United States v. Kelly

No. 99-5327 (238 F.3d 425) (6th Cir. December 28, 2000)

ELR Digest

The court holds that a district court abused its discretion in granting a downward departure from the U.S. Sentencing Guidelines (USSG) to a pest control applicator who was convicted of 20 counts of misdemeanor Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) violations for the illegal sale and use of the toxic pesticide methyl parathion. The applicator applied methyl parathion to the homes of his pest control customers in contravention of his FIFRA permit. After his conviction, the applicator moved pursuant to USSG § 5K2.0 for a downward departure in the government's recommended sentencing range of 41 to 51 months. The district court reduced the applicator's sentence to 600 days because the court found that the applicator did not appreciate the severity of the harm that methyl parathion caused and because the misdemeanor nature of the crime did not warrant the severity of the sentence.

The court first holds that the downward departure was improper. When contemplating a departure from the USSG, a court should consider if aspects of the case are outside the heartland of cases supporting the USSG recommended sentence and whether the departures on these aspects are forbidden, encouraged, or discouraged. Although the district court's reasons for departure are not forbidden by the USSG, the USSG and the specific comments concerning FIFRA violations take into account multiple misdemeanor convictions. Thus, the misdemeanor nature of the applicator's crimes is insufficient to sustain a downward departure. Likewise, the lack of knowledge of serious harm is adequately contemplated by FIFRA and the accompanying guidelines. Thus, the applicator's lack of understanding of the serious harm he caused does not support a downward departure.

The full text of this decision is available from ELR (10 pp., ELR Order No. L-321).

[Counsel not available at this printing.]

[31 ELR 20366]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]