1. Ian Hipwell Andre Belanger Beau James Brock
Federal Sentencing 101
Ian Hipwell
Andre Belanger
Beau James Brock

2. Introduction
We will learn what the Federal Sentencing Guidelines are and their gravitating force which dominates the entire Federal criminal process.
We will learn the history of the guidelines.
We will learn about their role in conjunction with statutory penalties and how corporations are in the cross hairs in Federal sentencing calculations.
We will learn about how environmental crimes may be calculated under them.
SPOILER ALERT – Even first offenders are staring at jail time for a knowing environmental crime if you are deemed a “manager” level employee.

3. Key Terms and Doctrines
Relevant Conduct
Departure
Variance
Aberrant Behavior
Organizer
Manager
Minimal Participant
Acceptance of Responsibility

4. History of the Guidelines
What the Federal landscape for sentencing was prior to them
When they were enacted
The transformational nature of the guidelines on the judiciary and Department of Justice

5. So, why are we here, and why do we care about the Guidelines?
Federal prosecutors must go through rigorous reviews of their case files prior to indictment
This includes a “pros review” of evidence and case objectives
They are taught to have everything lined up before indictment
Guidelines are determinative for the endgame incase evaluation for both Government and defense
All Judges use the Guidelines
Almost ends the issue - Sort of, post-Booker…
Binding and non-binding plea agreements
Possible and Federal Judicial District differences in policy

6. Basic Structure of the Federal Sentencing Guidelines
Base Offense Level
Specific Offense Characteristics
Role Enhancements
Criminal History Computation
Departures

7. How to initially calculate a possible sentence for your client
Walk through of the guidelines
Roles of mandatory minimums
Departures & variances
5K – a very special K indeed…
But, it’s not always the same everywhere…
3553(e)

8. Guidelines for Environmental Crimes
The Guidelines for all Federal crimes involving the environment are collected in Part Q of the Federal Sentencing Guideline Manual.
Always keep in mind: since United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), the Guidelines are advisory only. Although the Guidelines must still be computed by the federal courts, in each case they are but a first step. They are to be considered, along with all other factors in Title 18, United States Code, Section 3553(a), in reaching a just sentence.
After computation and consultation of the Guidelines, and with proper reasons given, the Court is free to depart upward or downward from the calculation it reaches, or to give a “variant” sentence from the Guidelines. United States v. Gutierrez, 635 F.3d 148, (5th Cir. 2011).

9. 2Q1.1-2Q1.6
Six Guideline sections, numbered 2Q1.1 through 2Q1.6 are grouped under a subheading, simply labeled “Environment”.
A second subheading, entitled “Conservation and Wildlife” contains only one Guideline, Section 2Q2.1. This includes so-called Lacey Act violations, from the illegal hunting of fish or wildlife to illegally smuggling, harvesting, or transporting endangered species like bald eagles, gorillas or sea turtles. We will not dwell on this section.

10. Section 2Q1.1: “Knowing Endangerment” from Mishandling Hazardous or Toxic Substances, Pesticides or other Pollutants (1 of 4)
Three leading statutes are referenced by the Guideline: 18 U.S.C. § 1992(b)(3) ( part of an anti-terrorism statute); 33 U.S.C. § 1319(c)(3) (part of the Clean Water Act); and 42 U.S.C. § 6928(e) (part of the Resource Conservation and Recovery Act).
For each statute, we need to first examine maximum statutory penalties, before then looking at the recommended Guideline computations.
18 U.S.C. § 1992(b)(3) is really meant to cover terrorists attacks, where the release of biological toxins or agents or hazardous materials at or near a mass transportation vehicle, is done with intent to endanger the safety of any person or with reckless disregard for safety of human life.
Statutory maximum terms are a $250,000 fine and a term of imprisonment of 20 years, or both. If a death occurs, terms of imprisonment may be increased to life, or the death penalty may be imposed.

11. Section 2Q1.1: “Knowing Endangerment” (2 of 4)
Under Title 18 offenses, certain “aggravating circumstances” can increase penalties.
Such aggravating circumstance are (1) passengers or employees being carried; or (2) high level radioactive waste or spent nuclear fuel being carried; or (3) the offense was committed with intent to endanger the safety of, or with reckless disregard to the safety of, any person, AND hazardous material was being carried,
In any such circumstance a $250,000 fine, imprisonment for up to life or, if a death of any person resulted, the death penalty can be imposed.

12. Section 2Q1.1: “Knowing Endangerment” (3 of 4)
33 U.S.C. § 1319(c)(3) (part of the Clean Water Act) is a subsection entitled “Knowing endangerment” which follows two earlier subsections of “Negligent violations” (c)(1) and “Knowing violations” (c)(2).
In successive order, the three subsections punish the negligent, or knowing, or while knowingly placing another person in imminent danger of death or serious bodily injury, violation of various discharge permits, or pretreatment program rules, or introducing any pollutant or hazardous substance into a sewer system or into a publicly owned treatment works.
Those earlier two subsections have increasing statutory maximum penalties from fines and misdemeanor sentences of up to a year in jail, to felony jail sentences of three to six years, depending upon whether the defendant has been previously convicted of a similar offense.
Subsection (c)(3), the “knowing endangerment” section, and the only one of the three which Guideline Section 2Q1.1 references, has a 15 year statutory maximum and a $250,000 fine, or both. If an organization violates the subsection, a $1 million fine may be imposed. Penalties are doubled if the conviction comes after a similar, first conviction.

13. Section 2Q1.1: “Knowing Endangerment” (4 of 4)
The third statue referenced is 42 U.S.C. § 6928(e) (RCRA).
Similar to 33 U.S.C. § 1319(c)(3) under the Clean Water Act, it is a “Knowing endangerment” provision for transporting, treating, storing, disposing of, or exporting any hazardous waste listed in the Act or any used oil, knowing that another person is placed in imminent danger of death or serious bodily injury. The maximum penalties are a $250,000 fine, 15 years imprisonment, or both. An organization can be fined $1 million.
The Guideline for all three “knowing endangerment” statutes is very simple, with only a Base Offense Level listed: 24. In the best of circumstance, Offense level 24, with a defendant having a Criminal History Category of I, yields a recommended Guidelines range of months. An Application Note encourages upward departure if death or serious bodily injury occurs.
The Offense Level can be increased by various provisions in Chapter 3 of the Sentencing Guidelines Manual. Some applicable Chapter 3 adjustments are for vulnerable victims, organizational or leadership roles in the offense, abuse of trust, use of special skills, or for obstruction or impeding the administration of justice.
Any combination of these adjustments can add months and years to a recommended Guideline sentence. And after Chapter 3, any criminal history of the defendant must be calculated in order to determine which of the six criminal history categories the defendant fits into.

14. Section 2Q1.2 Mishandling of Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering, and Falsification: Unlawfully Transporting Hazardous Materials in Commerce
The section collects at least a dozen federal statutes, scattered throughout the United States Code, punishing a variety crimes involving handling, tampering and falsification of hazardous or toxic substances or pesticides, their recordkeeping, and transportation in commerce. Most are contained in laws, generally giving the EPA broad authority.
In general, the Guideline starts with a much lower Base Offense Level of 8 than Section 2Q1.1’s “Knowing Endangerment” of 24, but, depending on the circumstances of the crime, a number of Specific Offense Characteristics can quickly add Offense Levels.
Knowledge of 2Q1.2 is where the rubber meets the road for most serious environmental crimes cases…First, let’s focus on the statutes that may be involved under 2Q1.2...

15. FIFRA 7 U.S.C. § 136j-l
Misdemeanor penalties exist for “registrant” or “producers” who knowingly distribute or sell mislabeled, adulterated, or unregistered pesticides; or who alter any labeling requirements; or fail to keep proper records; or falsely guaranty a product; or violate any suspension or cancellation order; or fail to file required reports.
Fines of from $25,000 and imprisonment of up to a year, or both, for registrants or producers give way to $1,000 fines and 30 days imprisonment, or both, for private applicators.
A three year felony and a fine of up to $10,000, or both is reserved for persons, who, with intent to defraud, use or reveal information relative to formulas of products which have been properly obtained under the Act.

16. Clean Water Act
Also under Section 2Q1.2 are the two statutes, 33 U.S.C. § 1319(c)(1) “criminal negligence” offenses and 1319(c)(2) “knowing” offenses under the Clean Water Act which we have contrasted with the more drastic “knowing endangerment” of 33 U.S.C. § 1319(c)(3), related to Guideline Section 2Q1.1.
The Oil Pollution Act failure to notify provision, 33 U.S.C. § 1321(b)(5), and also part of the Clean Water Act, is one of the dozen statutes referenced to Guideline Section 2Q1.2. It punishes the failure by a person in charge of a vessel or an onshore or offshore facility to immediately notify the appropriate agency of the United States of the discharge of oil or hazardous substances into or upon navigable waters of the United States, adjoining shorelines, or in connection with activities under the Outer Continental Shell Land Act.

17. Clean Air Act
42 U.S.C. § 7413 has a statutory maximum penalty of a $250,000 fine, five years imprisonment, or both for any person who, violates a provision of a Title V permit,
Or after proper notification, continues to knowingly violate any requirement or prohibition of a federally assumed implementation plan under the Act for air quality control.
Such plans relate to solid waste combustion, preconstruction standards, new source performance standards, stratospheric ozone control, and other such implementation plans established by the EPA.

18. CERCLA
42 U.S.C. § 9603 has a maximum penalty of a $250,000 fine, three years imprisonment, or both (five years in case of a second or subsequent conviction) for any person in charge of a vessel from which a hazardous substance in released, other than permitted, into or upon navigable waters, adjoining shorelines (or in several other instances), who fails to notify the appropriate agency of the United States, or who submits false or misleading information to such agency.

19. U.S.C. Title 43 crimes
Title 43 is entitled “Public Lands”. The Secretary of the Interior has jurisdiction. 43 U.S.C. § 1350(c) carries a maximum 10-year term of imprisonment, a $100,000 fine, or both, for anyone who knowingly and willfully (1) violates any provisions of the subchapter, which is Subchapter III of Chapter 29, entitled “Outer Continental Shelf Lands”—; or any terms of a lease, license or permit so issued which is designed to protect health, safety, or the environment, or to conserve natural resources; or (2) makes any false statement in any document required to be maintained under the subchapter; or (3) falsifies, tampers with, or renders inoperable any monitoring device or method of record required under the subchapter; or reveals any data required to be kept confidential.
Each day that a violation occurs under Clause 1 or Clause 3 listed above is a separate violation.
Not regularly investigated by EPA-CID although their agents maintain full Federal authority

20. U.S.C. Title 49 – Reckless Transportation
Title 49 deals with the Department of Transportation. The Secretary of Transportation has jurisdiction. Chapter 51 governs the transportation of hazardous materials. 49 U.S.C. § 5124 criminalizes knowing, or willful, or reckless tampering with markings, labels, placards, document descriptions, packages, motor vehicles, rail freight, aircraft, or vessels used to transport hazardous materials.
A violation carries a maximum fine of $250,000, a 5 year term of imprisonment, or both; except that if hazardous material is released which involves bodily injury or death to anyone, 10 years imprisonment may be imposed.
49 U.S.C. § criminalizes the actual delivery of property containing hazardous materials, deemed to be in violation of such regulations regarding transportation of such materials. A willful delivery to an air carrier or recklessly causing its transportation in air commerce carries a maximum fine of $250,000 and a term of imprisonment of 5 years, or both.

21. Let’s do the math for a 2Q1.2 offense
§2Q1.2(a). The Base Offense Level is 8.
Specific Offense Characteristics follow.
§2Q1.2(b)(1)(A) and (B) If ongoing, continuous, or repetitive discharges occur, add 6 more levels. If the offense “otherwise” involves such a discharge, add 4 more levels.
§2Q1.2(b)(2) If the offense resulted in substantial likelihood of death or bodily injury, increase by 9 levels.
§2Q1.2(b)(3) Disruption of public utilities, evacuation necessary, cleanup requiring substantial expenditure, add 4 more levels.
§2Q1.2(b)(4) If offense involves transportation, treatment, storage, or disposal without a permit or in violation of one, add 4 more levels.
§2Q1.2(b)(5) and (6) Read together, it seems that if a record keeping offense is done in an effort to hide a substantive environmental offense, you keep the Guideline computation at the same offense level for the substantive offense, while if it is a simple record keeping offense 2 levels are subtracted.
§2Q1.2(b)(7) If convicted for either of the last two Title 49 offenses listed above, Sections 5124 (tampering with hazmat markings, packages or vehicles transporting them) or (willful delivery of hazmat to an air carrier recklessly causing its transportation), add 2 levels.
OTHER UPWARD DEPARTURES INCLUDE: PREVIOUS VIOLATIONS OF CIVIL OR ADMISTRATIVE ORDERS FOR SIMILAR CONDUCT OR IF EXTREME PSYCOLOGICAL INJURY WAS CAUSED BY THE MISCONDUCT
Again, once that is done, all Chapter 3 adjustments must be made and the criminal history of the defendant computed before reaching an applicable Guidelines range

22. Section 2Q1.3 “Mishandling of Other Environmental Pollutants; Recordkeeping, Tampering, and Falsification”
Chapter 9 of Title 33 collects a number of misdemeanor offenses (maximum imprisonment of no more than a year) for obstructing navigable waters, wrongfully constructing bridges and removing such structures, depositing refuse in such waters, and injuring harbor improvements. See 33 U.S.C. § 403, 406, 407, and 411.
Also appearing under Section 2Q1.3 are the two statutes, 33 U.S.C. § 1319(c)(1), “criminal negligence” offenses and 1319(c)(2), “knowing” offenses, both under the Clean Water Act, and which are also listed under Section 2Q1.2.
Remember, the two sections punish either negligent (misdemeanor) or knowing (felony) violations pertaining to certain permitting sections or pretreatment program requirements, or introduction of pollutants or hazardous substances into a sewer system or a publicly owned treatment works.

23. Section 2Q1.3
33 U.S.C. § 1415(b) is part of Chapter 27, entitled “Ocean Dumping”. A violation of any of the provisions of the particular subchapter or of a permit issued under it can bring a fine of up to $250,000 and 5 years imprisonment, or both
The Act to Prevent Pollution from Ships (APPS). 33 U.S.C. § 1907 and 1908 list a host of possible violations of the MARPOL Protocol, the Antarctic Protocol, and regulations under the Chapter. Surprisingly, buried amongst a host of civil penalties is the phrase that a person who knowingly violates the MARPOL Protocol, the Antarctic Protocol, or regulations issued under the Chapter commits a Class D felony. In 18 U.S.C. § 3581, a Class D felony has a maximum term of imprisonment of 6 years
Also the Clean Air Act 42 U.S.C. § 7413 penalty provision may apply here.

24. Let’s do the math for 2Q1.3
Applying the Guideline. Although the framework is similar to §2Q1.2, there are some surprising differences.
§2Q1.3(a). The Base Offense Level is 6. [In §2Q1.2 it is 8]
Specific Offense Characteristics follow.
§2Q1.3(b)(1)(A) and (B) If ongoing, continuous, or repetitive discharges occur, add 6 more levels. If the offense “otherwise” involves such a discharge, add 4 more levels.
§2Q1.3(b)(2) If the offense resulted in substantial likelihood of death or bodily injury, increase by 11 levels. [In §2Q1.2 it is only 9]
§2Q1.3(b)(3) Disruption of public utilities, evacuation necessary, cleanup requiring substantial expenditure, add 4 more levels.
§2Q1.3(b)(4) In offense involves discharge without a permit or in violation of a permit, add 4 levels/
§2Q1.3(b)(5) If a recordkeeping offense was an effort to conceal a substantive offense, use the offense level of the substantive offense.
Again we see, that, although a modest Base Offense Level is applied, if any of the Specific Offense Levels are applicable, a defendant quickly rises to levels where imprisonment is recommended.

25. Case law interpretations of 2Q
U.S. v. Sellars, 926 F.2d. 410 (5th Cir. 1991)
Court held trial judge not clearly erroneous to have found waste water to have contaminated the environment even though it was discovered the next day.
U.S. v. Cunningham, 194 F.3d. 1186, (11th Cir. 1999)
Court held government does not have to prove actual environmental contamination in order for enhancement to apply.
Different case results cloud the issue of when the “cleanup required substantial expenditure” increase is warranted, but a 6 figure clean up seems assuredly to ring the bell, U.S. v. Bogas, 920 F.2d th Cir. 1990).
Sewage a pollutant for guideline enhancement purposes? U.S. v. Cooper, 173 F.3d. 1192, 1205 (9th Cir. 1999)
Ongoing, continuous or repetitive release can mean TWO days…U.S. v. Ortiz, 427 F.3d. 1278, (10th Cir. 2005).

26. Open Dialogue with clients
Clients need predictability
Clients’ anxiety levels can be reduced by a frank discussion of the potential consequences
Opportunity for possible 5K can only be explored through this conversation
Also opens the door to facilitate possible defenses about relevant conduct and major/minor participation

27. Early intervention with Federal Agents and Department of Justice
Agents open a case
Agents refer a case to DOJ
DOJ opens a case
Case investigation
Pre-indictment offerings and meetings
Grand Jury

28. Final Thoughts Binding vs. non-binding plea agreements
Lying to Federal Agents and Grand Jury can cause probation to morph into jail time
How multiple counts are treated under the Guidelines
Post-Booker Motion practices to move the Court to interpret the Guidelines as only advisory…
A qualified team approach in dealing with Guidelines is needed in responding to these investigations