UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 95-5718

DONALD JARRELL,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, District Judge.
(CR-95-42)

Argued: September 27, 1996

Decided: December 3, 1996

Before MURNAGHAN, Circuit Judge, SMITH, United States
District Judge for the Eastern District of Virginia, sitting by
designation, and MICHAEL, Senior United States District Judge for
the Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

COUNSEL: Hunt Lee Charach, Federal Public Defender, Charleston,
West Virginia, for Appellant. Michael O. Callaghan, Assistant United
States Attorney, Charleston, West Virginia, for Appellee. ON
BRIEF: C. Cooper Fulton, Assistant Federal Public Defender,
Charleston, West Virginia, for Appellant. Rebecca A. Betts, United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Defendant Jarrell was charged in a seven count indictment of
attempting to conceal repeated discharges of fecal coliform pollutants
into the public waters, thereby polluting adjacent residential neighbor-
hoods. Defendant pled guilty to the third count of the indictment,
which accused defendant of illegally discharging a pollutant above
the level permitted by a National Pollutant Discharge Elimination
System (NPDES) permit, in violation of 33 U.S.C.§ 1319(c)(2)(A).
After obtaining the customary presentence report, the trial court sen-
tenced defendant to thirty months' imprisonment. During sentencing,
defendant argued that the court was misapplying the sentencing
guidelines, a contention that was rejected by the court. Defendant now
appeals the lower court's decisions regarding application of the sen-
tencing guidelines.

Section 2Q1.3 of the sentencing guidelines establishes the base and
specific offense levels for crimes that involve the mishandling of
environmental pollutants. The commentary to § 2Q1.3 also permits a
trial judge to enhance or reduce a defendant's specific offense level
upon consideration of certain relevant factors. On appeal, defendant
argues that the court erred by assessing a two-point upwards assess-
ment under § 2Q1.3 commentary note four and a two-point upwards
assessment under § 2Q1.3 commentary note seven. Specifically,
defendant contends that the two 2-point increases are duplicative,
unjustified, and unreasonable. We reject this argument.

The trial court established that defendant was subject to a base
offense level of six. It then used specific offense characteristics to
increase the total offense level. The court increased the total level by
six under § 2Q1.3(b)(1)(A), and by four under§ 2Q1.3(b)(4), for a
total offense level of sixteen. The court then increased the total
offense level by four, assessing two additional points based on com-

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mentary note four, and two additional points based on commentary
note seven.

Under the guidelines, the court may include a two-point enhance-
ment under § 2Q1.3(b)(1) if the court feels that such an enhancement
is appropriate after considering "the harm resulting from the emission,
release or discharge, the quantity and nature of the substance or pol-
lutant, the duration of the offense and the risk associated with the
violation." 1995 U.S.S.G. § 2Q1.3 commentary n.4. Similarly, the
guidelines permit a two-point enhancement under§ 2Q1.3(b)(4) if,
after considering "the nature and quantity of the substance involved
and the risk associated with the offense, such an adjustment appears
warranted." Id. § 2Q1.3 commentary n.7. Defendant argues that the
court cannot assess both enhancements because they are both based
on the same set of operative facts and considerations; namely, the
quantity and nature of the substance and the risk involved. He ignores
the fact that each enhancement has a different objective -- the first
to punish "an ongoing, continuous, or repetitive discharge, release or
emission of a pollutant into the environment," the second to punish
a discharge that occurs "without a permit or in violation of a permit."
Compare id. § 2Q1.3(b)(1)(A) with id. § 2Q1.3(b)(4). As this court
has previously recognized, the guidelines' "incremental adjustment
schedule" permits multiple enhancements under§ 2Q1.3. See United
States v. Ellen, 961 F.2d 462, 468-69 (4th Cir.), cert. denied, 506 U.S.
875 (1992).

Moreover, the district court explained in an extended colloquy that
the nature and seriousness of the offense justified each enhancement.
At one point, the court observed, "I could go on and on, but just to
indicate that this, in my opinion, is an extremely serious offense. It
was a health hazard. It was extremely nasty. It was so derelict on your
part, so deliberately derelict on your part." This court notes that on at
least three occasions, the Environmental Protection Agency con-
ducted "grab sampling" of waste water areas around the treatment
plant and neighborhood subdivision. One sample contained 230,000
parts of fecal coliform per 100 milliliters of waste water. The second
sample contained 750,000 parts of fecal coliform per 100 milliliters
of waste water. The third sample contained 830,000 parts of fecal
coliform per 100 milliliters of waste water. Defendant's operating
permit allowed only 400 parts per 100 milliliters of waste water.

                     3
Given the egregiousness of defendant's violations, it can hardly be
said that his offenses were of such a minor nature as to prompt this
court to hold that the district court abused its discretion in enhancing
defendant's specific offense level.

Defendant also argues that the district court erred in finding that a
six-point specific offense level was justified given that defendant pled
guilty to only one count of the indictment which did not lead to a
repetitive discharge. Determining that the entire breadth of defen-
dant's "conduct involved substantially the same harm and the offense
behavior was on-going and continuous in nature," the lower court
assessed a six-point specific offense level under§ 2Q1.3(b)(1)(A).
Defendant argues that the offense to which he pled does not meet the
requirements for grouping under § 3D1.2, and that as a result, the
counts to which he did not plead guilty cannot be considered as rele-
vant conduct for the purposes of determining whether defendant's
offense was of an ongoing nature.

In determining the applicable specific offense characteristic, a
court may consider "all acts and omissions . . . that were part of the
same course of conduct or common scheme or plan as the offense of
conviction" if such an act was "of a character for which § 3D1.2(d)
would require grouping of the multiple counts." 1995 U.S.S.G.
§ 1B1.3(a)(2). Under § 3D1.2(d), even though certain counts may not
be specifically listed for grouping, they should nonetheless be
grouped if appropriate; "a case-by-case determination must be made
upon the facts of the case and the applicable guidelines." In one of the
examples cited to support such grouping, the commentary notes that
three convictions for discharging toxic substances from a single facil-
ity would be grouped. Id. § 3D1.2 commentary n.6. The commentary
indicates that the drafters intended this type of offense to be of a char-
acter for which § 3D1.2(d) would require grouping. Therefore, even
though defendant was convicted of only one discharge violation, the
other discharges to which he did not plead guilty may be considered
for these purposes. See id. § 1B1.3 commentary n. 8 (noting that for
the purposes of determining relevant conduct, it is unnecessary for
defendant to have been convicted of all counts). Because the relevant
conduct includes the discharges to which defendant did not plead
guilty, they are nonetheless relevant for the purposes of determin-

                     4
ing the specific offense level. Accordingly, it was appropriate for the
district court to assess a 6-point specific offense level under
§ 2Q1.3(b)(1)(A).

Finally, defendant argues that his 1975 state arson conviction
should not have been counted in determining his criminal history. He
finished serving his sentence in 1979. Defendant contends that
because the instant offense took place more than fifteen years later,
the former offense cannot be counted in the criminal history.

Defendant's entire argument is premised on the belief that the other
discharges to which he did not plead guilty should not be counted in
relevant conduct. As previously explained, these counts are counted
in determining relevant conduct. For the purposes of determining
when the fifteen year period should run, the court must look to the
earliest relevant conduct. Because count four of the indictment is rele-
vant conduct that took place in 1992, the former offense of arson is
properly counted within the fifteen year period. Accordingly, the dis-
trict court's calculation of defendant's criminal history level was cor-
rect.

For these reasons, defendant's appeal will be denied and the district
court's decision affirmed.

AFFIRMED

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