United States v. Landmesser ( 2004 )

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Precedential or Non-Precedential: Precedential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
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
1
anhydrous ammonia during the theft
a) It is unlawful for any constituted an “unlawful discharge,
person – (1) to steal emission, or release.”
anhydrous ammonia, . . .
knowing, intending, or Landmesser timely filed this
having reasonable cause to appeal.4 While Landmesser does not
believe that such anhydrous dispute the District Court’s finding that
ammonia will be used to anhydrous ammonia is a “hazardous
manufacture a controlled substance,” he contends that the release of
substance in violation of the anhydrous ammonia was not
this part. “unlawful,” and, therefore, that the two-
level enhancement grounded on guidelines
21 U.S.C. § 864(a)(1). section 2D1.12(b)(2) was unwarranted.
2 For the reasons set forth below, we
(a) Whoever commits an
conclude that the two-level enhancement
offense against the United
of Landmesser’s sentence was not
States or aids, abets,
justified. Accordingly, we will remand the
counsels, commands,
case to the District Court for resentencing.
induces or procures its
commission is punishable District Court Sentencing Ruling
as a principal.
(b) Whoever willfully
causes an act to be done 3
The sentence also included a
which if directly performed three-year term of supervised release, a
by him or another would be special assessment of $100 and a
an offense against the required payment of $71.52 in restitution.
United States, is punishable
4
as a principal. This court has appellate
jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 2. 18 U.S.C. § 3742.
2
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
methampheta-
manufacture 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 methampheta-
defendant 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
3
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
6
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.
4
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 pre-
statutes.
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
5
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.
6
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
7
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.”
8