. Hillyer, 457 F.3d 347 (4th Cir. 2006).
4th Circuit upholds use of illegal retail price as market value of wildlife. (355) Defendant operated a store in West Virginia where he was licensed to deal in furs, hides, deer antlers, and bears. Over a two-year period, he sold black bear gall bladders (“galls”) to Virginia residents by delivering the galls to the residents in Virginia. The sale of galls in Virginia was illegal, and defendant pled guilty to violating the Lacey Act, 16 U.S.C. §§ 3372(a)(2)(A), § 3373(d)(1). Section 2Q2.1 provides for enhancement if the market value of the wildlife exceeds $2000. Defendant argued that the market value should be the price for galls in West Virginia, where such sales are legal. However, defendant believed that his customers intended to resell the galls in Virginia. Therefore, they were not buying at retail. The district court was aware that the price paid by the ultimate consumers was higher, but it had no firm evidence of what the retail price might be. The district court used the highest price for which it had reliable evidence—one customer’s average retail price of $280 per gall. The Fourth Circuit ruled that the district court did not clearly err in doing so. U.S. v. Dove, 247 F.3d 152 (4th Cir. 2001).
4th Circuit holds that relevant conduct under guidelines must be criminal conduct. (355) Defendant pled guilty to violating the Lacey Act, 16 U.S.C. §§ 3372(a)(2)(A), 3373(d)(1), by selling or offering to sell black bear gall bladders (“galls”) in Virginia, in violation of Virginia law. Defendant argued that the district court erred in including as relevant conduct defendant’s sale of 118 galls to an undercover agent because that sale occurred in West Virginia, where the sale of galls is legal. The Fourth Circuit held that relevant conduct under the guidelines must be criminal conduct. “If conduct which is not illegal may be relevant conduct because it is ‘not benign,’ this approach would involve sentencing courts in the impossibly subjective task of determining the relative benignness’ of various legally permissible acts, and ‘would allow individuals to be punished … for activity which is not prohibited by law but merely morally distasteful or viewed as simply wrong by the sentencing court.’“ Defendant’s sale of the 118 galls did not violate Virginia law because it occurred outside the boundaries of Virginia jurisdiction. Defendant’s telephone offer to the agent in Virginia did not violate Virginia law, because defendant did not agree to make the sale until the agent agreed to travel to West Virginia to pick up the galls. Because Virginia law was not violated by this sale, the 118 galls could not be included as relevant conduct. U.S. v. Dove, 247 F.3d 152 (4th Cir. 2001).
4th Circuit bases enhancement on market value of mussels, rather than defendant’s profit. (355) In violation of state law, defendant dove for mussels and sold them to a company that processed and exported the mussels to Japan. He was convicted of violating the Lacey Act, which prohibits the transportation, sale or purchase of fish or wildlife obtained in violation of state law. The 4th Circuit found that an enhancement under § 2Q2.1(b)(3) was properly based on the market value of the illegally-obtained mussels, rather than defendant’s profits from his musseling activities. U.S. v. Borden, 10 F.3d 1058 (4th Cir. 1993).
4th Circuit affirms that continuing discharge would result from effects of high water, stream flow and seasonal changes. (355) While repairing a bridge, defendant sprayed excessive amounts of “shotcrete,” a combination of sand and cement, into the creek, vegetation and trees below. The 4th Circuit upheld an enhancement under section 2Q1.3(b)(1) based on a continuing discharge. The district court could conclude a continuing discharge would result from the effects of high water and continuous stream action on solid material in the creek and from seasonal changes affecting the surrounding trees. U.S. v. Schallom, 998 F.2d 196 (4th Cir. 1993).
4th Circuit rules environmental guideline did not exceed Congressional authority. (355) The 4th Circuit rejected defendant’s claim that the guidelines for environmental offenses, particularly section 2Q1.3, exceeded the authority granted to the Sentencing Commission by imposing prison terms on first time offenders. The Commission acted well within its discretion in classifying the instant offense as a serious one. Even absent imminent threat to the public, the discharge of pollutants into the nation’s waters is a matter of great magnitude. U.S. v. Strandquist, 993 F.2d 395 (4th Cir. 1993).
4th Circuit upholds repetitive discharge enhancement. (355) Defendant was convicted of two counts of illegally discharging pollutants into navigable waters. He argued that the court could not consider multiple offenses, grouped together under the guidelines, for purposes of applying an enhancement under section 2Q1.3(b)(1)(A) for an ongoing, continuous, or repetitive discharge. Instead, he contended that a single offense must itself result in an ongoing discharge. The 4th Circuit upheld the enhancement. The discharges with which defendant was charged occurred on more than one occasion. Moreover, the offense conduct as to the second count of conviction clearly demonstrated that a repetitive discharge occurred during the second occasion. U.S. v. Strandquist, 993 F.2d 395 (4th Cir. 1993).
4th Circuit finds sufficient evidence of environmental contamination. (355) Defendant was convicted of environmental offenses for dumping raw sewage into a storm grate. He received an enhancement under section 2Q1.3(b)(1)(A) for an “ongoing, continuous, or repetitive discharge.” Under application note 4, such an enhancement assumes a discharge resulting in actual environmental contamination. The 4th Circuit affirmed the district court’s finding of contamination. Testimony indicated that the basin of a nearby marina showed dangerously high concentrations of fecal coliform on one of the days that raw sewage traveled into the basin from the grate. U.S. v. Strandquist, 993 F.2d 395 (4th Cir. 1993).
4th Circuit uses defendant’s statements to determine value of illegal tiger skin rug. (355) Defendant sold a Bengal tiger skin rug for $6,000. While conducting the sale, he told his buyer that he had a Siberian tiger skin rug for sale which was worth at least twice the value of the Bengal and that $15,000 was a good price for the rug. The 4th Circuit affirmed that the value of wildlife exceeded $20,000 under section 2Q2.1(b)(3)(A) and 2F1.1(b)(1). There was no error in relying on defendant’s conversation with the buyer to find that the Siberian rug was valued at $15,000. Although defendant was familiar with the market for tiger skin rugs, he offered no evidence of fair market value to dispute the determination. U.S. v. Clark, 986 F.2d 65 (4th Cir. 1993).
4th Circuit rejects double counting argument for environmental enhancements. (355) Defendant was convicted of illegally discharging pollutants into wetlands in violation of the Clean Water Act. He received upward adjustments under section 2Q1.3(b)(1)(A) for an “ongoing, continuous, or repetitive” discharge of a pollutant, and under section 2Q1.3(b)(4) for a discharge without a permit. The 4th Circuit rejected defendant’s argument that the enhancements constituted impermissible double counting because his base offense level had discharge of a pollutant and discharge without a permit as elements. The guidelines are explicit when double counting is forbidden, and an adjustment that clearly applies must be imposed unless the guidelines expressly excludes its application. Moreover, section 2Q1.3(b)(1)(A) differentiates punishment according to whether the discharge was “ongoing, continuous or repetitive” or occurred only on only occasion. In addition, section 2Q1.3 applies to offenses that do not involve the discharge of a pollutant or the failure to obtain a permit. U.S. v. Ellen, 961 F.2d 462 (4th Cir. 1992).
4th Circuit affirms that Clean Water Act violation is a serious offense meriting imprisonment. (355) The Sentencing Reform Act of 1984 directs the Sentencing Commission to “insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense.” Defendant was sentenced under guideline section 2Q1.3 as a result of his conviction for illegally discharging pollutants into wetlands in violation of the Clean Water Act. He contended that because section 2Q1.3 imposes a sentence of imprisonment for a non-serious offense, the district court should have declined to apply it. The 4th Circuit rejected this argument, holding that the sentencing commission acted within its discretion in classifying the environmental offense a serious one. Through the Clean Water Act and other environmental legislation, Congress “determined that harm to the environment – even absent imminent threats to public health, welfare or safety – is a public policy concern of the greatest magnitude.” U.S. v. Ellen, 961 F.2d 462 (4th Cir. 1992).
5th Circuit says finding that asbestos was not discharged outside building was clearly erroneous. (355) Defendant was convicted of violating the Clean Air Act for using untrained workers to remove asbestos from a hospital building he owned. Guideline § 2Q1.2(b)(1)(A) provides for a six-level increase for an ongoing or repetitive discharge “into the environment.” The district court refused to apply the increase, finding that the government did not prove that defendant caused a discharge of asbestos outside the hospital. The Fifth Circuit held that this finding was clearly erroneous. Asbestos must have escaped the hospital during the asbestos removal because the hospital was never sealed, much less properly sealed as required by federal regulations during seven weeks of asbestos removal. Inspectors testified to observing airborne fireproofing dust inside the hospital during their inspections and that the hospital had no containment system to prevent the dust from escaping. Moreover, one inspector testified that all the doors and many of the windows to the hospital were open, and that the wind was blowing through the hospital. Finally, workers mistaking a gas line for a water line caused an explosion that was strong enough to blow a hole in the exterior wall of the hospital. Such an explosion was surely strong enough to move fine, loose fireproofing dust. U.S. v. Ho, 311 F.3d 589 (5th Cir. 2002).
5th Circuit upholds enhancement for discharge without a permit despite proposed amendment to guideline. (355) The 5th Circuit upheld an enhancement under guideline section 2Q1.2(b)(4) for discharge without a permit, even though the offense of conviction, discharge of industrial waste, involved discharge without a permit. The district court followed section 2Q1.2(b)(4) “to the letter” when it added four levels because the offense involved a discharge without a permit. That the sentencing commission was considering an amendment to this guideline did not alter the propriety of the enhancement. U.S. v. Goldfaden, 959 F.2d 1324 (5th Cir. 1992).
5th Circuit says enhancement for repetitive discharge does not require actual environmental contamination. (355) The 5th Circuit held that an enhancement for repetitive discharge of hazardous waste under guideline section 2Q2.1(b)(1)(A) does not require proof of actual environmental contamination. Application note 5 to section 2Q2.1 should be interpreted to mean that subsection (b)(1) takes environmental contamination as a given, but allows for upward or downward departures depending on the potency, size or duration of the contamination. U.S. v. Goldfaden, 959 F.2d 1324 (5th Cir. 1992).
5th Circuit upholds adjustment based upon discharge of a hazardous substance. (355) Defendant dumped 16 drums of hazardous paint waste on a rural creek embankment and was convicted of 16 counts of disposing of hazardous waste without a permit. His offense level was increased under guideline § 2Q1.2(b)(1)(B) for an offense involving a discharge, release or emission of a hazardous or toxic substance. The notes to the guidelines state that this section assumes a discharge resulting in actual environmental contamination. The 5th Circuit rejected defendant’s contention that his enhancement was improper because the waste was discovered one day after being dumped, so there was little chance that the waste actually contaminated the environment. The district court specifically found that one of the drums was leaking and that the offense involved a discharge of a hazardous substance into the environment. Because of the toxicity of the substance involved, it was proper for the district court to infer that there had been environmental contamination from the one-day leak. U.S. v. Sellers, 926 F.2d 410 (5th Cir. 1991).
6th Circuit approves enhancement for discharging asbestos into the environment. (355) Defendants were convicted of violating the Clean Air Act, 42 U.S.C. § 7413(c), based on their demolition of a factory site containing asbestos. The district court applied a six-level enhancement under § 2Q1.2(b)(1)(A) for “an ongoing, continuous, or repetitive discharge, release, or emission of a hazardous or toxic substance … into the environment.” The Sixth Circuit upheld the enhancement, ruling that the evidence showed that asbestos was released into the environment. The initial survey of the site performed by a certified asbestos surveying company indicated that the site contained far more asbestos than the company that worked on the site was hired to abate. Multiple witnesses testified that they saw workers remove material likely containing asbestos without wetting it, instead “dump [ing] it out of the back side of the building” and collecting it into trucks for removal. Materials lying on the ground at the site tested positive for asbestos after demolition had occurred. The fact that tests showed that the air did not contain asbestos, did not require reversal. None of the tests were performed at the time the material was removed. U.S. v. Mathis, 738 F.3d 719 (6th Cir. 2013).
6th Circuit approves increase for asbestos exposure causing “substantial likelihood of death or serious bodily injury.” (355) Defendants were convicted of violating the Clean Air Act, 42 U.S.C. § 7413(c), based on their demolition of a factory site containing asbestos. The district court applied a nine-level enhancement under § 2Q1.2 (b)(2) for “a substantial likelihood of death or serious bodily injury.” The increase was based on days of testimony and argument about the potential health effects of asbestos exposure on the site’s salvage and demolition workers. The Sixth Circuit upheld the § 2Q1.2(b)(2) increase, rejecting defendants’ argument that a court must find that someone suffered substantial exposure to a hazardous material for a substantial period of time. Defendants improperly relied on a products liability case, which involves a different inquiry. A district court should apply the § 2Q1.2(b)(2) enhancement if the defendant’s offense made it considerably more likely that a person would die or develop a serious bodily injury. Actual death or serious bodily injury need not occur. U.S. v. Mathis, 738 F.3d 719 (6th Cir. 2013).
6th Circuit rejects downward departure based on cumulative application of enhancements. (355) Defendant, the superintendent of a city wastewater treatment plant, was convicted of violating the Clean Water Act. The district court enhanced defendant’s base offense level by four levels for both § 2Q1.3(b)(1)(B) and § 2Q1.3(b) (4), as the offense involved “a discharge” and “a discharge … in violation of a permit.” In doing so, the court specifically stated that applying both specific offense characteristics did “not constitute double counting.” The court later justified a four-level downward departure in part on the application of both enhancements, stating that “all discharges … necessarily must be accomplished in violation of or absent a permit. Where a single discharge occurred, the scoring of both these factors puts undue weight on these offense characteristics in this case.” The Sixth Circuit rejected this reasoning. Section 2Q1.3(b)(1)(B) and § 2Q1.3(b)(4) are two distinct offense level adjustments within an offense guideline and are intended to be applied cumulatively. The application of both enhancements is either double counting or it is not. The district court cannot first apply both specific offense characteristics and then revisit its decision when deciding whether to grant a downward departure. U.S. v. Kuhn, 345 F.3d 431 (6th Cir. 2003).
6th Circuit holds that record-keeping offense did not involve substantive environmental offense. (355) Defendants, water district employees, submitted reports containing falsified turbidity measurements to the Kentucky Division of Water. Turbidity is the amount of suspended particulate matter in post-treatment water. In setting defendants’ base offense level at six, the district court found that choosing between § 2F1.1 and § 2Q1.3 was unnecessary because a § 2Q1.3(b)(1)(B) enhancement for the release of a pollutant did not apply. The court ruled that turbid water cannot be considered a “pollutant.” The Sixth Circuit found it unnecessary to decide whether over-turbidity is a pollutant for purposes of § 2Q1.3, ruling that even if it is, the district court did not err in refusing to apply the enhancement. Defendants’ record-keeping offense was not an effort to conceal a “substantive environmental offense” under the Safe Drinking Water Act or any other federal statute. The only substantive offense involved here was the false statements offense. Under either § 2F1.1 or § 2Q1.3, if applied, the defendants’ base offense level for their criminal conduct would be six. U.S. v. White, 270 F.3d 356 (6th Cir. 2001).
6th Circuit holds that $1.5 million cleanup is substantial regardless of who pays for it. (355) Defendant was convicted of illegally storing and disposing of hazardous waste. Section 2Q1.2(b)(3) provides for a four-level enhancement if the offense “resulted in disruption of public utilities, evacuation of a community, or if cleanup required a substantial expenditure.” The cleanup of defendant’s facility cost $1.5 million. A previous Sixth Circuit case held that a cleanup costing more than $100,000 was substantial. See U.S. v. Bogas, 920 F.2d 363 (6th Cir. 1990). Defendant argued that if he had been able to pay the $1.5 million, his sentence would not have been enhanced. The Sixth Circuit disagreed, since the enhancement depends on whether the “cleanup required a substantial expenditure,” regardless of who pays for it. U.S. v. Williams, 195 F.3d 823 (6th Cir. 1999).
6th Circuit holds environmental guideline is consistent with enabling legislation. (355) Defendant was convicted of knowingly storing and disposing of hazardous waste without a permit. He argued for the first time on appeal that § 2Q1.2 was inconsistent with the Sentencing Guidelines’ enabling legislation because it violated the mandate in 28 U.S.C. § 994(m) that, as a starting point, the Commission ascertain the average sentence imposed in each category of cases before creating the guideline. The Sixth Circuit rejected this challenge. Defendant did not identify a single court that has questioned the validity of this guideline as applied to a conviction under any environmental statute. There is no requirement that the Sentencing Commission keep records of the “average sentences.” Although the Commission is required to ascertain the average sentences imposed in different categories of cases, the Commission is not bound by such averages. Congress and the Sentencing Commission have determined that the environmental offenses covered by § 2Q1.2 are serious offenses. U.S. v. Kelley Technical Coatings, 157 F.3d 432 (6th Cir. 1998).
6th Circuit holds enhancement for discharge without a permit is not double counting. (355) Defendant was convicted of knowingly storing and disposing of hazardous waste without a permit. The district court applied a § 2Q1.2(b)(4) enhancement for discharge without a permit. Defendant argued that this constituted double counting because his conduct of storing and disposing of hazardous waste without a permit, was punished twice–once under § 2Q1.2(a) for his statutory violation, and then again under § 2Q1.2(b)(4). The Sixth Circuit rejected the double counting argument. Section 2Q1.2 governs sentencing for a wide range of environmental crimes involving hazardous or toxic substances. Section 2Q1.2(a) contains the base offense level for all of these offenses, including those that do not involve failure to obtain a permit. Thus, the enhancement under § 2Q1.2(b) for storage or disposal without a permit does not provide a second penalty for the same conduct. U.S. v. Kelley Technical Coatings, 157 F.3d 432 (6th Cir. 1998).
6th Circuit holds that required bacteria kills disrupted public utility. (355) Defendant pled guilty to knowingly discharging pollutants into a public sewer system. Defendant’s offenses required four major bacteria kills at the local treatment plant. The 6th Circuit held that the district court erred in failing to increase defendant’s offense level under § 2Q1.2(b)(3) for disruption of a public utility. The court agreed that there was a distinction between a disruption and an impact on a public utility. However, here there was clearly a disruption: defendant’s discharges caused several bacteria kills at the treatment plant and burned two plant employees. More importantly, defendant’s discharges caused the treatment plant to violate its clean water permit, and made it unable to perform its essential function. The expenditure of substantial sums of money is not required to prove that a disruption of a public utility has occurred. U.S. v. Rutana, 18 F.3d 363 (6th Cir. 1994).
6th Circuit agrees that crocodiles were imported for a commercial purpose. (355) Defendants illegally imported 47 baby Dwarf and Nile crocodiles into the United States. The 6th Circuit upheld the district court’s conclusion that the importation was for a commercial purpose under section 2Q2.1(b)(1). There were several discussions among different parties concerning selling the crocodiles to customers of an import company for between $75 and $150 each. U.S. v. Stubbs, 11 F.3d 632 (6th Cir. 1993).
6th Circuit directs district court to reconsider fine for each violation of Clean Water Act. (355) Defendant was convicted of 18 counts of violating the Clear Water Act. In addition to other punishment, the district court imposed a fine in the amount of $90,000 on defendant, or $5,000 per violation. The case was remanded for resentencing on other grounds. In so doing, the 6th Circuit suggested the district court reconsider whether to fine defendant on all 18 counts of conviction. In setting the fine, the district court was acting under the erroneous impression that the $5,000 per violation was a mandatory minimum. While the total amount of the fine was technically proper, and while the guidelines state that some fine shall be imposed in all cases, the statute under which defendant was sentenced does not require a fine for each violation. Rather, 33 U.S.C. § 1319(c)(2) gives the sentencing court the option of imposing a fine or imprisonment, or both. U.S. v. Rutana, 932 F.2d 1155 (6th Cir. 1991).
6th Circuit rejects calculation of clean-up costs of environmental contamination. (355) Defendant pled guilty to charges of not reporting the release of hazardous wastes into the environment. Defendant was sentenced under guideline § 2Q1.2, which provides for a four level increase in offense level if cleanup required a “substantial expenditure.” Although the government argued that the required clean-up was $350,000, the district court accepted defendant’s figure of $10,300, and did not increase his offense level. The 6th Circuit found that the district court’s calculation of the clean-up costs was clearly erroneous. Clean-up costs recoverable under CERCLA provide a useful measure of the clean-up expenditure to be taken into account under the guidelines. Defendant’s estimate was by a non-certified contractor of what it would cost for him physically to excavate the pit where the hazardous material had been buried. The estimate did not include the cost of disposing properly of the estimated material, the cost of protective measures for the workers, and the cost of testing to find out what substances were buried in the pit. U.S. v. Bogas, 920 F.2d 363 (6th Cir. 1990).
6th Circuit reverses district court’s interpretation of environmental guideline. (355) Defendant pled guilty to charges of not reporting the release of hazardous wastes into the environment. Defendant was sentenced under guideline § 2Q1.2, which provides for a four level increase in offense level if the offense involves release of a hazardous substance. The commentary notes that this subsection assumes a discharge into the environment resulting in actual environmental contamination. The district court refused to increase defendant’s offense level under this subsection, finding that the government had failed to prove actual environmental contamination. The 6th Circuit reversed, finding that the district court misinterpreted the guidelines. Although the commentary “illuminates the intent of the section’s drafter,” the express command of a guideline section may not be countermanded by the commentary. The language of guideline § 2Q1.2 does not differentiate between a release that causes environmental contamination and one that does not. U.S. v. Bogas, 920 F.2d 363 (6th Cir. 1990).
7th Circuit says that infestation enhancement does not require proof that wildlife was actually diseased. (355) Defendant illegally imported pancake tortoises into the United States. He challenged a § 2Q2.1(b)(2) enhancement for an offense that created a significant risk of infestation or disease transmission potentially harmful to humans. The district court, relying on health regulations prohibiting the importation of turtles with a carapace of less than four inches, found that defendant’s importation of tortoises with a carapace of less than four inches created a significant risk of infestation or disease to humans. The Seventh Circuit affirmed, holding that § 2Q2.1(b)(2) does not require the government to establish that the wildlife involved were actually diseased or infested. Where a public health regulation forbids the importation of a whole category of animals due to the risk that they spread illness, a court can reasonably conclude that the illegal importation of such animals creates a significant risk of infestation or disease. U.S. v. Eyoum, 84 F.3d 1004 (7th Cir. 1996).
7th Circuit uses fair market value rather than “smuggler’s price” to calculate market value. (355) Defendant illegally imported pancake tortoises into the United States. The district court calculated a $298 value per tortoise under § 2Q2.1(b)(3)(A) by averaging price lists for the tortoises. Defendant argued that the court should have used the $50 per tortoise “smuggler’s price” he was to receive, rather than the fair market value of the tortoises. The Seventh Circuit upheld the use of the fair market value rather than the “smuggler’s price” to calculate market value. Note 4 states that when information is reasonably available, “market value” shall be based on fair‑market retail price. Where this is difficult to determine, the court may make a reasonable estimate. Although the price lists used by the court included prices for tortoises that were “captive raised” and “captive bred,” the use of the term “captive born” was a common ruse among dealers for selling tortoises for which they did not have legal papers. Defendant’s challenge to the use of wholesale prices was strange, since he did not deny that wholesale prices are generally lower than retail prices. U.S. v. Eyoum, 84 F.3d 1004 (7th Cir. 1996).
8th Circuit rules multiple convictions in single case triggered increased penalty under wildlife statute. (355) Defendant pled guilty to two counts of illegally taking bald and golden eagles, in violation of 16 U.S.C. § 668, and received a felony sentence of 16 months’ imprisonment. A single violation of § 668 is a misdemeanor, but “in the case of a second or subsequent conviction” a defendant can be fined up to $10,000 and sentenced up to two years. Further, “the commission of each taking … with respect to a bald or golden eagle shall constitute a separate violation of this section.” § 668(a). Defendant argued that the statute’s enhanced penalty is triggered only when the commission of a second offense follows a prior conviction, and therefore the district court erred in imposing a felony sentence upon his plea to the second count of a single indictment. The Eighth Circuit found this argument foreclosed by Deal v. U.S., 508 U.S. 129 (1993). Deal addressed whether multiple convictions in a single proceeding were “second or subsequent convictions” that triggered the enhanced penalty provision of 18 U.S.C. § 924(c). The Supreme Court rejected the contention that § 924(c)’s enhancement applied only when a second offense followed a prior conviction. There is no material difference between the language in § 668 and the language in § 924(c). U.S. v. Street, 257 F.3d 869 (8th Cir. 2001).
8th Circuit uses value of live birds as value of eggs stolen from the wild. (355) Defendant took bird eggs from the wild in Canada and imported them into the U.S. The PSR valued the eggs under § 2Q2.1(b)(3)(A) at $54,100, which equaled the value of the live birds that would be hatched from the eggs. Defendant argued that the eggs had little or no value themselves and have a high mortality rate in the wild so not every egg would necessarily hatch into a live bird. The district court adopted the PSR. On appeal, defendant argued that the court should have held an evidentiary hearing. The Eighth Circuit found no evidentiary hearing was necessary. The fair‑market retail value of the eggs was “difficult to ascertain,” and thus the court was permitted to make a reasonable estimate using any reliable information. The market value adopted by the PSR was not based on unreliable or undisputed facts, but from defendant’s own price list for live birds. Defendant’s legal argument that his was the most reasonable theory did not require an evidentiary hearing because the court was able to make a reasonable estimate based on undisputed facts. U.S. v. Oehlenschlager, 76 F.3d 227 (8th Cir. 1996).
8th Circuit, despite acquittal, upholds enhancement for discharging hazardous substance. (355) Defendant was convicted of illegally transporting and storing hazardous waste. He argued that it was improper to enhance his sentence under § 2Q1.2(b)(1)(B) for discharging a hazardous substance because the jury acquitted him of this. The 8th Circuit held that defendant’s acquittal did not preclude the enhancement, given the different standards of proof. It was undisputed that the drums were leaking. Even assuming that actual environmental contamination was required, the enhancement was proper. Because the waste was volatile, the air carried the waste’s organic compound. Also, the drums were leaking onto the floor, which had a floor drain that led to a storm sewer that led to a creek. U.S. v. Freeman, 30 F.3d 1040 (8th Cir. 1994).
9th Circuit upholds increase for risk of death or bodily injury in environmental case. (355) Defendant was convicted of conspiracy to violate the Clean Air Act by failing to abate asbestos. At sentencing, the district court enhanced defendant’s offense level by nine because it found that defendant’s offense created a substantial likelihood of death or serious bodily injury. Trial evidence showed that because defendant did not take proper steps to identify and abate asbestos in a condominium project that his company owned, a work crew removing ceilings in the project did not wear proper respirators and were exposed to asbestos dust that far exceeded industry-approved levels. At sentencing, defendant presented expert testimony that the kind of asbestos found in the ceilings was less toxic than other forms of asbestos. The Ninth Circuit held that in light of contradictory evidence, the district court did not commit clear error in imposing the enhancement. U.S. v. Yi, 704 F.3d 800 (9th Cir. 2013).
9th Circuit upholds organizer enhancement in environmental case. (355) At defendant’s sentencing for conspiring to violate the Clean Air Act by failing to abate asbestos in a condominium project that his company bought, the district court found that defendant was an organizer or leader of the scheme and enhanced his sentence under § 3B1.1. Evidence at trial showed that defendant was heavily involved in decision making at the condominium project, that he had experience in project management, that he instructed a subordinate to obtain bids for abating the asbestos and made the decision not to abate the asbestos because of cost, and that defendant instructed subordinates to create a contract for removing the asbestos without taking proper precautions. The Ninth Circuit upheld the enhancement. U.S. v. Yi, 704 F.3d 800 (9th Cir. 2013).
9th Circuit affirms upward variance for setting nine forest fires. (355) Defendant pleaded guilty to nine counts of setting forest fires, in violation of 18 U.S.C. § 1855. The district court calculated his offense level as 23, which at criminal history category IV, yielded a sentencing range of 70-87 months. At sentencing, the court imposed a sentence of 120 months. The court relied on defendant’s recidivism, his admission that he got a “thrill” out of setting forest fires, his drug abuse, a mental health professional’s finding that defendant was dangerous, the $7 million in losses caused by the fires, the damage to national forests, and the need to protect the public from defendant. The Ninth Circuit held that the district court properly weighed the factors set forth in 18 U.S.C. § 3553(a) and that the sentence was not unreasonable. U.S. v. Warr, __ F.3d __ (9th Cir. July 2, 2008) No. 07-30125.
9th Circuit includes fire-fighting costs in calculating offense level for setting forest fires. (355) Defendant pleaded guilty to nine counts of wildland arson, in violation of 18 U.S.C. § 1855. In pleading guilty, defendant admitted that he sometimes set the fires with the intent to cause widespread destruction. The district court calculated his offense level under § 2B1.1. Applying that guideline, the district court set the loss caused by defendant’s offense based largely on the costs of suppressing the fires he started. The Ninth Circuit held that the fire suppression costs constituted “reasonably foreseeable pecuniary harm that resulted from the offense” within the meaning of § 2B1.1 and that the district court properly included those costs in calculating the loss caused by defendant’s offense. U.S. v. Warr, __ F.3d __ (9th Cir. July 2, 2008) No. 07-30125.
9th Circuit holds that cleanup enhancement should be based on all reliable expenses caused by offense. (355) The environmental offense guideline, § 2Q1.3(b)(3), provides for an enhancement if the cleanup necessitated by the offense “required a substantial expenditure.” Defendant’s illegal diversion of a waterway released mine tailings into the waterway. Although the offense caused $834,000 in losses, the district court refused to apply the enhancement because the cleanup was required by CERCLA, not the statute of conviction. The Ninth Circuit disagreed and held that in deciding whether to apply § 2Q1.3(b)(3), the district court must include all reliable cleanup expenses, regardless of whether they are incurred pursuant to the offense of conviction. U.S. v. Phillips, 367 F.3d 846 (9th Cir. 2004).
9th Circuit finds evidence sufficient for repetitive discharge enhancement. (355) The guideline for Clean Water Act violations, § 2Q1.2(b)(1)(A), provides for an enhancement if the offense resulted in “an ongoing, continuous, or repetitive discharge.” The commentary explains that the discharge must also result in environmental contamination. The Ninth Circuit upheld imposition of this enhancement on a defendant convicted of illegally discharging wastewater contaminated with asbestos based on evidence that the asbestos removal generated substantial waste over a long period, that defendant regularly washed asbestos waste down drains into the ocean, and that defendant removed filters to prevent improper waste from clogging drains. U.S. v. Technic Services, Inc., 314 F.3d 1031 (9th Cir. 2002).
9th Circuit affirms increases for releasing hazardous substance and creating risk of serious bodily injury. (355) Defendant was convicted of removing asbestos without complying with regulations, in violation of the Clean Air Act. The district court increased the offense level under § 2Q1.2(b)(1)(B) because the offense involved the “discharge, release, or emission of a hazardous waste or toxic substance,” and under § 2Q1.2(b)(2) because the offense resulted in a substantial likelihood of death or serious bodily injury. The Ninth Circuit upheld both enhancements. It found that evidence showing that defendant allowed the release of asbestos dust into the air and nearby drains supported the finding that defendant caused the release of a hazardous substance. The court also found that because asbestos is a recognized health hazard that can cause a number of serious diseases, the district court properly found that defendant caused a risk of serious injury. U.S. v. Pearson, 274 F.3d 1225 (9th Cir. 2001).
9th Circuit bars restitution for Title 42 offenses, and holds false statement did not injure private victim. (355) Defendant was convicted of improperly storing and disposing of hazardous waste, in violation of 42 U.S.C. § 6928. Relying on 18 U.S.C. § 3663, the district court ordered him to pay restitution to a worker who was seriously injured during the improper waste disposal. The Ninth Circuit held that the restitution order constituted plain error because § 3663 authorizes restitution only for violations of Title 18. The indictment’s reference to the aiding and abetting statute, 18 U.S.C. § 2, did not bring the Title 42 offenses within the restitution statute. The court also held that the restitution order could not be upheld based on the defendant’s false statements conviction under 18 U.S.C. § 1001 because the worker was not a victim of that offense. Nevertheless, the panel later amended this opinion to state that the district court “may consider further amending the sentence by imposing a term of supervised release with a condition requiring restitution, pursuant to … § 5E1.1(a)(2).” U.S. v. Elias, 269 F.3d 1003 (9th Cir. 2001).
9th Circuit holds hazardous waste was discharged “into the environment,” even though treatment plant neutralized it. (355) Guideline § 2Q1.2(b)(1)(A) says “[i]f the offense resulted in an ongoing, continuous, or repetitive discharge, release, or emission of a hazardous or toxic substance or pesticide into the environment, increase by six levels” (emphasis added). In the present case, the district court refused to apply the increase because defendant discharged benzene into the Los Angeles sanitary sewer system where it was rendered nontoxic at the municipal treatment plant. The Ninth Circuit reversed, holding that the government’s failure to prove that the effluent from the treatment plant contained hazardous levels of benzene was not controlling. The discharge into the sewer was “into the environment.” The court acknowledged that under application note 5, the district court on remand will have discretion to depart two levels in either direction depending on the harm resulting from the discharge. U.S. v. Van Loben Sels, 198 F.3d 1161 (9th Cir. 1999).
9th Circuit holds violation of state sanitary shellfish laws created significant risk of infestation or disease. (355) Defendant pled guilty to violations of the Lacey Act stemming from the illegal harvest of Geoduck clams under 16 U.S.C. §§ 3372-3373. The district court increased his sentence by two levels under guideline § 2Q2.1(b)(2) for creating a significant risk of infestation or disease. On appeal, defendant argued that a violation of the sanitary shellfish laws does not automatically, without specific facts, support a finding that he created a significant risk of disease. The Ninth Circuit rejected this argument, agreeing with the Seventh Circuit’s opinion in U.S. v. Eyoum, 84 F.3d 1004, 1009 (7th Cir. 1996) that by violating the state’s sanitary shellfish laws, defendant by definition created a significant risk of infestation or disease. The government was not required to prove that any of the clams were actually contaminated or caused illness. U.S. v. Narte, 197 F.3d 959 (9th Cir. 1999).
9th Circuit rules double counting was proper in environmental case. (355) In U.S. v. Reese, 2 F.3d 870, 894-95 (9th Cir. 1993), the Ninth Circuit relied on § 1B1.3(a)(3) for the proposition that double counting is permissible under the guidelines when it is “necessary to make the defendant’s sentence reflect the full extent of the wrongfulness of his conduct.” In other words, if a certain characteristic of an offense is not accounted for in computing the base offense level, “double counting” is not only permissible but necessary. In the present case, the Ninth Circuit held that when the sentencing commission decided upon a level of 6 for offenses involving conservation and wild life, it did not account for conduct that created a significant risk of infestation or disease. Thus, it was proper to use the defendant’s conduct twice in applying the enhancement and in arriving at the final offense level which best captured the wrongfulness of his acts. U.S. v. Narte, 197 F.3d 959 (9th Cir. 1999).
9th Circuit says $32,000 for environmental cleanup was not “substantial.” (355) Guideline § 2Q1.2(b)(3) provides for a four-level increase “[i]f the offense resulted in disruption of public utilities or evacuation of a community, or if cleanup required a substantial expenditure.” In this case, the district court concluded that $32,000 in cleanup expenses was “substantial” because that amount would be a substantial expenditure for a reasonable person. On appeal, the Ninth Circuit reversed, holding that the word “substantial” should be read in the context of the associated phrases which distinguish run-of-the-mill contaminations from those so serious as to disrupt utilities or require evacuation of communities. “For an expenditure to be ‘substantial’ in this context, it ought to be of the same order of magnitude in its impact on the community.” At the least, “it should be much greater in economic impact than the run-of-the-mill contamination.” “If a mid-five figure cleanup were ‘substantial’ for purposes of the adjustment, it is hard to imagine a storage violation which would not require the adjustment.” The sentence was vacated. U.S. v. Merino, 190 F.3d 956 (9th Cir. 1999).
9th Circuit upholds supervisory role even though supervisee was not prosecuted. (355) Under Guideline § 3B1.1, Application Note 1, a participant in the offense is “a person who is criminally responsible for the commission of the offense, but need not have been convicted.” See U.S. v. Cyphers, 130 F.3d 1361, 1363 (9th Cir. 19997). Here, defendant was a supervisor of a railroad construction project in Alaska when a backhoe operator ruptured an oil pipeline that ran through the construction area. Defendant was convicted of violating the Clean Water Act, when oil from the pipeline polluted a nearby river. The Ninth Circuit held that the district court did not clearly err in increasing defendant’s sentence by two levels because, even though the backhoe operator was not prosecuted, he was nonetheless a participant in the criminal activity, and defendant was the supervisor of the project. U.S. v. Hanousek, 176 F.3d 1116 (9th Cir. 1999).
9th Circuit refuses to reduce loss by value of legitimate services rendered to the victim. (355) The City of San Diego paid defendant’s company $566,000 to transport sewage sludge and compost it in Thermal, California. Instead, defendant transported the sludge to Imperial County and spread it on farmland. Defendant was convicted of mail fraud and environmental violations, and the district court calculated the loss at $566,000. Defendant objected, arguing that the City lost no money and benefited from having the sludge hauled away. Relying on a similar case, U.S. v. Frank, 156 F.3d 332, 335-36 (2d Cir. 1998), the Ninth Circuit upheld the loss finding, noting that the value to the city from removing the sludge was offset by the harm caused by the company’s failure to compost and legally dispose of it. Defendant’s actions exposed the city to potential cleanup liability and the loss of its permit. The district court did not clearly err in using the invoice amount for the shipments as a “reasonable, if rough, estimate of the intended loss.” U.S. v. Cooper, 173 F.3d 1192 (9th Cir. 1999).
9th Circuit upholds enhancement for discharging a pollutant. (355) The Ninth Circuit upheld the district court’s ruling that because the Clean Water Act defines sewage sludge as a “pollutant,” 33 U.S.C. § 1362(6), defendant properly received a six level enhancement for discharging a pollutant. See USSG § 2Q1.3(b) (1)(A). The district court was correct that the statutory definition of “pollutant” controls. A substance can be classified as a pollutant even though it is not designated as hazardous. Thus, although the sludge here may have been Class A, non-hazardous and permissible under appropriate conditions to be applied on farm land, this did not avoid application of the guideline for non-hazardous pollutants when it was placed on farmland without a permit. U.S. v. Cooper, 173 F.3d 1192 (9th Cir. 1999).
9th Circuit increases sentence for environmental discharge “in violation of a permit.” (355) The district court applied a four-level enhancement for “a discharge . . . in violation of a permit.” USSG § 2Q1.3(b)(4). Defendant argued that the enhancement should not apply because he was not required to secure a permit. The Ninth Circuit rejected a similar argument in U.S. v. Ferrin, 994 F.2d 658, 664-65. Here, as in Ferrin, defendant was convicted of a crime whose elements included violating a condition of a permit. U.S. v. Cooper, 173 F.3d 1192 (9th Cir. 1999).
9th Circuit upholds supervisory role based on relevant conduct in environmental crime. (355) Defendant was licensed to clean up environmental contamination from leaking underground gasoline storage tanks. He submitted false test reports, some from labs that did not exist, others forged on legitimate laboratory letterhead. He also directed his employees to take samples from areas that would show sites to be free from contamination, when they were not. In one case, he directed his employees to drain contaminated water from holding tanks directly into the storm sewers during the night without sampling, testing or obtaining a permit. He pleaded guilty to submitting false reports in violation of 18 U.S.C. § 1001 and his sentence was increased by two levels under guideline § 3B1.1(c) for his role in supervising his employees. On appeal, the Ninth Circuit affirmed the supervisory role enhancement. Even though the employees did not participate in the crime charged—submitting false statements—the district court properly considered his supervisory role over others in the “relevant conduct.” Moreover the district court specifically found the employees were knowing participants who knew that their conduct was unlawful. U.S. v. Cyphers, 130 F.3d 1361 (9th Cir. 1997).
9th Circuit finds that increase under §2Q1.2(b)(1) requires actual contamination of environment. (355) Defendant, a civilian employee and supervisor of seven hazardous waste handlers for the Navy, pled guilty to aiding and abetting the illegal disposal of hazardous waste by supervising the dumping of isocyanate in dumpsters. The government appealed the district court’s refusal to enhance under §2Q1.2(b)(1) which provides for a 4 level increase for the “discharge, release or emission” of a hazardous substance into the environment. The 9th Circuit found that Note 5 to §2Q1.2 applied and required a showing that some amount of hazardous substance in fact contaminated the environment. A finding that the hazardous waste came into contact with land or water or was released into the air will justify the 4 or 6 level increase. Defendant’s guilty plea did not establish there had been a discharge nor was there any actual contamination of soil or water because the authorities intervened. However, the case was remanded for the district court to make findings concerning the gas released into the air when defendant combined the isocyanate with another chemical in preparation for the dumping. U.S. v. Ferrin, 994 F.2d 658 (9th Cir. 1993).
9th Circuit requires 4 level increase for lack of waste permit, but departure is possible. (355) Subsection (b)(4) of §2Q1.2 requires an increase of 4 levels if the hazardous waste disposal occurred without a permit or in violation of a permit. Application Note 8 permits an upward or downward departure of 2 levels depending on the offense and risks associated with it. Defendant pled guilty to illegal disposal of hazardous waste while he was a civilian supervisor in charge of hazardous waste handlers for the Navy. Neither defendant nor the Navy had a permit. The district court adjusted upward only 2 levels rather than the required 4 levels after finding the lack of a permit was not defendant’s fault. The 9th Circuit reversed, concluding that the district court was obligated to enhance by 4 levels but finding that it may depart downward from the 4 level increase under Note 8. U.S. v. Ferrin, 994 F.2d 658 (9th Cir. 1993).
9th Circuit remands for findings on whether hazardous waste supervisor abused position of trust. (355) Defendant was convicted of aiding and abetting the illegal disposal of hazardous waste. At the time the offense was committed defendant was a civilian employee of the Navy supervising hazardous waste handlers. The district court rejected the government’s request for an increase under §3B1.3 for abuse of position of trust finding “[t]hat doesn’t fly with me. This isn’t an abuse of trust situation in my judgment.” The 9th Circuit remanded for the district court to consider whether defendant took advantage of his supervisory role at the waste facility to commit a difficult to detect wrong. The fact defendant was not a very high ranking employee would not preclude finding he was in a position of trust. U.S. v. Ferrin, 994 F.2d 658 (9th Cir. 1993).
9th Circuit says market value of “specially protected” and “ordinary” animals is based on “the price of the hunt.” (355) The market value formula (1) determines the defendant’s standard outfitting fee and (2) multiplies that fee by the number of animals taken. Here, the defendant’s standard fee was $1500 and 14 animals were taken. Thus, the total market value of the animals was $21,000. Based on the table in section 2F1.1 the defendant’s offense level was increased by four levels. U.S. v. Atkinson, 966 F.2d 1270 (9th Cir. 1992).
10th Circuit holds that value of poached deer was value of animal itself, not cost of guided hunt. (355) Defendants sold guided deer hunts to out-of-state hunters, and encouraged their clients to violate state hunting laws. They pled guilty to conspiring to sell and transport poached deer in violation of the Lacey Act, 16 U.S.C. §§ 3372(a)(2)(A) and 3373(d). For poaching offenses, § 2Q2.1 provides for an increase in offense level based on the “market value of the fish, wildlife, or plants.” The district court found that the proper valuation of the deer was the amount that a hunter paid for a guided hunt. The Tenth Circuit disagreed, holding that the “fair-market retail price” of the deer was the price of the animal itself, not the price of an expedition to hunt the animal. The court could not use the cost of the guided hunt as a reasonable estimate of the animals’ value. The record did not support the district court’s apparent finding that the retail price was difficult to ascertain. U.S. v. Butler, 694 F.3d 1177 (10th Cir. 2012).
10th Circuit holds that ability to obtain permit not prerequisite to application of § 2Q1.3(b) (4). (355) Defendant was convicted of violating the Clean Water Act by negligently discharging a pollutant into the Colorado River. Although the jury specifically found that defendant discharged a pollutant without a permit, the district court refused to apply a § 2Q1.3(b)(4) enhancement for “discharge without a permit,” ruling that the enhancement can apply only where a permit is available for the activity but the defendant failed to obtain one. The Tenth Circuit ruled that the ability to obtain a permit is not a prerequisite to the application of § 2Q1.3(b)(4), and therefore the district court erred as a matter of law in declining to apply the enhancement. U.S. v. Ortiz, 427 F.3d 1278 (10th Cir. 2005).
10th Circuit holds that negligent discharge supported repetitive discharge enhancement. (355) Defendant was convicted of violating the Clean Water Act by negligently discharging a pollutant into the Colorado River. At sentencing, the district court declined to apply an enhancement for “ongoing, continuous, or repetitive discharge” under § 2Q1.3(b)(1)(A), finding that the government failed to prove that defendant discharged pollutants. However, defendant was convicted of discharging pollutants on two dates: May 29, 2002 and June 18, 2002. The Tenth Circuit held that these two convictions sufficed for application of the § 2Q1.3(b)(1)(A) enhancement, and the district court erred in refusing to apply the increase. The commentary clearly contemplates application of the enhancement to sentences for negligent discharge violations, but authorizes downward departures in such circumstances. U.S. v. Ortiz, 427 F.3d 1278 (10th Cir. 2005).
10th Circuit upholds increase for causing substantial likelihood of death or serious bodily injury. (355) Defendant operated a corporation that hauled hazardous waste and cleaned drums of hazardous waste generated by other companies. He pled guilty to knowingly storing hazardous waste without a permit at his company’s facility. Guideline § 2Q1.2(b)(2) provides for a nine-level increase if an offense “resulted in a substantial likelihood of death or serious bodily injury.” He argued that, in order to apply the enhancement, the district court was required to make a separate finding that a fire was substantially likely to occur at the facility, and that, despite the absence of a permit, his facility was in compliance with all necessary safety precautions. The Tenth Circuit affirmed the enhancement. The guideline required the court to make the finding that the offense resulted in a substantial likelihood of death or serious bodily injury, and the risk of fire was necessarily subsumed within this finding. As to defendant’s claim that the facility was safe, the district court heard defendant’s testimony on this point when it made its finding of a substantial likelihood of serious injury. The court’s finding suggested that it rejected defendant’s assertion that the facility was safe. U.S. v. Dillon, 351 F.3d 1315 (10th Cir. 2003).
10th Circuit says increase for storing hazardous waste without a permit was not double counting. (355) Defendant pled guilty to knowingly storing hazardous waste without a permit at his company’s facility, in violation of 42 U.S.C. § 6928(d)(2)(A). Guideline § 2Q1.2(b)(4) provides for a four-level increase where a defendant’s offense involved “storage … without a permit.” Defendant argued that because § 2Q1.2(a) sets a base offense level for a conviction for storing hazardous waste without a permit, the district court’s application of the § 2Q1.2(b)(4) increase constituted impermissible double counting. The Tenth Circuit found no double counting problem, since § 2Q1.2(a) governs sentencing for a wide range of environmental crimes involving hazardous waste. Thus, it is possible to be sentenced under § 2Q1.2(a) without having committed the offense of storing environmental waste without a permit. U.S. v. Dillon, 351 F.3d 1315 (10th Cir. 2003).
10th Circuit holds that injection of chemicals into disposal well is discharge into environment. (355) Guideline § 2Q1.2(b)(1)(A) provides for a six-level enhancement “If the offense resulted in an ongoing, continuous or repetitive discharge, release, or emission of a hazardous or toxic substance or pesticide into the environment.” Because defendant injected wastewater 4000 feet below the surface, where no people or animals or plants lived, he argued for the first time on appeal that he did not dump hazardous waste into the “environment.” The Tenth Circuit found defendant’s definition of environment too restrictive. At least one federal environmental law defines the “environment” to include “any other surface water, ground water, drinking water supply, land surface or subsurface strata … within the United States ….” See CERCLA, 42 U.S.C. § 9601(8). The concern of § 2Q1.2(b)(1)(A) is harm to life from dangerous chemicals. The “environment” encompasses at least those portions of the earth’s crust whose contamination can impact human health. The principal function of the restrictions imposed by the Safe Drinking Water Act on injections into disposal wells is to prevent contamination of potential sources of drinking water. Injecting chemicals into such a well is a discharge into the environment for purposes of § 2Q1.2(b)(1)(A). U.S. v. Overholt, 307 F.3d 1231 (10th Cir. 2002).
10th Circuit holds “specially protected wildlife” refers to all wildlife covered by section 2Q2.1. (355) Defendants were involved in a scheme to export illegally taken wildlife. The district court enhanced defendants’ sentences under § 2Q2.1 because the market value of all the wildlife exceeded $2,000. Defendant argued that this violated the ex post facto clause because at the time of the offense, the enhancement applied only if the market value of the “specially protected” wildlife exceeded $2,000. The 10th Circuit found no ex post facto violation, holding that the 1991 amendment deleting “specially protected” did not change the meaning or application of this enhancement. The old guideline assumed that any offense covered by this section involved some quantity of “specially protected” fish, wildlife or plants. “Specially protected” meant any wildlife involved in the violation of one of the statutes to which this section applied. U.S. v. Allemand, 34 F.3d 923 (10th Cir. 1994).
11th Circuit holds that increase for discharge of hazardous substance applies only to offenses involving statutes listed in guidelines. (355) guideline § 2D1.1(b)(6)(A), redesignated as § 2D1.1(b)(8)(a) in 2006, provides for a two-level enhancement for offenses involving either (1) an unlawful discharge, emission, or release into the environment of a hazardous substance; or (2) the unlawful transportation, treatment, storage, or disposal of a hazardous waste. Application Note 19 states that the enhancement applies if the conduct for which the defendant is accountable under § 1B1.3 involved any discharge, emission, release, transportation, treatment, storage, or disposal violation covered by four listed environmental statutes. Defendants were convicted of methamphetamine conspiracy and related charges, and the district court applied the enhancement based on their discharge of anhydrous ammonia. The Tenth Circuit held that the enhancement is limited to offenses that involve violations of the four federal environmental statutes listed in the guidelines. The enhancement applies to “unlawful” discharges. The government bears the burden of establishing by a preponderance of the evidence the facts necessary to support a sentencing enhancement, and so must establish the violation of the environmental statute. U.S. v. Kinard, 472 F.3d 1294 (11th Cir. 2006).
11th Circuit holds that market value should be based on value of entire shipment, not just the value of illegal items within shipment. (355) Defendant imported orchids into the U.S. in violation of the Endangered Species Act. Section 2Q2.1(b)(3) provides for an enhancement based on the “market value” of the plants. The district court based the market value of defendant’s offense on the value of the shipments in their entirely, and not just on the value of the undocumented orchids within each shipment. The conspirators tried to avoid customs’ detection of the undocumented orchids by shipping small quantities of the illegal orchids among large quantities of legal documented orchids and placing the illegal orchids at the bottom of shipments and legal orchids at the top of the shipments. The Eleventh Circuit held that in this case, the market value was properly based on the value of the entire shipment, not just the value of the undocumented plants. Because the legally imported orchids were used to avoid the detection of the undocumented orchids, under § 1B1.3, the market value of the legally imported orchids was relevant conduct and was properly considered by the district court in determining defendant’s offense level. U.S. v. Norris, 452 F.3d 1275 (11th Cir. 2006).
11th Circuit holds that actual contamination is not required for discharge enhancement. (355) Defendant, the owner and operator of a business that hauled solid waste and vegetative debris, had his trucks dump waste at two protected wetlands sites that he owned. The district court applied a four-level increase under § 2Q1.3(b)(1) for an offense that “otherwise involved a discharge, release, or emission of a pollutant.” The Eleventh Circuit rejected defendant’s argument that the government must prove actual environmental contamination for the enhancement to apply. This circuit has previously interpreted § 2Q1.2, which applies to the release of hazardous substances, in the same manner . See U.S. v. Cunningham, 194 F.3d 1186 (11th Cir. 1999). Section 2Q1.3 parallels § 2Q1.2 exactly, but applies to pollutants that are not hazardous or toxic. U.S. v. Perez, 366 F.3d 1178 (11th Cir. 2004).
11th Circuit holds that increase for discharge without a permit was not double counting. (355) Defendant, the owner and operator of a business that hauled solid waste and vegetative debris, had his trucks dump waste at two protected wetlands sites that he owned. The district court applied an increase under § 2Q1.3 (b)(4) for an offense involving a discharge without a permit. The Eleventh Circuit held that the increase was not double counting because defendant’s base offense level under § 2Q1.3 only accounted for the “mishandling” of environmental pollutants, and did not account for the permit element of his criminal conduct. U.S. v. Perez, 366 F.3d 1178 (11th Cir. 2004).
11th Circuit holds that continuous discharge increase does not require proof of environmental contamination. (355) Section 2Q1.2 (b)(1) provides for a six-level increase for “an ongoing, continuous, or repetitive discharge, release or emission” of a hazardous substance into the environment. Note 5 to § 2Q1.2 says that “[s]ubsection (b)(1) assumes a discharge or emission into the environment resulting in actual environmental contamination…. Depending on the harm … a departure of up to two levels in either direction … may be appropriate.” Defendant argued that note 5 requires the government to prove actual environmental contamination before § 2Q1.2(b) (1) can be applied. Noting a circuit split on this issue, the Eleventh Circuit joined the Second and Fifth Circuits in holding that note 5 does not impose any additional requirements on the application of the § 2Q1.2(b)(1) enhancement. Compare U.S. v. Liebman, 40 F.3d 544 (2d Cir. 1994) and U.S. v. Goldfaden, 959 F.2d 1324 (11th Cir. 1992) (proof of actual environmental contamination not required) with U.S. v. Ferrin, 994 F.2d 658 (9th Cir. 1993) (showing of actual contamination required). “Subsection (b)(1) takes environmental contamination as a given, but allows for departures depending on the potency, size, or duration of the contamination.” U.S. v. Cunningham, 194 F.3d 1186 (11th Cir. 1999).
11th Circuit holds that substantial expenditure enhancement does not require contamination. (355) Section 2Q1.2(b)(3) provides for a four-level enhancement if “the cleanup required a substantial expenditure.” Defendant did not dispute that the cleanup of the hazardous substance involved in his offense required a substantial expenditure, but argued that this expenditure was not related to contamination, given that the company eventually hired to remove the waste disposed of it in a regular landfill after adding lime and water. The Eleventh Circuit found defendant’s argument meritless. Nothing in § 2Q1.2(b)(3) limits its application to the costs of contamination cleanup per se; instead, it extends to any cleanup related to the offense. Defendant’s offense was the illegal transportation of hazardous waste to Georgia. The owner of the land in Georgia on which defendant abandoned the waste had to pay $147,716.66 to dispose of the waste properly, i.e. to clean it up. Thus, defendant’s conduct met the plain language of the enhancement—the cleanup of defendant’s offense required a substantial expenditure. U.S. v. Cunningham, 194 F.3d 1186 (11th Cir. 1999).
11th Circuit upholds departure for exporting endangered gorillas for breeding. (355) Defendant was convicted of attempting to illegally export two endangered gorillas from the United States to Mexico. The district court departed downward under § 5K2.11 because defendant had intended to export the gorillas for purposes of breeding and exhibition, and his conduct did not “cause or threaten the harm or evil sought to be prevented by the law” under which he was convicted. The Eleventh Circuit affirmed. There was no evidence that defendant intended to harm the gorillas; he was a conservationist who intended to help perpetuate the species. The district court concluded that the Sentencing Commission did not consider the special factors involved in this case under the applicable sentencing guidelines, and that a downward departure was justified. The district court did not abuse its discretion. U.S. v. Bernal, 90 F.3d 465 (11th Cir. 1996).
11th Circuit rejects downward departure even though defendant’s acts caused no environmental damage. (355) Defendant was convicted of transporting hazardous waste to unpermitted facilities and storing hazardous waste without a permit. Section 2Q1.2(b)(4) provides for a four level increase for transportation or storage without a permit. However, application note 8 says a departure of up to two levels either up or down may be warranted. Defendant argued for a two-level departure because he was not involved in the eventual dumping of drums in the woods, but merely transported them from one place of business to another. Of the 150 drums, only 38 contained hazardous waste. There was very little environmental damage, and none caused by defendant’s transportation. The 11th Circuit affirmed that a two level departure was not warranted. The drums posed a significant risk to the environment. Had an accident occurred during transport, the ignitable chemicals could have caused a deadly fire. Clean-up costs of the drums exceeded $200,000. U.S. v. Goldsmith, 978 F.2d 643 (11th Cir. 1992).
D.C. Circuit holds Advisory Group on Environmental Sanctions may close its meetings to public. (355) The Washington Legal Foundation (WLF) claimed a statutory entitlement under the Federal Advisory Committee Act (FACA) to the deliberations and documents of the Sentencing Commission’s Advisory Group on Environmental Sanctions (Advisory Group). The D.C. Circuit held that the Advisory Group was not subject to FACA, as it was neither “established” nor “utilized” by an “agency.” Therefore, the Advisory Group could lawfully close its meetings to the public. However, the district court did not sufficiently evaluate WLF’s request for the Advisory Group’s documents under the common law right of access to public documents. The case was remanded for consideration of this issue. Washington Legal Foundation v. U.S. Sentencing Commission, 17 F.3d 1446 (D.C. Cir. 1994).
Ohio District Court imposes two level increase for dumping hazardous wastes without a permit. (355) Defendant argued that since he did not “intend” to dispose of hazardous wastes and he was not in the business of disposing of hazardous waste, he did not need a hazardous waste permit. The district court held that the permit does not make an exception for either reason and increased defendant’s base offense level by two under guidelines § 2Q1.2(b)(4), which allows for increases in base offense levels for dumping hazardous waste without permits. U.S. v. Bogas, 731 F.Supp. 242 (N.D. Ohio 1990).
Ohio District Court holds investigative costs may not be included in application of guideline 2Q1.2(b)(3). (355) Defendant pled guilty to two counts of improper disposal of hazardous waste. The EPA estimated the cost of clean-up at $350,000 and the presentence report recommended a two level increase in the base offense level pursuant to guideline 2Q1.2(b)(3), which allows up to a four level increase if a “clean-up” requires substantial expenditure of money. The district court refused to impose the increase finding that a substantial portion of the $350,000 cost was derived from the cost of investigation and not actual clean-up. The court held that the cost of investigation could not be used in determining whether an increase in base offense level was proper under 2Q1.2(b)(3). U.S. v. Bogas, 731 F.Supp. 242 (N.D. Ohio 1990).
Commission adds enhancement and invites upward departure for mishandling hazardous substances. (355) The Commission added a two-level enhancement in § 2Q1.2 for offenders convicted under 49 U.S.C. § 5124 or § 46312 of mishandling hazardous or toxic substances or pesticides. These offenses pose an inherent risk to large populations in a manner not typically associated with other pollution offenses sentenced under the same guideline. In addition, the amendment added an application note inviting an upward departure if the offense was calculated to influence or affect the conduct of the government by intimidation or coercion, or to retaliate against government conduct. This is intended to address concerns that terrorists may commit hazardous material transportation offenses because of their potential to cause a one-time, catastrophic event. Amendment 572, effective November 1, 2004.
Commission increases sentences for terrorism. (355) The Commission eliminated the six-level increase for terrorism in the money laundering guideline, §2S1.1, because this is adequately covered by the terrorism adjustment in §3A1.4. For offenses involving harboring a fugitive in a terrorism offense, the maximum offense level in §2X3.1 (Accessory After the Fact) was raised from level 20 to level 30. New offenses involving biological agents and toxins were referred to the guideline covering nuclear, biological, and chemical weapons and materials, §2M6.1. The base offense level for tampering with a public water system was increased from level 18 to level 26, and §§2Q1.5 and 2Q1.4 were consolidated. The six-level enhancement for the risk of death or serious bodily injury (in the predecessor guideline) was incorporated into the base offense level, as were two levels for bodily injury. Likewise, the base offense level for threatening to tamper with a public water system, without conduct evidencing an intent to carry out the threat, was increased from level 10 to level 16. A base offense level of level 22 was provided for conduct evidencing an intent to carry out the threat. Amendment 655, effective November 1, 2003.
Commission ensures incremental, consecutive penalty for failure to appear. (350) In its 1998 amendments, the Sentencing Commission amended §§ 2J1.6, 2P1.2, 3D1.1, 3D1.2 and 5G1.2 to ensure that there would be an incremental, consecutive penalty for defendants convicted of failure to appear. Specifically, the amendment more clearly distinguishes between statutes that require imposition of a consecutive term of imprisonment and statutes that require both a minimum term of imprisonment and a consecutive sentence. The amendment adds an upward departure provision if the offense involves multiple obstructive acts. The amendment also addresses a circuit conflict over whether grouping the failure to appear count with the count of conviction for the underlying offense violates the statutory mandate to impose a consecutive sentence. Compare U.S. v. Agoro, 996 F.2d 1288 (1st Cir. 1993) (grouping rules apply) with U.S. v. Packer, 70 F.3d 357 (5th Cir. 1995), cert. denied, 117 S.Ct. 75 (1996) (grouping rules defeat statutory purposes of 18 U.S.C. § 3146). Amendment 579, effective November 1, 1998.
Commission amends environmental guide-lines to define “pecuniary gain.” (355) In an amendment effective November 1, 1992, the Commission amended section 2Q2.1 by deleting “involved a commercial purposes” and inserting “(A) was committed for pecuniary gain or otherwise involved a commercial purpose; or (B) involved a pattern of similar violations.” A new application note defines the phrase “pecuniary gain.”
Article examines environmental guidelines. (355) Gary S. Lincenberg examines the context in which the environmental guidelines were promulgated, explains how they apply to individual offenders, and discusses possible amendments to the guidelines. He also discusses the sentencing of corporate defenders in light of the new organizational guidelines which became effective November 1, 1991, but which only partially apply to environmental crimes. Gary S. Lincenberg, Sentencing Environmental Crimes, 29 Am. Crim. L. Rev. 1235 (1992).