U.S. v. Abrogar, 06-1215.

• Citation: 459 F.3d 430
• Decision Date: 18 August 2006
• Docket Number: No. 06-1215.,06-1215.
• Parties: UNITED STATES of America v. Noel ABROGAR, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

459 F.3d 430

UNITED STATES of America v. Noel ABROGAR, Appellant.

No. 06-1215.

United States Court of Appeals, Third Circuit.

Argued July 11, 2006.

Filed August 18, 2006.

Carl R. Woodward, III (Argued), Kenneth L. Winters, Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein, Roseland, NJ, for Appellant.

Michael T. Gray (Argued), Sue Ellen Wooldridge, John Smeltzer, Joseph Poux, Department of Justice, Washington, D.C., for Appellee.

Before SMITH, ALDISERT, and ROTH, Circuit Judges.

OPINION OF THE COURT

SMITH, Circuit Judge.

Appellant Noel Abrogar pleaded guilty to a one-count Information charging him with failing to keep an accurate "oil record book" in violation of 33 U.S.C. § 1908(a), part of the legislation implementing an international anti-pollution treaty to which the United States is a signatory. On appeal, Abrogar challenges the District Court's application of a six-level sentencing enhancement pursuant to § 2Q 1.3 of the United States Sentencing Guidelines (the "Guidelines"), arguing in relevant part that under the text of § 2Q 1.3 and other applicable Guidelines provisions, his offense did not "result[] in" the repeated discharges of oily waste upon which the sentencing enhancement was based. We agree. Accordingly, we will vacate Abrogar's sentence and remand the case to the District Court for resentencing.¹

I.

A.

Pollution discharges from ships are regulated by both U.S. and international law. The Act to Prevent Pollution from Ships ("APPS"), 33 U.S.C. § 1901 et seq., implements two related treaties to which the United States is a signatory. The first is the 1973 International Convention for the Prevention of Pollution from Ships, referred to as the MARPOL Protocol. The second is the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships. Together, the two treaties are generally referred to as MARPOL 73/78 ("MARPOL"), and more than 95% of the world's shipping tonnage is transported under the flags of signatories to these treaties.

Annex I to MARPOL sets forth regulations for the prevention of pollution by oil from ships. APPS authorizes the U.S. Coast Guard to issue regulations implementing the requirements of these two treaties. 33 U.S.C. § § 1903 and 1907. The Coast Guard has issued such regulations incorporating MARPOL requirements. See 33 C.F.R. § 151.01 et seq.

Annex I sets out, inter alia, the international standards for the maximum amount of oil permitted to be discharged from ships. MARPOL also requires ships to have and maintain several pieces of equipment intended to work together to measure the oil content of various waste and bilge discharges from ships and to divert discharges containing too much oil to storage tanks rather than allowing them to be discharged from the ship into the ocean.

In addition to prohibitions on oily waste discharges, the treaties require each oil tanker over a given weight to maintain a record known as an oil record book. MARPOL Annex I, Reg. 20(1). The oil record book must include records for (1) all transfers of oil; (2) management and disposal of oily wastes generated on board the vessel, including any discharges of dirty ballast or cleaning water from fuel oil tanks; and (3) the disposal of oily residues such as sludge, as well as discharges of bilge waste that has accumulated in machinery spaces. Id. at Reg. 20(2). Accidental or emergency discharges of oil or oily waste greater than 15 or 100 parts per million ("ppm") must also be recorded. These entries in the oil record book must be signed by the person in charge of the operation (in this case, Abrogar). Id. at Reg. 20(3). The oil record book must be maintained on board for not less than three years and must be kept on board the vessel and readily available at all reasonable times. Id.

The Coast Guard has the authority to board and examine the oil record book of any vessel while that vessel is in U.S. waters or at a U.S. port. 33 U.S.C. § 1904(c); 33 C.F.R. § 151.23(a)(3) and (c). The U.S. is a party to the international regime embodied in MARPOL and other treaties that require the country in which a ship is registered, known as the "flag state," to certify a ship's compliance with international standards. "Port states," such as the U.S. in this instance, conduct inspections to ensure compliance in their ports and waters. In conducting inspections, the Coast Guard typically relies on a ship's oil record book and statements of the crew to determine whether the crew is properly handling oil-contaminated water and its disposal. Failure of a ship to comply with MARPOL requirements can form the basis for U.S. action to refuse to allow that ship to enter port, to prohibit the ship from leaving port without remedial action, to refer the matter to the flag state of the vessel, or where appropriate, to prosecute the violation in the United States. See 33 U.S.C. § 1908.

B.

Noel Abrogar is a citizen of the Philippines and served as the Chief Engineer on the Motor Vessel Magellan Phoenix (the "Magellan"), a Panamanian-flagged ship managed by a Japanese company with corporate headquarters in Tokyo, Japan. Abrogar's term of service as Chief Engineer began when he boarded the Magellan on or about December 23, 2004, in Rotterdam. He was responsible for supervising the other engineers and oilers who worked in the engine room and for maintaining the ship's oil record book.

On March 25, 2005, Coast Guard inspectors conducted a port-control inspection of the Magellan to determine, inter alia, compliance with MARPOL requirements. In the course of their inspection and subsequent investigation, inspectors discovered that shortly after departing Rotterdam in December of 2004, Abrogar learned that a crew member intended to execute an improper discharge of bilge waste into the ocean. Abrogar did nothing to prevent the discharge. Prior to the ship's arrival in Panama on January 4, 2005, Abrogar made an entry in the oil record book indicating that the bilge waste and oily water from the improper discharge (and perhaps other, earlier improper discharges) had been incinerated.

The inspectors also learned that at least four other times, Magellan crew members under Abrogar's command—and with his knowledge—discharged oil sludge and other oil-contaminated waste into the ocean. Abrogar himself issued the order to discharge on at least one of these occasions. He continued to knowingly make false entries in the oil record book and intentionally failed to record the improper discharges in an attempt to conceal those discharges. During the inspection and subsequent Coast Guard investigation, Abrogar lied to inspectors and denied knowing about any illegal discharges. He maintained that his recordings in the oil record book were accurate.

Abrogar eventually admitted to his knowledge of the improper discharges, his ordering of one such discharge, and his falsification of the oil record book. On September 7, 2005, Abrogar pled guilty to a one-count Information charging him with failing to maintain an accurate oil record book as required by 33 C.F.R. § 151.25, in violation of 33 U.S.C. § 1908(a).

The Pre-Sentence Report correctly stated that the applicable Guidelines section in the case is § 2Q1.3, which provides for a base offense level of six. The report also recommended a six-level enhancement pursuant to § 2Q1.3(b)(1)(A) ("Specific Offense Characteristics"), which provides for such an enhancement if "the offense resulted in an ongoing, continuous, or repetitive discharge, release, or emission of a pollutant into the environment." Although the District Court noted the tension between a "jurisdictional question and . . . what appears to be the broad sweep of the relevant conduct factors," the Court accepted the recommendation for the six-level enhancement and, owing to the enhancement as well as other sentencing factors, sentenced Abrogar to 12 months and one day of imprisonment followed by three years of supervised release. Abrogar timely appealed, specifically challenging the six-level increase under § 2Q1.3(b)(1)(A) as an "incorrect application of the sentencing guidelines" under 18 U.S.C. § 3742(a)(2). We granted Abrogar's motion to expedite the appeal and now address the District Court's application of the sentencing enhancement.

C.

The District Court had original jurisdiction pursuant to 18 U.S.C. § 3231. We exercise appellate review under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), granting U.S. courts of appeals jurisdiction to review sentences "imposed as a result of an incorrect application of the sentencing guidelines." 18 U.S.C. § 3742(a)(2). We review the District Court's interpretation of the Guidelines de novo.² United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir. 2005) (quoting United States v. Booker, 543 U.S. 220, 259, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)).

II.

A.

The Government's primary argument in favor of the sentencing enhancement is textual in nature and runs essentially thus: the repeated discharges directed and knowingly allowed by Abrogar are "relevant conduct" vis-a-vis his offense of failure to maintain an accurate oil record book. Under the text of the Guidelines, the definition of "offense" includes the "offense of conviction" and all "relevant conduct." As such, Abrogar's "offense" as defined by the Guidelines "resulted in" repeated discharges of a pollutant, and the District Court properly applied the six-level sentencing enhancement.

We begin our analysis with the text of the relevant provisions of the Guidelines. As mentioned above, the six-level sentence enhancement adopted by the District Court was proper under § 2Q1.3 of the Guidelines only if Abrogar's "offense resulted in an ongoing, continuous, or repetitive discharge, release, or emission of a pollutant into the environment." Id. Section 1B1.1 of the Guidelines defines one's "offense" as "the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct)."...