United States v. Gist ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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NO. 95-11210
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Versus
REGINALD GIST,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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November 22, 1996
Before KING and HIGGINBOTHAM, Circuit Judges, and KAZEN*, District
Judge.
KAZEN, District Judge:
Appellant Reginald B. Gist pled guilty to Counts 1 and 5 of a
superseding indictment charging violations of the federal Resource
Conservation and Recovery Act (“RCRA”) and the regulations
promulgated thereunder. His sole complaint on appeal is that for
sentencing under the guidelines, both counts should have been
placed in a “single group” within the meaning of USSG §3D1.2.
Finding no error, we affirm.
*District Judge for the Southern District of Texas, sitting
by designation.
Count 1--Balch Springs. In August 1986, Appellant Gist and
others began operating High Tech Plating, Inc., a zinc-cyanide
electroplating business located on leased property in the Dallas
suburb of Balch Springs, Texas. The electroplating process
involved liquid solutions containing a number of toxic and
corrosive hazardous substances, including acids, cyanides,
chromium, and zinc. Before these liquids could be properly
disposed of through the sewer system, they should have been treated
with chemicals to precipitate out the metals, neutralize the
cyanide, and bring the pH of the acid solutions into an acceptable
range. Instead, High Tech poured plating solutions down the sewer
with inadequate or no pretreatment and sometimes simply drained the
solutions onto the outside ground. Also, plating vats sometimes
leaked onto the floor, and spilled hazardous wastes were then swept
outside. This conduct continued despite repeated warnings from the
Dallas County Water Control and Improvement District No.6 that High
Tech’s discharge exceeded legal limits for various hazardous
substances. Finally, in October 1989, the District disconnected
the sewer line and also required that High Tech submit written
plans for future waste disposal, including EPA carrier registration
numbers if the waste was to be transported and documentation that
the waste was to be disposed of at an EPA-registered and approved
facility.
Instead of complying with those requirements, Gist abandoned
the High Tech facility in January 1990. Left behind were 54 vats,
containing 72,000 gallons of highly acidic and toxic wastes. Also
left behind were drums and barrels of unused acids, cyanides, and
other chemicals. The EPA subsequently declared the High Tech
facility a “Superfund” site under the Comprehensive Environmental
Response, Compensation and Liability Act(“CERCLA”), 42 U.S.C.
§9601 et seq. The site cleanup cost over $300,000.00.
Count 1 of the superseding indictment charged that on or about
January 23, 1990, Gist knowingly disposed of hazardous wastes at
High Tech Plating in Balch Springs without having first obtained a
permit, by abandoning the Balch Springs facility and leaving the
hazardous wastes at the abandoned facility. 42 U.S.C.
§6928(d)(2)(A).
Count 5--Forney. Even before abandoning High Tech Plating at
Balch Springs, Gist leased a facility at the Forney Industrial Park
in Forney, Texas, where he started Metal Plating Systems, Inc.,
which operated from January 1990 to August 1992. This site also
generated large quantities of hazardous wastes, including spent
cyanide plating bath solutions and treatment sludges. When the
septic tank filled with plating sludge and the sewage field backed
up, Gist would pump used plating solution into truck tanks and
discharge it elsewhere. Once, for example, he pretended to be
washing a truck at a car wash while he opened the valve on the
truck and allowed the hazardous solution to pour into the sewer
drain. He also caused an employee to drive on a country road at
night while draining solution from the back of the truck. Finally,
he disposed of wastes by transporting them to property he owned at
Lake Fork, Texas, where the wastes were burned, buried and drained
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onto the ground.
Count 5 charged that from approximately July 1991 to March
1993, Gist knowingly transported hazardous waste from Metal Plating
Systems at Forney to a location at Lake Fork, Texas, a facility
which did not have a permit. 42 U.S.C.§6928 (d)(1).
The Sentence Calculation. The Presentence Report scored
Counts 1 and 5 under USSG §2Q1.2. Making appropriate adjustments
for specific offense characteristics and role in the offense, Count
1 was scored at an offense level of 24 and Count 5 at offense level
20. Using USSG §3D1.4, the combined offense level for the two
counts was adjusted from 24 to 26. A 3-level downward adjustment
was made for acceptance of responsibility, and Gist was sentenced
at guideline level 23 to 51 months’ confinement. Gist argues that
under USSG 3D1.2, Counts 1 and 5 should have been combined into a
single group, which would have yielded an offense level of 24 and
ultimately a sentence at guideline level 21.
USSG §3D1.2(b)--Same Victim? Gist argues that Counts 1 and 5
should have been grouped because they involve the same victim.
USSG §3D1.2(b) He invokes the Commentary, Application Note 2,
which states that where there are “no identifiable victims,” the
victim is “the societal interest that is harmed” and that counts
should be grouped when those societal interests are closely
related.
As the Government notes, when Gist abandoned the High Tech
Plating site, leaving behind corroded vats, drums and soil, the
victims included the landlord, surrounding landowners and their
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families, and the EPA which spent over $300,000.00 in cleanup cost.
The conduct addressed in Count 5 involved a different facility at
a different location and at a later time. Different surrounding
landowners and recreational users of a nearby lake were victims of
Gist’s illegal conduct in Count 5.
We conclude that the district court correctly found
identifiable victims in this case, that those victims were
different in Counts 1 and 5, and that USSG §3D1.2(b) was therefore
inapplicable.
USSG §3D1.2(d)--Ongoing Behavior? Gist’s more cogent argument
involves USSG §3D1.2(d), which provides for offense grouping “if
the offense behavior is ongoing or continuous in nature and the
offense guideline is written to cover such behavior”. For both
Counts 1 and 5, the presentence report increased the base offense
level by 6 under a specific offense characteristic applied when an
offense resulted in an “ongoing, continuous, or repetitive
discharge, release, or emission of a hazardous or toxic substance”.
USSG §2Q1.2(b)(1)(A). Gist argues that this specific offense
characteristic triggers the application of §3D1.2(d). We disagree.
USSG §3D1.2 is not a model of clarity, and the extensive
Commentary which follows it does not discuss the particular phrase
in Subsection (d) upon which Defendant relies. Nevertheless,
several observations are pertinent. First, the penultimate
paragraph in the Commentary states that a “primary consideration”
militating against grouping is whether the offenses involve
different victims. Next, §3D1.2 lists several guidelines which are
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explicitly intended to be grouped under Subsection (d). USSG
§2Q1.2 is not one of these. Accordingly, a sentencing court is
required to make “a case-by-case determination...based on the facts
of the case” to determine whether grouping is appropriate.
Further, the Commentary, Application Note 6, discussing Subsection
(d) of §3D1.2 contains this example: “(7) The defendant is
convicted of three counts of discharging toxic substances from a
single facility. The counts are to be grouped together.” By
implication, counts charging a defendant with discharging toxic
substances from different facilities at different times would not
be grouped together.
Because Gist’s criminal conduct was “ongoing” at the Balch
Springs site and was also “ongoing” at the Forney/Lake Fork site,
the district court properly applied the specific offense
characteristic in §2Q1.2(b)(1)(A) to each count. Nevertheless, the
criminal conduct charged with Counts 1 and 5 involved separate
victims injured at different locations on different dates, and the
district court properly declined to group the counts under §3D1.2.
Judgment is AFFIRMED.
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