United States v. Russo

281 F. App'x 43
CourtCourt of Appeals for the Second Circuit
DecidedJune 13, 2008
DocketNo. 07-5047-cr
StatusPublished
Cited by2 cases

This text of 281 F. App'x 43 (United States v. Russo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Russo, 281 F. App'x 43 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Defendant-appellant Frank Russo pleaded guilty to one count of conspiring to violate the Clean Air Act, 42 U.S.C. § 7401 et seq., by conducting asbestos abatements without following applicable Environmental Protection Agency (“EPA”) regulations. The district court (Hurd, J.) sentenced him principally to a term of eighteen months’ imprisonment. Russo now appeals from the sentence. We assume familiarity with the facts and procedural history.

We review sentences for reasonableness, a district court’s interpretation of the United States Sentencing Guidelines de novo, and findings of fact for clear error. United States v. Mejia, 461 F.3d 158, 162 (2d Cir.2006). Although the government contends that many of Russo’s claims on appeal have not been preserved and therefore are subject to plain error review, see United States v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir.2008), we decline to reach the issue of whether this standard is appropriate, as we conclude that the claims fail even under the less stringent standards urged by Russo.

Russo first challenges the application of a four-level sentencing enhancement under Guidelines Section 2Q1.2(b)(l)(B) for discharge of hazardous materials into the environment. Contrary to Russo’s contention, the district court made adequate findings as to environmental discharge. The sentencing judge expressly stated in open court that “there was some discharge,” and that although a six-level enhancement under Section 2Q1.2(b)(l)(A) for continuous, ongoing, or repetitive discharge was not appropriate, a four-level enhancement under Section 2Q1.2(b)(1)(B) nevertheless was warranted because of the “relatively short duration of the offense and resulting discharge.” The judge repeated this last statement in the written judgment.

Furthermore, these findings were not clearly erroneous. Three workers recruited to remove asbestos at the Broadalbin plant stated in affidavits that they were not “provided with any decontamination unit from which to remove asbestos from [their] bodies, tools used during the removal process, or bags of asbestos taken away from the project. As a result, friable asbestos was carried by [them] on [their] bodies, tools and bags outside the buddings, into the outdoor environment.” Moreover, Special Agent Michael Dwyer of the EPA testified that a security officer at the Broadalbin facility told him shortly after the unlawful abatement there that “he saw white substances on the ground outside the building” and on the water of a creek that runs along the side of the building. Russo concedes that “a finding that the hazardous waste came into contact with land or water or was released into the air is the appropriate predicate for an enhancement under [Section 2Q1.2(b)(l) ]”. United States v. Ferrin, 994 F.2d 658, 664 (9th Cir.1993). Accordingly, we conclude that the district court adequately made findings, amply supported by the record, to support the four-level discharge enhancement.

Russo next challenges the district court’s application of a four-level enhancement under Guidelines Section 2Q1.2(b)(3) for causing contamination that resulted in substantial cleanup expenditures. The district court found that “the cleanup caused by the offense required a substantial ex[46]*46penditure. In fact, ... the total cleanup for the two plants was over 2.5 million dollars.” Russo does not dispute that this amount was spent to clean the facilities, nor that $2.5 million is “substantial” for purposes of Section 2Q1.2(b)(3). See, e.g., United States v. Chau, 293 F.3d 96, 100 (3d Cir.2002) (holding that “$200,000 is a substantial expenditure” for purposes of sentencing enhancement); United States v. Cunningham, 194 F.3d 1186, 1202 (11th Cir.1999) (holding that cleanup expenditure of $147,716.66 was “substantial” for purposes of enhancement); United States v. Bogas, 920 F.2d 363, 369 (6th Cir.1990) (holding that where cleanup expenditure “came to a six-figure total,” the district court’s finding that “cleanup did not require a ‘substantial’ expenditure was clearly erroneous”). He nevertheless asserts that the district court failed to resolve a factual dispute as to whether this expenditure was caused by his unlawful activity, or whether it was caused by asbestos contamination that existed before the abatements occurred. We disagree.

Evidence at the hearing established that the cost of cleaning up the Broadalbin facility had been about $2.2 million and that the cost of cleaning the Gardner plant had been about $300,000. Russo attempted to show that these costs were not attributable to his unlawful abatements because the facilities already were contaminated when he arrived. The government offered evidence that the sites were clean until Russo’s activities contaminated them.

The district judge sought to resolve this dispute as the hearing progressed. John Douglas testified about post-abatement cleanup procedures at the Broadalbin facility, and the district court attempted to clarify what Douglas meant by “cleanup”— that is, whether he meant cleanup associated with Russo’s shoddy abatements, or cleanup that would have had to be done regardless of Russo’s unlawful activity. An extended colloquy ensued as the district judge struggled to convey to Douglas what he was asking. Douglas eventually understood and testified that if the unlawful abatements had not been performed, Rolla could have continued to use the plant, or simply sealed it up. Once the abatements occurred, however, the only option was to engage in an extensive decontamination effort. The district judge asked one more time whether Douglas, when he spoke of “cleanup,” meant cleanup that had to be done in order to restore the habitability of the facility that existed before the unlawful abatements, and Douglas stated that this was his meaning.

The parties then were given the opportunity to propose findings of fact and conclusions of law. Russo argued in his post-hearing submission that an expenditure enhancement was not warranted because there was evidence that Rolla’s facilities were contaminated before the unlawful abatements. The government suggested that the facilities were not contaminated before Russo conducted the abatements.

It was against this backdrop that the sentencing judge found that “the total cleanup for the two plants was over 2.5 million dollars.” The record could not be clearer that the judge was aware of the causation dispute, and we therefore must infer that he considered the causation issue, as well as Russo’s factual contentions about the prior state of the facilities, in making this determination. See United States v. Fernandez, 443 F.3d 19, 29 (2d Cir.) (“[W]e entertain a strong presumption that the sentencing judge has considered all arguments properly presented to her, unless the record clearly suggests otherwise.”), cert. denied, — U.S.-, 127 S.Ct. 192, 166 L.Ed.2d 143 (2006); see also Parker v. Dugger,

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281 F. App'x 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-russo-ca2-2008.