ELR Citation: ELR 21241
No(s). 90-3343 (6th Cir. May 8, 1991)

The court holds that a district court improperly made a downward departure from the sentencing guidelines when it sentenced a co-owner and chief executive officer of a metal finishing company who had pled guilty to 18 counts of knowingly discharging pollutants into a public sewer system in violation of pretreatment standards under the Federal Water Pollution Control Act (FWPCA). A presentence report was prepared indicating that the defendant's offense level under federal sentencing guidelines was 18, which translated into a term of imprisonment from 27 to 33 months. The offense level of 18 was derived from the sum of pertinent factors under the guidelines, including eight levels for mishandling hazardous or toxic substances, six levels for repetitive discharges, four levels for disrupting a public utility, two levels for playing a leadership role, and a decrease by two levels for accepting responsibility. However, at the sentencing hearing, the district judge departed downward from level 18 to six, ordering five years' probation, a fine of $90,000 ($5,000 per violation), and 1,000 hours of community service.

The court first finds that the district judge relied on the defendant's ownership of another business, which might fail if the defendant were to be incarcerated, as a basis for departing from the sentencing guidelines. The court holds that there is nothing special about defendant's status as an employer that would warrant a downward departure. The guidelines specifically provide that a defendant's socioeconomic status is not relevant in determining a sentence. The very nature of crimes like defendant's dictates that many defendants will likely be employers. The court also finds that the district judge departed from the guidelines based on his belief that the minimum fine was "harsh" in combination with the term of imprisonment called for by the guidelines, and that defendant's company did not have the economic "wherewithal" to comply with changing federal effluent standards. The court holds that neither the imposition of a "harsh" fine nor economic considerations are proper bases for departing from the sentencing guidelines. Moreover, the court holds that a sufficient basis exists for remanding defendant's sentence to the district court for resentencing, while not requiring the resentencing of defendant's co-defendants. The co-defendants pled guilty to negligent, rather than knowing, violations of the FWPCA, and downward departure may be warranted in cases involving negligent violations. In addition, the co-defendants were minimal participants in the violations, while defendant's leadership in the violations required an increase of two levels under the guidelines. Thus, the court remands to the district court for resentencing, and observes that the district court need not require a fine for each violation, as the district judge determined was necessary in the original sentencing.

Counsel for Appellant
Gregory C. Sasse
U.S. Attorney's Office
1404 E. Ninth Street, Cleveland, OH 44114
(216) 363-3982

Counsel for Appellee
Charles E. Dunlap
34 Federal Plaza W., Ste. 700, Youngstown, OH 44503
(216) 744-0022

Before: KENNEDY and NORRIS, Circuit Judges; and MILES, Senior District Judge.^*