ELR Citation: ELR 20654
No(s). 90-1321 (1st Cir. Jan 4, 1991)

The court affirms a district court decision sentencing a corporation's owner to 15 months in jail, and one year of supervised release conditioned on the payment of a $60,000 municipal fine, for knowingly discharging excessive amounts of zinc and cyanide into a city sewer system in violation of the Federal Water Pollution Control Act. The court first holds that the district court's decision to increase defendant's offense level under the U.S. Sentencing Commission's Guidelines Manual for disruption of a public utility was not clearly erroneous. The data report from regional utilities, the testimony at trial, the recommendation of the presentence investigation (PSI) report, and the questionable validity of defendant's expert affidavits all indicated that the district court had adequate evidence before it to adjust upward defendant's offense level. The district judge prepared a sentencing memorandum indicating that he had adopted all factual statements contained in the PSI report and had completely adopted the government's recommendations. The court next holds that the memorandum, combined with the judge's explanation at the sentencing hearing on how he reached the sentence under the Guidelines Manual, satisfies the required finding under the Federal Rules of Criminal Procedure 32(c)(3)(D). Finally, the court holds that the district court was not required to hold an evidentiary hearing at the sentencing hearing where defendant did not request one, and that the district court did not improperly condition defendant's term of supervised release on the payment of a municipal fine.

Counsel for Appellant
Arthur R. Silen
6 Beacon St., Ste. 1115, Boston MA 02108
(617) 227-3305

Counsel for Appellee
Richard E. Welch III, Ass't U.S. Attorney
1107 Post Office and Courthouse, Boston MA 02109
(617) 223-4265

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and ATKINS,^* Senior Districit Judge.