ELR Citation: ELR 20353
No(s). 91-1203 (3d Cir. Oct 16, 1991)

In an unpublished decision, the court affirms the district court's imposition of a prison term on an individual for depositing fill in wetlands without a Federal Water Pollution Control Act §404 permit, but remands for reconsideration of the fine. The court first holds that it has jurisdiction to review the defendant's claim that the sentence is excessive. Although the court probably lacks the authority under former Federal Rule of Criminal Procedure 35 to consider reducing the sentence imposed on the counts covered by the Sentencing Guidelines, the court treats the motion as a petition for habeus corpus relief. The court declines to revisit the decision of the original panel to uphold the three-year sentence for the pre-Guidelines counts. However, the court reverses the district court's imposition of a $200,000 fine and remands for a hearing to determine the defendant's ability to pay as required by 18 U.S.C. §§3572 and 3622.

[The prior district court decision is published at 22 ELR 20536. On January 23, 1992, the district court reduced the fine to $5,000 based on the defendant's limited ability to pay.]

Counsel for Appellant
Paul D. Kamenar, Daniel J. Popeo
Washington Legal Foundation
1705 N St. NW, Washington DC 20036
(202) 857-0240

Counsel for Appellee
Christopher R. Hall, Walter S. Batty Jr., Ass't U.S. Attorneys
3310 U.S. Courthouse, 601 Market St., Philadelphia PA 19106
(215) 597-2556

Peter R. Steenland Jr., Vicki L. Plaut
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000