U.S. v. Perez

• Decision Date: 20 April 2004
• Docket Number: No. 02-16627.,02-16627.
• Citation: 366 F.3d 1178
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Emilio A. PEREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

366 F.3d 1178

UNITED STATES of America, Plaintiff-Appellee, v. Emilio A. PEREZ, Defendant-Appellant.

No. 02-16627.

United States Court of Appeals, Eleventh Circuit.

April 20, 2004.

David Michael Tarlow (Court-Appointed), Spencer & Klein, P.A., Miami, FL, for Defendant-Appellant.

Dawn Bowen, Anne R. Schultz, U.S. Atty., Lisa T. Rubio, Stephen Schlessinger, Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before WILSON and KRAVITCH, Circuit Judges, and GOLDBERG^*, Judge.

GOLDBERG, Judge:

A jury convicted Emilio Perez ("Perez") of two counts of knowingly and unlawfully discharging pollutants into wetlands of the United States without a permit, in violation of 33 U.S.C. §§ 1311(a), 1319(c)(2)(A), and 1344, and 18 U.S.C. § 2, and one count of knowingly and willfully injuring property of the Department of the Army Corps of Engineers, which resulted in damages exceeding $1,000, in violation of 18 U.S.C. §§ 1361 and 1362. The district court sentenced Perez to concurrent terms of imprisonment of 36 months on Counts 1, 2, and 3, as well as three years of supervised release. The court also ordered him to pay restitution jointly and severally with his codefendant Emi-Sar Trucking & Equipment, Inc. ("Emi-Sar"), and imposed a fine of $25,000. On appeal, Perez contends that his sentence should be vacated because the district court erred in increasing his base offense level under United States Sentencing Guideline ("U.S.S.G.") §§ 2Q1.3(b)(1)(A) and 2Q1.3(b)(4). For the reasons set forth below, we affirm Perez's convictions and sentence.

I. BACKGROUND

Perez was owner, operator, president, and director of codefendant Emi-Sar, a business that hauled aggregate and solid waste and vegetative debris. Perez was also president of Panokee Investments, which owned the majority of "Bay Bottom" and "Sand Cut," two federally protected wetland sites in Palm Beach County, Florida.¹ From September 1999 through May 2001, agents and officials from the United States Environmental Protection Agency, the Army Corps of Engineers, the Palm Beach County Sheriff's Office, the State of Florida Department of Environmental Protection, and the Palm Beach County Solid Waste Authority investigated unlawful dumping of pollutants by Emi-Sar trucks on both sites. Investigators observed unsuitable materials at the sites, including solid waste, vegetative debris mixed with plastic, shoes, clothing, household waste, mulch, woody debris, garbage, asphalt, construction materials, hydraulic fluid, car batteries, electrical wire, and horse manure.

Federal and municipal permits were not requested by or issued to Perez or Emi-Sar for the dumping of the unsuitable materials. Over the course of the investigation, agents observed that the materials had raised the elevation of the wetlands, with three to five feet of pollutants in certain areas, resulting in the loss of wetland function and habitat. Aerial photographs of Bay Bottom, preceding and post-dating Perez's ownership of the site, showed the progression of the dumping, which noticeably changed the composition of the water. Perez admitted that his trucks were responsible for dumping waste at both sites.² Moreover, the authorities informed Perez that his actions violated federal law and required the appropriate permits. Although the Army Corps of Engineers issued cease-and-desist orders to Perez and Emi-Sar, he continued to dump unlawfully.

On August 7, 2001, a federal grand jury in the Southern District of Florida indicted Perez and Emi-Sar on two counts of knowingly and unlawfully discharging pollutants into wetlands of the United States without a permit, in violation of 33 U.S.C. §§ 1311(a), 1319(c)(2)(A), and 1344, and 18 U.S.C. § 2, and one count of knowingly and willfully injuring property of the Department of the Army Corps of Engineers, which resulted in damages exceeding $1,000, in violation of 18 U.S.C. §§ 1361 and 1362. The jury returned guilty verdicts as to both defendants on all counts.

Perez was sentenced under U.S.S.G. §§ 2Q1.3(b)(1)(A) and 2Q1.3(b)(4), the guidelines governing the mishandling of nontoxic environmental pollutants. U.S.S.G. § 2Q1.3(b)(1)(A) provides a sentence enhancement by six levels for "ongoing, continuous, or repetitive discharge." Following the sentencing hearing, the district court found the enhancement warranted, but reduced it from six levels to four because the materials discharged were not the "worst type of pollutants." U.S.S.G. § 2Q1.3(b)(4) dictates a sentence enhancement by four levels if the offense involved discharge of pollutants without a permit. As advised by the probation officer, the district court applied the four-level enhancement as well.

II. DISCUSSION

Perez argues that the district court erred in giving him a four-level enhancement under U.S.S.G. § 2Q1.3(b)(1)(A), because the court did not require the government to prove that his dumping actions resulted in "actual environmental contamination." He also contends that the district court engaged in impermissible double counting by enhancing his sentence under § 2Q1.3(b)(4) for failure to obtain a permit. According to Perez, this second four-level enhancement was not warranted because his base offense level already accounted for his failure to obtain a permit.

A. § 2Q1.3(b)(1)(A) Enhancement

"We review the factual findings of a district court at sentencing for clear error, and review its interpretation of the Sentencing Guidelines de novo." United States v. Eidson, 108 F.3d 1336, 1344 (11th Cir.1997).

The district court gave Perez a four-level enhancement under U.S.S.G. § 2Q1.3(b)(1), which states, "(A) If the offense resulted in an ongoing, continuous, or repetitive discharge, release, or emission of a pollutant into the environment, increase by 6 levels; or (B) if the offense otherwise involved a discharge, release, or emission of a pollutant, increase by 4 levels." U.S. SENTENCING GUIDELINES MANUAL § 2Q1.3(b)(1) (2001). Application Note 4 of the Commentary to § 2Q1.3 adds:

Subsection (b)(1) assumes a discharge or emission into the environment resulting in actual environmental contamination. A wide range of conduct, involving the handling of different quantities of materials with widely differing propensities, potentially is covered. Depending upon the harm resulting from the emission, release or discharge, the quantity and nature of the substance or pollutant, the duration of the offense and the risk associated with the violation, a departure of up to two levels in either direction from that prescribed in these specific offense characteristics may be appropriate.

Id. § 2Q1.3, Application Note 4.

Under the government's reading of the Commentary, the government must prove only that the defendant's conduct fits the language of the guideline; if the government proves the defendant was responsible for the "discharge, release, or emission" of a pollutant, it has met its burden. According to this interpretation, the guideline assumes actual environmental contamination if the text of § 2Q1.3(b)(1) itself is met.

However, Perez insists that an assumption of actual environmental contamination is inappropriate since § 2Q1.3(b)(1)(A) pertains to dumped materials that are not "hazardous or toxic." Instead, Perez contends, the government had the burden to prove, by a preponderance of the evidence, that the dumping caused actual environmental contamination.

While interpreting § 2Q1.3 is an issue of first impression in this Circuit, we have addressed the interpretation of § 2Q1.2, which parallels § 2Q1.3 exactly.³ In United States v. Cunningham, 194 F.3d 1186 (11th Cir.1999), we held that § 2Q1.2 does not impose any additional requirements on the application of the § 2Q1.2(b)(1) enhancement beyond those contained in the guideline itself. Id. at 1201-02. That is, if the government demonstrates "a discharge, release, or emission of a hazardous substance," the enhancement applies. Id. at 1202. Accordingly, the government does not have to prove actual environmental contamination for § 2Q1.2(b)(1) to apply.⁴ Id. We reach the same conclusion with respect to § 2Q1.3. The Commentary for § 2Q1.3 does not impose any additional requirements on the application of the § 2Q1.3(b)(1)(A) enhancement beyond those contained in the guideline itself.

Our interpretation of the sentencing guidelines and accompanying commentary is governed by traditional rules of statutory construction. See United States v. Saunders, 318 F.3d 1257, 1264 (11th Cir.2003); United States v. McClain, 252 F.3d 1279, 1285 (11th Cir.2001). Where the same language appears in two guidelines, it is generally presumed that the language bears the same meaning in both. Saunders, 318 F.3d at 1264. It is also generally presumed that the disparate inclusion or exclusion of language is intentional and purposeful. Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983); see also United States v. Giltner, 972 F.2d 1563, 1565 (11th Cir.1992). Accordingly, where two sentencing guidelines are worded identically, absent any distinctions or clarifying words noted in the Commentary, they should be interpreted and applied in the same manner. See Comm'r v. Lundy, 516 U.S. 235, 250, 116 S.Ct. 647, 655, 133 L.Ed.2d 611 (1996) ("The interrelationship and close proximity of these provisions of the statute presents a classic case for application of the normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.") (citations and internal quotation marks omitted); Hunter v. United States, 101 F.3d 1565, 1575 n. 8 (11th Cir.1996) ("It is a basic rule of statutory construction that identical words [even when] used in different parts of the same act are intended to have the same meaning.") (citing Sullivan v. Stroop, 496 U.S. 478, 484, 110 S.Ct. 2499, 2504, 110 L.Ed.2d 438 (1990) (alteration in...