United States v. Sawyer

• Decision Date: 03 June 2016
• Docket Number: No. 15–5181,15–5181
• Citation: 825 F.3d 287
• Parties: United States of America, Plaintiff–Appellee, v. Mark C. Sawyer, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

825 F.3d 287

United States of America, Plaintiff–Appellee

v.Mark C. Sawyer, Defendant–Appellant.

No. 15–5181

United States Court of Appeals, Sixth Circuit.

Argued: March 8, 2016

Decided and Filed: June 3, 2016

ARGUED: Francis L. Lloyd, Jr., Law Office of Francis L. Lloyd, Jr., Knoxville, Tennessee, for Appellant.Matthew T. Morris, United States Attorney's Office, Knoxville, Tennessee, for Appellee.ON BRIEF: Francis L. Lloyd, Jr., Law Office of Francis L. Lloyd, Jr., Knoxville, Tennessee, Ashley Meredith Lowe, Baker, Donelson, Bearman, Caldwell & Berkowitz, Knoxville, Tennessee, for Appellant.Matthew T. Morris, United States Attorney's Office, Knoxville, Tennessee, for Appellee.

Before: BOGGS, GIBBONS, and GRIFFIN, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

In 2006, Mark Sawyer and four co-defendants formed A&E Salvage and purchased the salvage rights to a former industrial site in eastern Tennessee in order to demolish the buildings on site and obtain salvageable material.Despite the presence of large amounts of regulated asbestos-containing material (RACM), A&E Salvage knowingly failed to comply with the National Emission Standards for Hazardous Air Pollutants (NESHAP) for asbestos.The Environmental Protection Agency(EPA) eventually intervened and cleaned up the site, pursuant to its power under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) at a total cost of over $16 million.Sawyer eventually pled guilty to one count of conspiring to violate the Clean Air Act, 18 U.S.C. § 371.The district court sentenced Sawyer to a 60–month prison term and held Sawyer and his co-defendants jointly and severally liable for $10,388,576.71 in restitution to the EPA.Sawyer challenges his sentence and the district court's restitution award.For the reasons that follow, we affirm.

I.

Sawyer, along with four co-defendants, formed A&E Salvage for the purpose of recovering salvageable materials, such as copper, steel, and aluminum, from the site of the former Liberty Fibers rayon plant in Hamblen County, Tennessee.The site occupied approximately 300 acres and contained multiple buildings, a water treatment facility, as well as extensive above ground piping.Demolition at the site began in October 2006.The defendants' business records show that A&E Salvage intended to salvage materials within seven buildings on site and then demolish them.At the time A&E Salvage purchased the salvage rights, many of the buildings on site contained RACM, such as pipe-wrap, boiler insulation, roofing materials, and floor tiles.Sawyer and his co-defendants were aware that the site contained RACM, and much of the RACM on site was marked with red dots.

Despite the presence of RACM, the defendants' salvage and demolition activities failed to comply with the NESHAP standards governing the handling and disposal of asbestos.Among other violations, laborers at the site were not provided with the proper safety equipment such as respirators or protective suits.Some workers were asked to “remove friable asbestos without adequately wetting it,” as required by the NESHAP, while others were made to seal and pack inadequately wetted asbestos for disposal.CA6 R.9, PSRat 6.

On August 8, 2008, the EPA and A&E Salvage entered into a consent agreement whereby A&E Salvage agreed to correct the asbestos violations and comply with the NESHAP during its future removal and demolition activities.On March 10, 2009, the EPA terminated the consent agreement and issued an immediate compliance order to A&E Salvage, Sawyer, and the other defendants.The order stated that all individuals were to cease any activity on the site.Three weeks later, on March 31, 2009, federal agents searched the site, seized documents, and took samples of RACM.The investigators estimated that nearly all 300 acres of commercial property were contaminated with asbestos.Thereafter, the EPA, exercising its power under CERCLA, cleaned up the site, at a total cost of $16,265,418.

In 2011, a grand jury indicted Sawyer and his co-defendants for conspiring to violate the Clean Air Act and defraud the government, in violation of 18 U.S.C. § 371.The indictment also charged four substantive counts of Clean Air Act violations.Three years after the indictment,¹ Sawyer pled guilty to one count of conspiring to violate the Clean Air Act, 18 U.S.C. § 371.As part of his plea agreement, Sawyer explicitly waived his right to appeal a sentence within the guidelines range.He only retained the right to appeal any sentence of imprisonment above the guidelines range.

On October 14, 2014, the probation office filed its presentence investigation report (PSR), which calculated a guideline sentencing range of 87 to 108 months.The statutory maximum for offenses under 18 U.S.C. § 371 is 60 months, and because the low end of Sawyer's range was above the statutory maximum, his effective range was 60 months.The district court ultimately sentenced Sawyer to a 60–month term of imprisonment.

On the issue of restitution, the PSR stated that “the final cost for the clean-up at the Site was $16,265,418” but that “an exact amount in relation to requested restitution is not known.”CA6 R.9, PSRat 18.The PSR also specified “[it] is believed that [information supporting the government's restitution claim] will be provided to the Court prior to the sentencing of the defendants.”Id.

On October 31, 2014, three weeks before the sentencing hearing, the United States submitted notice that it sought restitution in the amount of $10,688,576.71, a subset of the total cleanup costs.The final amount requested did not include indirect costs such as attorney's fees and other administrative costs and associated travel costs.Attached to its claim, the United States included a spreadsheet known as a SCORPIOS report, which itemized the costs the EPA incurred to pay contractors who undertook the bulk of the cleanup.The report also included direct costs associated with EPA personnel managing the cleanup, which were itemized by individual employees.The government further argued that restitution was mandatory in this case, pursuant to 18 U.S.C. § 3663A.On November 10, 2014, Sawyer filed a reply in support of his motion to dismiss the restitution claim, which set forth his objections to the adequacy of the SCORPIOS report to support a restitution award.

On November 19 and 20, 2014, the district court held a sentencing hearing.The court heard the testimony of Karen Buerki, an on-scene coordinator for the EPA, who described the EPA's cleanup efforts and corroborated the costs in the SCORPIOS report.In particular, she testified that the government was only seeking its direct costs for cleaning up the site, and not indirect costs like attorney's fees.On the subject of other hazardous materials found on site, Buerki estimated that the EPA incurred approximately $300,000 cleaning up and removing materials that did not contain asbestos.The government also presented testimony from multiple laborers involved in A&E Salvage's operations who testified to Sawyer's role in the conspiracy and to the unsafe conditions on site.

After two more days of argument in January 2015, the court entered an order finding that restitution was mandatory in this case, pursuant to § 3663A, and finding that the government had established that it was entitled to $10,388,576.71.The court found the SCORPIOS report to be a reliable indicator of the EPA's direct costs, and it credited Buerki's testimony.In arriving at the final restitution amount, the court subtracted $300,000 from the government's requested amount based on Buerki's testimony that the EPA expended that amount removing hazardous substances other than asbestos.

Following this order, the district court entered judgment against Sawyer, sentencing him to 60 months in prison and ordered him and his co-defendants, jointly and severally, to pay $10,388,576.71 in restitution to the EPA.

II.

This court reviews de novo whether a defendant is appealing an issue within the scope of an appellate waiver.United States v. Toth , 668 F.3d 374, 378(6th Cir.2012).

Sawyer claims that his 60–month sentence is substantively unreasonable, arguing that it was unreasonable for the district court to sentence him, an individual with no criminal history who pled guilty, to the statutory maximum prison term, particularly in light of the fact that his co-defendants were sentenced to lesser terms.Sawyer concedes, however, as he must, that he“waived his right to appeal from a sentence not above the sentencing guideline range ... [and that] his term of imprisonment of 60 months was ... within the advisory Guidelines range.”CA6 R. 16, Appellant Br.at 27.“It is well settled that a defendant may waive any right, even a constitutional right, by means of a plea agreement.”Toth , 668 F.3d at 377(quotingUnited States v. Calderon , 388 F.3d 197, 199(6th Cir.2004) ).This court construes waivers such as Sawyer's to be binding, and by appealing an issue “that [he] stipulated to and agreed not to contest [Sawyer] is attempting to void the plea agreement.”United States v. Bazzi , 94 F.3d 1025, 1028(6th Cir.1996).When a criminal defendant attempts to appeal an issue within the scope of an appellate waiver provision, “[o]nly challenges to the validity of the waiver itself will be entertained on appeal.”Toth , 668 F.3d at 377.Given Sawyer's concessions and the fact that he does not dispute that he entered his plea agreement knowingly and voluntarily, we decline to review the reasonableness of his sentence.

III.

Restitution orders are subject to a bifurcated standard of review.“Whether a restitution order is permitted under the law is subject to de novo review,”United States v. Elson , 577 F.3d 713, 720(6th Cir.2009)(citingUnited States v. Johnson , 440 F.3d 832, 849(6th Cir.2006) ), whereas “the amount of restitution ordered is reviewed under the abuse of discretion standard,”Johns...