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United States v. Bragg

ELR Citation: 30 ELR 20433
Nos. Nos. 99-1295 et al., 207 F.3d 394/(7th Cir., 03/21/2000)

The court upholds a district court decision ordering the upward adjustment of sentencing for three labor contractors who violated the Clean Air Act (CAA) and the Social Security Act in connection with asbestos abatement projects. The contractors recruited homeless men from a shelter in Tennessee to perform asbestos abatement work in Wisconsin. The contractors then fraudulently submitted training course certificates to the Wisconsin Department of Health and Family Services as "proof" that the men were trained as asbestos abatement supervisors. The contractors pled guilty to violations of the CAA and the Social Security Act but challenged the upward adjustment of their sentences. The court first holds that the district court's upward adjustment based on the unusual vulnerability of the victims was appropriate. The workers recruited from the Tennessee homeless shelter were particularly susceptible due to their poverty, homelessness, and other factors that led them to spend time at the shelter, including the possibility that they might have had literacy, drug, alcohol, and psychiatric problems. Additionally, the fact that the contractors traveled more than 800 miles to recruit the homeless men strongly suggests that they were selected due to their vulnerability. The court next holds that the district court did not double count the contractors' aggravating criminal conduct to both justify a sentencing adjustment and to attach criminal liability in the underlying conspiracy to violate the CAA. The bar on double counting only comes into play if the underlying offense itself necessarily includes the same conduct as the adjustment. However, a plain reading of the regulations relating to criminal liability under the CAA and the aggravating role adjustment guideline reveals significant differences. The aggravating role adjustment considers a multitude of factors that are not contemplated by the contractors' underlying conspiracy to violate the CAA, including the recruitment of accomplices, the degree of planning or organizing, the nature and scope of the crime, and the degree of control and authority exercised by the contractors. Moreover, an individual who may be criminally liable under the CAA is not necessarily subject to the aggravating role adjustment.

Counsel for Plaintiff
Peggy A. Lautenschlager, Ass't U.S. Attorney
U.S. Attorney's Office
660 W. Washington Ave., Ste. 200, Madison WI 53703
(608) 264-5158

Counsel for Defendants
Morris D. Berman
Law Offices of Morris D. Berman
306 E. Wilson St., Madison WI 53701
(608) 256-7765

Before Wood and Evans, JJ.