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United States v. LeBlanc

ELR Citation: 29 ELR 21029
Nos. 98-1647, 169 F.3d 94/48 ERC 1284/(1st Cir., 03/05/1999)

The court vacates a sentence imposed under the U.S. Sentencing Guidelines (USSG) against a Canadian who pled guilty to eight counts of violating the Clean Air Act and six counts of violating a federal customs statute for selling freon to U.S. customers. Because all of the counts reflected harm by the same importation scheme, they were grouped together under USSG §3D1.2(b). The district court concluded that the defendant should be sentenced under the customs tax guideline and associated tax loss table based on the amount of federal excise taxes on freon that the U.S. producers avoided by dealing with the defendant. The district court set the base offense level at 17 and reduced this figure by three levels for acceptance of responsibility.

The court first holds that the environmental offense guidelines' offense level of six represented the controlling offense level, subject to remaining adjustments and possible departure. Where counts are grouped together as closely related, the grouping rules are quite specific: the next step is to determine the highest offense level applicable to any one count among all of the counts thus grouped. Here, the base offense level for each of the customs counts was four, and no specific adjustment was proposed. The offense level for each of the environmental offense counts was six, even if no specific offense adjustments applied. In addition, quite apart from the grouping rules, the customs tax guideline itself contains the following cross-reference: if the offense involves a contraband item covered by another offense guideline, apply that offense guideline if the resulting offense level is greater. The district court may well have thought that the base offense level of 17 reached under its "alternative measure" approach approved in application note 2 of the customs tax guideline represented the proper comparison with the offense level of 6 reached under the environmental guideline. However, a close reading of the application note indicates that the alternative measure is to be achieved by a departure. The court then holds that the comparison of offense levels should be made before possible departures rather than afterward. This is explicit in the grouping guidelines. Moreover, the adjusted offense level and criminal history computed under the guidelines create a presumptive, deliberatively narrow range or baseline for the sentence; in the interest of equal treatment, most defendants sharing these pertinent characteristics will get a sentence within the range. The court next holds that on remand a departure could be readily justified. Even if the customs and environmental offenses are grouped as closely related, they failed to account at all for a third threat to the public caused by the defendant's conduct—namely, a loss of revenues through excise tax losses. Further, the environmental harm in this case itself may be outside the heartland of its guideline, making it an atypical case.

Counsel for Appellee
Ronald M. Spritzer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellant
Wayne R. Foote
Foote & Temple
157 Park St., Ste. 26, Bangor ME 04401
(207) 990-3430

Before Selya and Coffin, JJ.