Opinions of the United
2004 Decisions States Court of Appeals for the Third Circuit
8-11-2004
USA v. Landmesser Precedential or Non-Precedential: Precedential
Docket No. 03-2958
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PRECEDENTIAL D. Toni Byrd (Argued)
James V. Wade
UNITED STATES COURT OF Office of Federal Public Defender APPEALS FOR THE THIRD CIRCUIT Middle District of Pennsylvania Williamsport, PA 17701
Daniel I. Siegel
No. 03-2958 Office of Federal Public Defender Middle District of Pennsylvania Harrisburg, PA 17101
UNITED STATES OF AMERICA Attorneys for Appellant
v. Christian A. Fisanick (Argued)
George J. Rocktashel
ROBERT LANDMESSER, Thomas A. Marino Appellant Office of United States Attorney Middle District of Pennsylvania Williamsport, PA 17701
On Appeal from the United States Attorneys for Appellee District Court for the Middle District of Pennsylvania
District Judge: The Honorable Judge OPINION OF THE COURT James F. McClure, Jr.
(D.C. No. 03-cr-35) POLLAK, District Judge.
On December 25, 2002, appellant Robert Landmesser (“Landmesser”), along Argued May 5, 2004
with two persons not involved in this appeal, stole anhydrous ammonia from an Before: SLOVITER and FUENTES, agricultural supply business in Mill Hall, Circuit J and POLLAK, District Judge* Pennsylvania. The anhydrous ammonia was to be used to manufacture (Filed: August 11, 2004)
methamphetamine. During the theft, anhydrous ammonia vapor was released from the tanks, burning Landmesser’s eyes and throat. On the next day, Pennsylvania
*
state troopers arrested Landmesser.
The Honorable Louis H. Pollak, Senior District Judge for the Eastern A federal grand jury returned a one- District of Pennsylvania, sitting by count indictment against Landmesser on designation. February 13, 2003, charging him with theft
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of anhydrous ammonia in violation of 21 imprisonment. 3 Built into the sentence U.S.C. § 864(a)(1)1 and 18 U.S.C. § 2.2 was a two-level enhancement of the base Landmesser entered a plea of guilty, and, offense level pursuant to the specific based on the factual findings and guideline offense characteristic at U.S.S.G. § calculations set forth in the probation 2D1.12(b)(2), which applies when the official’s presentence report, the District offense involves an “unlawful discharge, Court sentenced Landmesser to 24 months emission, or release” into the environment of a “hazardous or toxic substance.” The District Court concluded that (1) anhydrous ammonia is a “hazardous substance” and (2) the release of the
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The District Court based its manufacture a sentencing ruling on the presentence controlled report, which calculated Landmesser’s substance. offense level pursuant to the applicable offense guideline – U.S.S.G. § 2D1.12. Section 2D1.12 provides, in relevant part: (b) Specific Offense Characteristics
(a) Base Offense Level (Apply the greater): (1) I f t h e defendant (A)
(1) 12, if the
intended to
defendant
ma nuf a c ture
intended to
methamphetamanufacture
a
mine, or (B)
controlled
k n e w ,
substance or
believed, or
knew or
h a d
believed the
reasonable
prohibited
cause to
f l a s k ,
believe that
equipment,
prohibited
chemical,
f l a s k ,
product, or
equipment,
material was
chemical,
to be used to
product, or
manufacture a
material was
controlled
to be used to
substance; or
ma nuf a c ture
(2) 9, if th e methamphetadefendant had mine, increase reasonable by 2 levels. cause to
(2) If the offense
believe the
involved (A)
prohibited
an unlawful
f l a s k ,
discharge,
equipment,
emission, or
chemical,
release into
product, or
t h e
material was
environme n t
to be used to
o f a
4
hazardous or substance,” the offense level was increased t o x i c by an additional two levels pursuant to substance; or U.S.S.G. § 2D1.12(b)(2). ( B ) the
At the sentencing hearing, unlawful
Landmesser objected to the two-level transportation
increase pursuant to § 2D1.12(b)(2), , treatment,
maintaining that, although there may have storage, o r
been a release, it was not an “unlawful”
disposal of a
one as defined by Application Note 3 to hazardous
U.S.S.G. § 2D1.12. Application Note 3 w a s t e ,
states, in relevant part:
increase by 2 levels. Subsection (b)(2) applies if the conduct for which the U.S.S.G. § 2D1.12.
defendant is accountable
Because Landmesser “knew” that under § 1B1.3 (Relevant the anhydrous ammonia “was to be used to Conduct) involved any manufacture a controlled substance,” the discharge, emission, release, District Court set a base offense level of transportation, treatment, 12 pursuant to U.S.S.G. § 2D1.12(a)(1); s t o r ag e , o r d is p o s a l additionally, because Landmesser “knew” violation covered by the that the anhydrous ammonia “was to be Resource Conservation and used to manufacture methamphetamine,” Recovery Act, 42 U.S.C. § the offense level was increased by two 6928(d), the Federal Water l e v e l s p ur sua nt to U .S .S .G . § Pollution Control Act, 33 2D1.12(b)(1). 5 Finally, because the U.S.C. § 1319(c), or the District Court concluded that the offense C o m p r e h e n s i v e involved an “u nlaw ful discharge, Environmental Response, emission, or release” of a “hazardous Compensation, and Liability Act, 42 U.S.C. §§ 5124, 9603(b).6
5 During Landmesser’s change of Landmesser argued at the sentencing plea proceeding, the court specifically asked Landmesser if, when he was
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attempting to steal the anhydrous The reference in Application Note ammonia, he “knew perfectly well that it 3 to 42 U.S.C. § 5124 appears to be a was intended to be used for making typographical error. Section 5124 of methamphetamine.” Joint App. at 31, ll. Title 42 does not exist. The Sentencing 10-13. Landmesser answered this Commission likely intended to reference question in the affirmative. Id. at l. 14. 49 U.S.C. § 5124.
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hearing that, pursuant to Application Note Hospital in Towanda. 3, the two-level enhancement could only It can hardly be
apply if the government had proved by a argued that that release was preponderance of the evidence that there lawful. In other words, that was a “discharge, emission, or release”
Mr. Landmesser had any,
violating the Resource Conservation and you know, authority to be Recovery Act (“RCRA”), the Federal r e le a s i n g it. As I Water Pollution Control Act (“FWPCA”)
understand, the defense
or the Comprehensive Environmental counsel’s position for it to Response, Compensation, and Liability be considered unlawful
Act (“CERCLA”).
under that clause, it has to The District Court overruled qualify under application Landmesser’s objection to the proposed note three as having been a sentence enhancement, stating: violation covered by those specific sections of the three [The Court]: Now, the prestatutes .
sentence report contains in paragraphs seven through I don’t think that’s a ten, I guess, the offense reasonable interpretation of conduct as summarized by t h a t s e c t io n o f t h e Mr. Rocktashel. And there guidelines. First of all, the are about three instances language of application note referenced there where there three is not exclusive, and I was a release of the vapor. think to interpret it as e x c l u s ive is not th e Paragraph ten refers
reason a b le, logical
to the fact that on that interpretation of clause two.
particular instance the vapor released from the tanks Therefore, the made Landmesser’s eyes objection is overruled. The and throat burn. Paragraph Court believes that the 13 refers to an entire area conduct in this instance being covered in a vapor qualifies for that cloud. Paragraph 14 refers enhancement and that the to Landmesser being burned release of that occurred, and when anhydrous ammonia it was unlawful for the was released from one of the purposes of this tanks, and he received enhancement. medical treatment for the And even though the
chemical burn at Memorial Court does not find – I’ll
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certainly make that of Landmesser maintains that the District record; the Court does not Court’s interpretation of “unlawful” in find it was unlawful with U.S.S.G. § 2D1.1(b)(2) – namely that respect to any specific Landmesser was without “authority to be statutory provisions that are releasing” the anhydrous ammonia – recited in the application renders Application Note 3 meaningless. note three. So that’s clear on The gov ernm ent co ntend s that the record. Landmesser’s arguments fail because he does not cite to any “authority holding that Ms. Byrd: Just so I’m clear, [U.S.S.G. § 2D1.1(b)(2)] requires a Your Honor, you’re finding violation of one of the specific it’s unlawful because there environmental provisions set forth in the was a release during the application note.”
theft?
We find the government’s argument The Court: Yes.
unconvincing. Under the basic tenets of App. 69-70 ll. 13-25. statutory construction, which apply to sentencing guideline interpretation, United The District Court then applied § States v. Milan, 304 F.3d 273, 293 (3d Cir.
2D1.12(b)(2)’s two-level enhancement to 2002), attention must be addressed to the Landmesser’s sentence and sentenced him entirety of a text, with a view to avoiding to 24 months imprisonment.
interpretations that would render any Discussion phrase superfluous. United States v. Swan, 275 F.3d 272, 280 (3d Cir. 2002). And we Our review of the District Court’s have specifically ruled that “[a]n application of U.S.S.G. § 2D1.12(b)(2) is application note must be given ‘controlling plenary. United States v. Brennan, 326 weight unless it is plainly erroneous or F.3d 176, 200 (3d Cir. 2003), cert. denied, inconsistent with the regulation.’” United 540 U.S. 898 (2003).
States v. Sau Hung Yeung, 241 F.3d 321, Landmesser argues that the District 325 n.2 (3d Cir. 2001) quoting United Court’s enhancement of his sentence by States v. Miller, 224 F.3d 247, 253 n.8 (3d two levels under U.S.S.G. § 2D1.1(b)(2) Cir. 2000). was inappropriate because, as the District The Sentencing Commission, in Court was at pains to make clear, the prefacing the phrase “discharge, emission, conduct for which Landmesser was or release” with the modifier “unlawful” in accountable was not found by the District § 2D1.12(b)(2), manifestly intended the Court to be a “discharge, emission, or release” constituting a “violation covered by” any of the three environmental statutes referred to in Application Note 3.
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adjective to have meaning.6 That meaning is found in the text of Application Note 3. Under the language of Application Note 3, Offenses). The base offense level varies § 2D1.12(b)(2)’s enhancement applies if dramatically, depending on the type and the release of anhydrous ammonia that quantity of the drugs, on whether use of occurred during the theft was a “violation the drugs has resulted in serious injury or covered by” one of the three enumerated death, and on whether the defendant has statutes – RCRA, FWPCA or CERCLA.7 a prior conviction for a similar offense. Among the specific offense 6 Compare U.S.S.G. § 2Q1.2, which characteristics is § 2D1.1(b)(5), which addresses Mishandling of Hazardous or provides for a 2-level increase in offense Toxic Substances. The base offense level for “an unlawful discharge, level is 8. “If the offense resulted in an emission, or release into the environment ongoing, continuous, or repetitive of a hazardous or toxic substance.” The discharge, release, or emission of a initial wording of Application Note 19 hazardous or toxic substance or pesticide (former Application Note 20) is verbatim into the environment,” an increase of 6 the initial wording of Application Note 3 levels is called for. § 2Q1.2(b)(1)(A). of § 2D1.12(b)(2). Where the offense “otherwise involved a The Robison court concluded that discharge, release, or emission of a nothing in the wording of U.S.S.G. § hazardous or toxic substance or 2D1.1(b)(5) or the application note pesticide,” the required increase is 4 suggests “that the enhancement can apply levels. § 2Q1.2(b)(1)(B). With respect only if a defendant is also convicted for to the application of this guideline, violating one of the environmental whether the “discharge, release, or statutes listed in the Application Note.” emission” is “unlawful” is not a stated (emphasis in original). Id. at 497. In the factor. instant matter, the government’s reliance on Robison is misplaced. Landmesser 7 The government invokes United does not argue that, pursuant to States v. Robison, 19 Fed. Appx. 490 Application Note 3, section (9th Cir. 2001), an unpublished, non- 2D1.12(b)(2)’s enhancement would only precedential Ninth Circuit opinion, in apply if he had been convicted of a which that court addressed U.S.S.G. § violation under one of the three 2D1.1(b)(5) and its Application Note 20, enumerated statutes. Landmesser argues which has subsequently been renumbered that, to support the two-level Application Note 19. U.S.S.G. § 2D1.1 enhancement, the sentencing court must is the general drug guideline governing make a finding of a violation of one of Unlawful Manufacturing, Importing, the three statutes, and that in the case at Exporting, or Trafficking (Including bar the District Court specifically noted Possession with Intent to Commit These that it had not found that the release
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The District Court expressly stated that it A c c o r d in gl y, Land messer’s did not find that the release of the sentence will be vacated and this matter anhydrous ammonia was “unlawful with will be remanded for resentencing in respect to any specific statutory provisions accordance with this opinion. that are recited in the application note three.” The District Court concluded that the release of the anhydrous ammonia was “unlawful” because Landmesser, having stolen the anhydrous ammonia, had no “authority to be releasing it.” Under the District Court’s rationale, § 2D1.12(b)(2) would appear to apply in every instance in which a “discharge, emission, or release” occurs in the course of a theft – an i n t e rp r e t a tion that w ould re nder A p p l i c a ti o n N o t e 3 e s s e n t i a l l y further argument captioned as follows:
meaningless.8 “Even if the District Court Construed § 2D1.12(b)(2) Too Broadly, Landmesser’s constituted such a violation. Conduct Was ‘Covered By’ the Environmental Provisions Specified in 8 We find no support for the the Application Notes.” In support of proposition that the language of this argument the government cites two Application Note 3 is not exclusive. statutes – 42 U.S.C. § 9603(b) and 49 Nothing in the Note suggests that § U.S.C. § 5104(b) – and contends that 2D1.12(b)(2) is meant to apply to Landmesser’s conduct was “covered by” conduct covered by environmental each of these statutes. As to the second provisions other than the three that are of these statutes the government says that specifically enumerated. Cf. Collinsgru what Landmesser did was “‘covered’ by v. Palmyra Bd. of Educ., 161 F.3d 225, [the statutory provision], if not 232 (3d Cir. 1998) (“The canon of constituting an actual violation of that expressio unius est exclusio alterius provision.” However (as noted above), means that explicit mention of one thing Application Note 3 only addresses in a statute implies a congressional intent conduct constituting a “violation covered to exclude similar things that were not by” (emphasis added) a listed statute. specifically mentioned.”). For the And the District Court (as also noted application of expressio unius est above) expressly “[did] not find [that exclusio alterius to interpretation of the Landmesser’s conduct] was unlawful guidelines, see United States v. Milan, with respect to any specific statutory supra, 304 F.3d at 293. provisions that are recited in the The government’s brief presents a application note three.”