U.S. v. Kuhn, 99-20060-BC.

• Decision Date: 12 January 2005
• Docket Number: No. 99-20060-BC.,99-20060-BC.
• Parties: UNITED STATES of America, Plaintiff, v. Michael J. KUHN, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

351 F.Supp.2d 696

UNITED STATES of America, Plaintiff, v. Michael J. KUHN, Defendants.

No. 99-20060-BC.

United States District Court, E.D. Michigan, Northern Division.

January 12, 2005.

Michael J. Hluchaniuk, U.S. Attorney's Office, Bay City, MI, for Plaintiff.

Edward J. McNeely, III, McNeely, Crampton, Grand Rapids, MI, William A. Brisbois, William Brisbois & Associates, Saginaw, MI, for Defendants.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR DOWNWARD DEPARTURE

LAWSON, District Judge.

The defendant, Michael J. Kuhn, is the former superintendent of the Bay City Wastewater Treatment Plant. He was charged in a four-count indictment with criminal violations of the Clean Water Act, 33 U.S.C. § 1311, et seq. (the Act). Two counts of the indictment allege that the defendant caused the discharge of sewage sludge into a ditch that led directly into the Saginaw River. The other two counts alleged violations of the reporting requirements of the Act in an incident unrelated to the discharge charged in the first two counts. Kuhn was convicted of all counts after a three-week jury trial, but this Court dismissed count two on double jeopardy grounds. United States v. Kuhn, 165 F.Supp.2d 639 (E.D.Mich.2001). The Court conducted a sentencing hearing on October 18, 2001 and determined that the net offense level under the United States Sentencing Guidelines Manual was sixteen, which, when combined with Kuhn's criminal history category of one, yielded a range of 21 to 27 months. However, the Court determined that a sentence of that length would not serve the ends of justice in this case and was outside the "heartland" of such offenses as contemplated by the Federal Sentencing Guidelines and therefore departed downward four levels on grounds explained more fully below. The Court then sentenced Kuhn to six months in custody, which was to be served in a community corrections center, six months of supervised release, and a fine of $6000.

Kuhn has served his sentence. However, the government was not satisfied and appealed the sentence. On October 1, 2003, the court of appeals held that the four-level departure was erroneous and vacated the sentence. The court remanded the case for resentencing with instructions to give the government notice of any intended basis for departing from the Sentencing Guidelines. There was no other limitation on the Court's sentencing prerogative stated in the mandate. United States v. Kuhn, 345 F.3d 431, 440 (6th Cir.2003).

A new sentencing hearing was held on April 13, 2004. The defendant moved for a downward departure on the grounds of aberrant behavior under U.S.S.G. Section 5K2.20. The Court considered and denied the defendant's motion for a downward departure on that ground. The defendant then orally moved for a downward departure on the basis of his employment history and charitable deeds under Sections 5K2.0(c) and 5H1.11. The Court took the motion under advisement to give the parties ample time to file whatever submissions they desired. In the interim, however, the sentencing landscape changed dramatically with the Supreme Court's decision in Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which invalidated a state sentencing scheme in which a defendant's sentence exposure within the statutory maximum penalty could be increased under the Sentencing Guidelines by judge-found facts that had not been determined by a jury. The Court stated: "the relevant `statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts `which the law makes essential to the punishment'... and the judge exceeds his proper authority." Id. at 2537 (citation omitted). The possible implications of the Blakely decision on the Federal Sentencing Guidelines was obvious but uncertain, and the Supreme Court granted certiorari on two cases to address those points. See United States v. Booker, ___ U.S. ___, 125 S.Ct. 11, 159 L.Ed.2d 838 (2004) (granting petition for certiorari); United States v. Fanfan, ___ U.S. ___, 125 S.Ct. 12, 159 L.Ed.2d 838 (2004) (same). The cases were argued on October 3, 2004.

In the meantime, the Sixth Circuit had determined that the Federal Sentencing Guidelines remained intact and directed district courts to continue operating under the Sentencing Guidelines until further guidance was received. United States v. Koch, 383 F.3d 436, 438 (6th Cir.2004) (en banc) (noting that "[w]e are not the first court to consider this question and we will not be the last, as the Supreme Court has scheduled oral arguments on this question for October 4, 2004.... Because we cannot expect a final answer from the Court for several months and because the judges in this Circuit deserve guidance in the interim, we granted Koch's en banc petition. We now join our colleagues in the Second and Fifth Circuits in determining that Blakely does not compel the conclusion that the Federal Sentencing Guidelines violate the Sixth Amendment"). The court acknowledged that the law may change. Id. at 443 (stating: "It may be that the trajectory of Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)], Ring [v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)] and Blakely will end with a nullification of the Guidelines. But, in the face of these relevant precedents, it is not for us to make that prediction or to act upon it. Not only would such a ruling be of some consequence to the Guidelines, but it also would be in tension with whole bodies of law that the lower courts long have been obliged to follow"). Until that time, however, the Court was to apply the sentencing rules prescribed by the Sentencing Guidelines Manual.

On January 12, 2005, the Supreme Court held that the Federal Sentencing Guidelines were unconstitutional. United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, ___ L.Ed.2d ___ (2005). The Court reached this conclusion in two stages, with different members comprising the majority at each stage. First, the Court reaffirmed the constitutional principle first articulated in the sentencing context in Apprendi v. New Jersey, and reaffirmed in Blakely: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Id., at 756. (opinion of the Court by Stevens, J.) This principle, the Court held applies to "sentencing factors" that serve to increase the applicable sentencing range prescribed by the Federal Sentencing Guidelines because the Guidelines "are mandatory and binding on all judges ... [and] have the force and effect of laws." Id., at 742. (The Court observed that "[i]f the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment." 125 S.Ct. at 750). Second, the Court held that as a consequence of its first holding, Title 18 U.S.C., Section 3553(b)(1), which makes the Sentencing Guidelines mandatory, is "incompatible with today's constitutional holding... [and] must be severed and excised." Id., at 756 (opinion of the Court by Breyer, J.). Therefore, "the Guidelines effectively [are] advisory ... requir[ing] a sentencing court to consider Guideline ranges ... but permit[ting] the court to tailor the sentence in light of other statutory concerns as well." Ibid.

This Court has considered the applicable Guideline range as originally calculated as well as other factors set forth in 18 U.S.C. § 3553(a), namely, the nature and circumstances of the offense and the defendant's history and characteristics, the need to promote respect for the law and provide just punishment in light of the seriousness of the offense, deterrence, the protection of the public from further crimes of the defendant, and rehabilitation. The Court now proceeds to determine Kuhn's motion for downward departure based on the applicable — and now advisory — Federal Sentencing Guidelines provisions. Within the framework of the Guidelines and the pre-Booker departure jurisprudence in this Circuit, the Court concludes that, based on the facts in the record concerning the defendant's charitable contributions, good works, community service, and employment history, a downward departure is justified in this case under Sections 5K2.0(c) and 5H1.11. Accordingly, the Court will grant the requested departure and sentence the defendant below the recommended Guideline range.

I.

The facts of the case for sentencing purposes were summarized by the court of appeals as follows:

Michael J. Kuhn was sentenced to six months at a halfway house and six months of supervised release following his conviction for improperly discharging a pollutant into navigable waters, causing an employee to falsify test results in records submitted to the government, and signing and submitting a report to the government that he knew contained false test results. The government ... appeal[ed] a four-level downward departure granted by [this Court] to Kuhn. [On October 1, 2003, the Sixth Circuit vacated Kuhn's sentence and remanded the case to this Court for resentencing.]

Kuhn was the Superintendent of the Bay City, Michigan, Wastewater Treatment Plant (the Plant). The wastewater that comes into the Plant goes through a number of stages before being released into the Saginaw River. On or about August 25, 1996, during the midnight shift, staff at the Plant began cleaning the chlorine contact chamber, which is the penultimate stage of the process. The Plant had a National Pollutant Discharge Elimination System (NPDES) permit...