United States v. Chemetco Inc ( 2001 )


Menu:
  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 00-3940
    United States of America,
    Plaintiff-Appellee,
    v.
    Chemetco, Incorporated,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Illinois.
    No. 99 CR 30048--William D. Stiehl, Judge.
    Argued April 20, 2001--Decided December 17, 2001
    Before Easterbrook, Manion, and Kanne,
    Circuit Judges.
    Kanne, Circuit Judge. Defendant
    Chemetco, Inc. pleaded guilty to
    violating the Clean Water Act, 33 U.S.C.
    sec. 1311(a). Accordingly, the district
    court sentenced Chemetco to pay a fine
    that was based on the number of days that
    it violated the Clean Water Act. Chemetco
    now appeals its sentence, arguing that
    the district court misinterpreted the
    Clean Water Act and that the district
    court’s findings violated the rule set
    forth in Apprendi v. New Jersey, 
    530 U.S. 466
    , 
    120 S. Ct. 2348
    , 
    147 L. Ed. 2d 435
    (2000).
    I.   History
    Section 301 of the Clean Water Act
    ("CWA") provides that it is unlawful for
    any person to discharge a pollutant
    unless in compliance with the CWA. See 33
    U.S.C. sec. 1311(a). A person achieves
    such compliance by obtaining a National
    Pollutant Discharge Elimination System
    ("NPDES") permit from the United States
    Environmental Protection Agency ("U.S.
    EPA") or from a qualified state agency.
    See 
    id. at sec.
    1342.
    Chemetco smelts scrap metal at a foundry
    located near Hartford, Illinois in order
    to recover copper and other valuable
    products. On September 12, 1986, the
    Illinois Environmental Protection Agency
    ("Illinois EPA") issued Chemetco a permit
    allowing construction and operation of a
    storm- water runoff control system. Later
    that month, contract laborers hired by
    Chemetco installed this system, and
    pursuant to Chemetco’s instructions, also
    installed a secret pipe on Chemetco’s
    property running to an unnamed ditch
    tributary. The contract laborers then
    covered exposed sections of this secret
    pipe with straw. This secret pipe did not
    appear in any blueprint or drawing kept
    by Chemetco, and Chemetco did not have a
    permit allowing it to discharge
    pollutants via this pipe. Chemetco used
    this secret pipe to discharge water
    containing toxic metals such as lead and
    cadmium until September 18, 1996, when
    U.S. and Illinois EPA agents witnessed
    the secret pipe discharging polluted
    water.
    Chemetco and six of its managers were
    indicted in the United States District
    Court for the Southern District of
    Illinois on April 21, 1999. Count I of
    the indictment charged Chemetco and
    various managers with conspiring to
    violate the CWA. Count II charged
    Chemetco and various managers with
    knowingly violating Section 301 of the
    CWA "[f]rom on or about September 1986 to
    on or about September 18, 1996." Finally,
    Counts III and IV of the indictment
    charged Chemetco and various managers
    with making false statements to
    government officials.
    On January 11, 2000, Chemetco pleaded
    guilty to Counts I and II and nolo
    contendere to Counts III and IV. Chemetco
    also stipulated to the facts underlying
    the plea and waived its right to a jury
    trial. In the plea agreement,
    Chemetcoacknowledged discharging
    pollutants via the secret pipe during at
    least some of the time period alleged in
    the indictment. Chemetco also
    acknowledged that the government would
    recommend the imposition of a fine for
    Count II based on the number of days that
    the violation occurred. Section 309(c)(2)
    establishes criminal penalties for
    knowing violations of Section 301 of the
    CWA: "Any person who . . . knowingly
    violates [Section 301] . . . shall be
    punished by a fine of not less than
    $5,000 nor more than $50,000 per day of
    violation, or by imprisonment for not
    more than 3 years, or by both." 33 U.S.C.
    sec. 1319(c)(2)(B)./1 The district court
    then referred the matter to the probation
    office for pre-sentence investigation and
    asked counsel to prepare sentencing
    memoranda.
    Chemetco filed its sentencing memorandum
    on February 15, 2000, in which it averred
    that both parties agreed that under
    Section 309 of the CWA, Chemetco was
    liable for a fine of $2,500 to $25,000
    per day of violation before February 4,
    1987, and for a fine of $5,000 to $50,000
    per day of violation thereafter. Chemetco
    then noted that the only disputed issue
    was the number of days that the violation
    occurred, and that the district court
    would resolve this issue at a hearing on
    March 13, 2000. Chemetco claimed that at
    this hearing, the government would have
    to prove the number of days that the
    violation occurred by "clear and
    convincing evidence." Chemetco attached
    tables showing rainfall statistics and
    explained that the amount of rainfall
    would affect the number of days on which
    the secret pipe discharged polluted
    water. These tables also calculated
    possible fine ranges based on the
    rainfall statistics. The tables indicated
    that there had been 948 days of rain
    between September, 1986 and September,
    1996. However, Chemetco stated that "[i]t
    may . . . be impossible to determine [on]
    how many days an actual discharge
    occurred."
    The government also filed its sentencing
    memorandum on February 15, 2000. The
    government recommended fining Chemetco
    for 949 days of violation--948 days when
    it rained plus one day, September 18,
    1996, when although it did not rain, U.S.
    and Illinois EPA agents witnessed the se
    cret pipe discharging polluted water.
    On March 13 and 14, 2000, the district
    court held a hearing to determine the
    violation days. The government maintained
    that the secret pipe discharged polluted
    water on the 949 days indicated in its
    sentencing memorandum. Chemetco countered
    that there were fewer days of violation
    because the secret pipe did not discharge
    polluted water on every day that it
    rained. In support of this contention,
    Chemetco’s expert witness, Kim Fock,
    presented two alternative methodologies
    for calculating the number of days that
    the secret pipe discharged polluted
    water. Further, Chemetco employees
    testified that the secret pipe could not
    have discharged polluted water on every
    day that it rained because on certain
    occasions during the ten-year period
    charged in the indictment, the valve to
    the secret pipe was closed.
    With the district court’s leave,
    Chemetco filed a supplemental sentencing
    memorandum on March 22, 2000, in which it
    argued that there were seventy-one days
    of violation, yielding a fine range of
    $342,500 to $3,425,000. On May 18, 2000,
    the probation office issued its pre-
    sentence report ("PSR"), in which it
    discounted Chemetco’s calculation and
    concluded that there were 826 days of
    violation, yielding a fine range of
    $4,077,500 to $40,775,000. Chemetco filed
    its first objection to the PSR on June 9,
    2000, disputing the methodology that the
    probation office used to calculate the
    number of days of violation. The
    probation office responded by filing an
    addendum to the PSR on June 28, 2000, in
    which it concluded that there were 711
    days of violation, yielding a fine range
    of $3,502,500 to $35,025,000.
    On August 3, 2000, Chemetco filed a
    second objection to the PSR. Citing the
    Supreme Court’s recent decision in
    
    Apprendi, 530 U.S. at 477
    , Chemetco
    claimed that it had to "be charged [in
    the indictment] with each day of
    violation" and that the number of days of
    violation had to "be proven [by the
    government] beyond a reasonable doubt."
    In an order dated October 26, 2000, the
    district court rejected Chemetco’s
    Apprendi objection. The district court
    found that the indictment, which charged
    Chemetco with violating the CWA "[f]rom
    on or about September 1986 to on or about
    September 18, 1996," was sufficient given
    that it informed Chemetco of the charges
    and put Chemetco on notice of the
    potential maximum penalty--the penalty
    that the CWA would allow if Chemetco
    discharged pollutants every day during
    the period that the indictment
    identified. Further, the district court
    found that Apprendi did not apply to this
    case and, therefore, the number of days
    of violation under the CWA was a
    sentencing factor that the court could
    find by a preponderance of the evidence.
    The district court held a sentencing
    hearing on October 30, 2000. At that
    hearing, the district court found, by a
    preponderance of the evidence, that there
    were 676 days of violation, resulting in
    a fine range of $3,327,500 to
    $33,275,000. The district court sentenced
    Chemetco to a fine of $3,327,500 on Count
    II, and Chemetco now appeals this
    sentence.
    II.    Analysis
    The issue in this case is whether the
    number of days that Chemetco violated the
    CWA is an element of a CWA offense or a
    sentencing factor. Due process requires
    that the government prove each element of
    an offense beyond a reasonable doubt. See
    
    Apprendi, 530 U.S. at 477
    . After the gov
    ernment has met this burden and an
    offender is found guilty of a crime,
    however, courts can apply sentencing fac
    tors based on a preponderance of the
    evidence in order to increase the
    offender’s punishment. See Almendarez-
    Torres v. United States, 
    523 U.S. 224
    ,
    228, 
    118 S. Ct. 1219
    , 
    140 L. Ed. 2d 350
    (1998). Thus, whether the number of days
    that Chemetco violated the CWA is an
    element of a crime or a sentencing factor
    is important because if the number of
    violation days belongs in the former
    category, then it was reversible error
    for the district court to calculate it
    based on a preponderance of the evidence.
    See 
    Apprendi, 530 U.S. at 490
    .
    The Supreme Court has ruled that, within
    certain constitutional limits, Congress
    can identify which factors are elements
    of a crime and which are sentencing
    factors. See 
    id. at 485-90.
    Therefore,
    our first inquiry is statutory--whether
    in drafting the CWA, Congress intended
    the number of days of violation to be an
    element of a CWA offense or a sentencing
    factor. See 
    Almendarez-Torres, 523 U.S. at 228
    . If we answer that question in the
    affirmative, our next inquiry is whether
    treating the number of violation days as
    a sentencing factor comports with the
    constitutional limits elucidated in
    Apprendi.
    A.    Standard of Review
    We agree with both parties that we
    should assess Chemetco’s constitutional
    argument--the application of Apprendi to
    this case--de novo. See, e.g., United
    States v. Bhutani, 
    266 F.3d 661
    , 668 (7th
    Cir. 2001) (questions of law reviewed de
    novo). However, the parties dispute which
    standard of review should apply to
    Chemetco’s statutory argument. Chemetco
    urges us to apply de novo review because
    it timely objected to the PSR, stating
    that the district court’s procedures ran
    afoul of Apprendi. Nevertheless, the gov
    ernment argues that because Chemetco only
    objected to the PSR on constitutional
    grounds and not on statutory grounds, we
    should review Chemetco’s statutory
    argument under the plain error standard.
    See, e.g., United States v. Nance, 
    236 F.3d 820
    , 824 (7th Cir. 2000). Chemetco
    responds that its Apprendi objection
    preserved its statutory argument because
    inherent in every Apprendi objection is a
    claim of improper statutory construction.
    Because the result would be the same
    under the stricter de novo standard of
    review, we need not address whether an
    Apprendi objection preserves a claim of
    improper statutory construction.
    B.   Clean Water Act
    In order to determine whether Congress
    intended the number of violation days to
    be a sentencing factor or an element of a
    crime, we first look at the language of
    the statute. See United States v.
    Hayward, 
    6 F.3d 1241
    , 1245 (7th Cir.
    1993). When the language of a statute is
    clear and unambiguous, we must give
    effect to its plain meaning unless doing
    so would "thwart the purpose of the
    overall statutory scheme." See 
    id. Section 301
    prohibits discharging a
    pollutant without an applicable permit.
    See 33 U.S.C. at sec. 1311(a). Those who
    "knowingly" commit this violation "shall
    be punished" under the terms set forth in
    Section 309(c)(2). 
    Id. at sec.
    1319(c)(2). Section 309(c)(2) of the CWA
    provides that: "Any person who . . .
    knowingly violates [Section 301] . . .
    shall be punished by a fine of not less
    than $5,000 nor more than $50,000 per day
    of violation, or by imprisonment for not
    more than 3 years, or by both." 
    Id. at sec.
    1319(c)(2) (emphasis added). Section
    309(c)(2)’s "shall be punished by" clause
    indicates that the language following it
    sets forth the terms of punishment for a
    CWA violation. See United States v. Colt,
    
    126 F.3d 981
    , 982 (7th Cir. 1997). The
    terms of punishment for a CWA violation
    include a fine that depends on the number
    of days of violation.
    The "per day of violation" language
    qualifies this term of punishment. This
    language indicates that there is a
    "violation" that is defined elsewhere in
    the CWA, and that the punishment one
    receives for this violation depends on
    the number of days that the violation
    occurred. Thus, the number of days that
    the violation occurred is a factor to be
    determined after a "violation" has been
    established. Therefore, the plain meaning
    of Section 309(c)(2)’s language expresses
    Congress’s unambiguous intent.
    Because the language of Section
    309(c)(2) is unambiguous, we must give
    effect to it if doing so is consistent
    with the overall statutory scheme of the
    CWA. See 
    Hayward, 6 F.3d at 1245
    . CWA’s
    statutory scheme is clear: Section 301
    and other sections define what
    constitutes a violation/2 and Section
    309 establishes penalties for these
    violations. See Kelly v. United States
    E.P.A., 
    203 F.3d 519
    , 521-22 (7th Cir.
    2000). Indeed, Section 309 is entitled
    "Enforcement" and sub-section 309(c) is
    entitled "Criminal penalties." 33 U.S.C.
    at sec. 1319. While it is true that
    statutory titles are not definitive
    guides to statutory meaning, they are
    relevant. See 
    Almendarez-Torres, 523 U.S. at 234
    . Because the clear and unambiguous
    language of Section 309(c)(2) comports
    with the overall statutory scheme of the
    CWA, we hold that Congress intended the
    number of violation days to be a
    sentencing factor and not an element of a
    CWA offense.
    Chemetco argues that Congress intended
    to make the number of violation days an
    element of a CWA offense or
    alternatively, that Congress intended
    that each day of violation be charged as
    a separate CWA offense. Chemetco’s
    reliance on the Supreme Court’s decision
    in Castillo v. United States, 
    530 U.S. 120
    , 
    120 S. Ct. 2090
    , 
    147 L. Ed. 2d 94
    (2000) for the proposition that the
    number of violation days is an element of
    a CWA offense is misguided. The Supreme
    Court held that although the language of
    18 U.S.C. sec. 924(c)(1) was ambiguous,
    the structure of the statute clarified
    Congress’s intent to create a new element
    of a separate offense. See 
    id. at 124-25.
    The facts in the present case are
    distinguishable because unlike the
    language and structure of 18 U.S.C. sec.
    924, the CWA’s language is unambiguous
    and Section 309(c)(2) is an integral part
    of the CWA’s penalty structure.
    Chemetco’s reliance on a district court
    case from Pennsylvania, United States v.
    Oxford Royal Mushroom Prods., Inc., 
    487 F. Supp. 852
    , 856 (E.D. Pa. 1980), for
    the proposition that each day of
    violation is a separate offense is also
    misguided. The court in Oxford considered
    a motion to dismiss an indictment under
    the multiplicity doctrine, which prevents
    the government from charging a single
    offense in several counts, because the
    government charged individual days of
    violation under the CWA rather than a
    single crime. See 
    id. The district
    court
    denied the motion because it realized
    that whether the indictment charged the
    defendants with the days of violation
    separately or with a single course of
    conduct made no real difference because
    the CWA directs punishment for each day
    of violation. See 
    id. Therefore, all
    Oxford shows is that the indictment here
    could have charged Chemetco for each
    individual day of violation without being
    defective, not that it had to charge
    individual days separately. See 
    id. Moreover, the
    plain language of the CWA
    contradicts the argument that each day of
    violation is a separate offense. Section
    309(c)(2) allows district courts to
    impose fines "per day of violation,"
    thereby implying that violations may span
    more than one day. 33 U.S.C. sec.
    1319(c)(2). Given that generally "a court
    should not construe a statute in a way
    that makes words or phrases meaningless .
    . . or superfluous," United States v.
    Franz, 
    886 F.2d 973
    , 978 (7th Cir. 1989),
    Chemetco’s argument is unavailing.
    Furthermore, Chemetco’s interpretation of
    the CWA would subject it to a prison term
    of 2,028 years--three years for each of
    its 676 CWA violations--and we cannot
    accept that Congress intended this
    interpretation of the CWA.
    C.   Apprendi
    Even though Congress intended the number
    of violation days to be a sentencing
    factor, Chemetco argues that its sentence
    violated the rule announced by the
    Supreme Court in Apprendi. In that case,
    the Court held: "Other than the fact of a
    prior conviction, any fact that increases
    the penalty for a crime beyond the
    prescribed statutory maximum must be . .
    . proved beyond a reasonable doubt."
    
    Apprendi, 530 U.S. at 490
    (emphasis
    added).
    Despite Chemetco’s assertions, Apprendi
    is inapplicable because the CWA does not
    have a prescribed statutory maximum
    penalty. See United States v. Behrman,
    
    235 F.3d 1049
    , 1054 (7th Cir. 2000). In
    
    Behrman, 235 F.3d at 1052
    , the defendant,
    charged with bank fraud, entered into a
    plea in which he agreed to pay $611,000
    in restitution to the victim banks as
    part of his sentence, as authorized by 18
    U.S.C. sec. 3663A. The defendant claimed
    that because the district court did not
    determine the victim banks’ losses beyond
    a reasonable doubt, his sentence violated
    Apprendi. See 
    id. at 1053.
    We held that
    because 18 U.S.C. sec. 3663A required
    full restitution and did not set an
    absolute maximum amount, there was no
    statutory maximum penalty that could be
    increased by a certain finding, and
    therefore, Apprendi did not apply./3
    See 
    id. at 1054;
    see also United States
    v. Smith, 
    223 F.3d 554
    , 564-66 (7th Cir.
    2000) (holding that Apprendi did not
    apply to statute providing for a maximum
    sentence of life imprisonment).
    Section 309(c)(2) of the CWA, which
    allows for "a fine of not less than
    $5,000 nor more than $50,000 per day of
    violation," also lacks a statutory
    maximum penalty. 33 U.S.C. sec.
    1319(c)(2). Thus, even though the
    sentence imposed under Section 309(c)(2)
    of the CWA depends on a factual finding--
    the number of violation days--this
    finding cannot increase the amount of the
    fine over a prescribed statutory limit.
    See 
    Behrman, 235 F.3d at 1054
    . Therefore,
    Apprendi does not apply and it was proper
    for the district court to find the number
    of violation days by a preponderance of
    the evidence.
    Chemetco claims that the CWA does have
    a statutory maximum penalty: $50,000 per
    day of violation. Even if Chemetco’s
    argument were true, it would not mandate
    a reversal in this case because an
    Apprendi violation only occurs when the
    imposed sentence exceeds the prescribed
    statutory maximum. See 
    Apprendi, 530 U.S. at 490
    . In its supplemental sentencing
    memorandum, Chemetco urged the court to
    find seventy-one days of violation, which
    would yield a fine range of $342,500 to
    $3,425,000./4 The $3,327,500 fine that
    the district court actually imposed on
    Chemetco was less than what Chemetco
    contends was appropriate. Therefore, even
    if the CWA had a statutory maximum
    penalty of $50,000 per day of violation,
    this limit was not exceeded in this case.
    III.   Conclusion
    Because of the foregoing, we AFFIRM
    Chemetco’s sentence.
    FOOTNOTES
    /1 This provision became effective on February 4,
    1987. See Water Quality Act of 1987, Pub. L. No.
    100-4, sec. 312, 101 Stat. 7. Before then, the
    range of available fines was $2,500 to $25,000
    per day of violation. See 33 U.S.C. sec.
    1319(c)(1) (1982).
    /2 See United States v. TGR Corp., 
    171 F.3d 762
    , 763
    n.2 (2d Cir. 1999); United States v. Wilson, 
    133 F.3d 251
    , 260 (4th Cir. 1997); United States v.
    Ahmad, 
    101 F.3d 386
    , 389 (5th Cir. 1996).
    /3 We also held that Apprendi did not apply because
    restitution was not a "penalty for a crime." 
    Id. In the
    present case, we need not determine wheth-
    er a fine is a "penalty for a crime" for Apprendi
    purposes.
    /4 Chemetco admitted to five days of violation
    before February 4, 1987 and sixty-six days there-
    after. Therefore, the fine range for 71 days of
    violation is calculated as follows: (5 x $2,500
    + 66 x $5,000 = $342,500) to (5 x $25,000 + 66 x
    $50,000 = $3,425,000).