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United States v. Kuhn

ELR Citation: 34 ELR 20002
Nos. No. 02-1031, (6th Cir., 10/01/2003)

The court holds that a district court erroneously granted a four-level downward departure in the sentencing of an individual for improperly discharging a pollutant into navigable waters and causing an employee to falsify test results to the government. The district court erred in failing to give notice to the government of its intention to grant a departure based on enhancements for the individual's role in the offense and abuse of a position of public trust. Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party's prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. Even if the district court had given notice, this downward departure was improper. It was an abuse of discretion to find that the application of the enhancements together constituted doublecounting and therefore merited a downward departure. The court also erred in departing downward based on the specific offenses for which the individual was convicted. Although the guided departures were authorized by the facts found by the district court, the facts did not authorize the additional unguided departures because the court took into account a factor already considered by the U.S. Sentencing Commission in the sentencing guidelines. The two offense-level adjustments at issue were intended to be applied cumulatively. The court also erred in granting a downward departure based on the individual's motivation and purpose because it failed to give notice to the government that it intended to depart on this basis. The court, therefore, vacates and remands the individual's sentence.

Counsel for Appellant
Jennifer J. Peregord
U.S. Attorney's Office
211 W. Fort St., Ste. 2300, Detroit MI 48226
(313) 226-9100

Counsel for Appellee
William A. Brisbois
Brisbois & Brisbois
721 S. Michigan Ave., Saginaw MI 48602
(989) 799-6363