ELR Citation: ELR 20774
No(s). 92-1656 (5th Cir. Mar 17, 1993)

The court affirms the conviction of a director and treasurer of a waste removal and sewer cleaning company for unlawful discharge of industrial waste in violation of §309 of the Federal Water Pollution Control Act and a local ordinance. After the court remanded the district court's initial sentence, the district court sentenced the defendant to 33 months' imprisonment and imposed a $75,000 fine, one year of supervised release, and the mandatory assessment. The court first rejects the defendant's argument that his offense level should not have been increased for failing to secure a city permit for sewage disposal because the city only allows sewage disposal by trucks with treatment equipment. The use of improper equipment does not excuse the defendant's failure to obtain the required permit. The court holds that the district court did not err in enhancing the offense level for disposal without a permit even though this conduct was accounted for in the base offense level. The district court properly followed the clear and compelling language of that section as presently written. The court next holds that by vacating his initial sentence, the court did not preclude an offense level enhancement on remand for obstruction of justice based on perjured testimony at his original sentencing hearing. Vacating the earlier testimony in no way diminished the fact or impact of the perjury. Also, statements at sentencing about the severity of the offense of conviction and similar conduct on other occasions are patently relevant to sentencing.

[The court's prior opinion in this litigation is published at 22 ELR 21069.]

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

Counsel for Defendant-Appellant
Melvyn C. Bruder
Bruder Law Offices
1314 W. Mockingbird La., Ste. 718-E, Dallas TX 75247
(214) 637-5297

Before POLITZ, Chief Judge, HIGGINBOTHAM and WIENER, Circuit Judges.