ELR Citation: ELR 21069
No(s). 91-1781 (5th Cir. Apr 22, 1992)

The court holds that the federal government's recommendation of certain sentencing guidelines violates a specific plea agreement and constitutes a plain error, and that criminal sentence enhancement is appropriate where repetitive discharges have occurred. In exchange for the government's promise to make no recommendations as to the sentence of an owner of a waste disposal company, the owner agreed to plead guilty to releasing hazardous industrial waste into the city sewer system in violation of city law and the Federal Water Pollution Control Act. The court holds that the government, in suggesting a minimum base offense level and an upward increase of the sentence, had not merely corrected factual inaccuracies, but had offered recommendations in violation of the plea agreement. The court further remands and instructs the lower court to apply the sentence guideline pertaining to "mishandling of other environmental pollutants" and rely solely on the offense of conviction in selecting the appropriate base offense level. The court is not permitted to consider a defendant's relevant conduct when selecting a base offense guideline. The court next holds that the lower court properly enhanced the owner's sentence because of repetitive discharges, as instructed in the guideline, despite the absence of proof of actual environmental contamination. Finally, the court holds that the sentence should not be reduced for acceptance of responsibility or for disparity between the owner's sentence and others guilty of similar crime, because the owner failed to show that he accepted responsibility for his company's conduct, or that the disparities of his sentence from other similar violations are unwarranted.

Counsel for Plaintiff-Appellee
William Lazarus
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant-Appellant
Karl Racine
Venable, Baetjer, Howard & Civiletti
1201 New York Ave. NW, Ste. 1000, Washington DC 20005
(202) 962-4800

Before GOLDBERG, DUHE, and BARKSDALE, Circuit Judges.