UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4713

MARTIN DALE FITZPATRICK,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Joseph Robert Goodwin, District Judge.
(CR-96-36, CR-96-63)

Submitted: September 30, 1997

Decided: October 17, 1997

Before ERVIN, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Gene W. Gardner, GARDNER & CYRUS, Huntington, West Vir-
ginia, for Appellant. Rebecca A. Betts, United States Attorney,
Michael O. Callaghan, Assistant 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Unpublished opinions are not binding precedent in this circuit.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:

Martin Dale Fitzpatrick pled guilty to an information charging him
in the Northern District of West Virginia with negligently causing the
Pea Ridge Public Service District to violate its permit under the
National Pollutant Discharge Elimination System by discharging raw
sewage into a river between December 1994 and February 1995. See
33 U.S.C. § 2314 (1994), 18 U.S.C. § 2 (1994). He also pled guilty
to a separate information charging him in the Southern District of
West Virginia with interstate transportation of stolen property. See 18
U.S.C. § 2314 (1994). Pursuant to Fed. R. Crim. P. 20, Fitzpatrick
consented to disposition of both charges in the Southern District of
West Virginia. He received a 36-month sentence. He appeals this sen-
tence, contending that the district court erred in determining the com-
bined offense level. See U.S. Sentencing Guidelines Manual, § 3D1.4
(1995). He also argues that the court clearly erred in finding that his
conduct caused the disruption of a public utility, and erred in finding
that an enhancement for discharge without a permit applied in his
case. We affirm.

For a year and a half, Fitzpatrick and others stole high voltage elec-
trical breakers and starters from various industrial sites and sold them.
One of the sites was the Pea Ridge Public Service District. The loss
of the breakers which controlled the pumps at a lift station rendered
the station inoperable and caused twelve million gallons of raw sew-
age to be discharged into the Guyandotte River. In March 1995, Fitz-
patrick was arrested after electrical devices stolen from an Ohio
company were discovered in his car.

The probation officer recommended an adjusted offense level of 18
for the pollution offense. This included a 4-level enhancement for dis-
ruption of a public utility and a 4-level enhancement for discharge in
violation of a permit. See USSG § 2Q1.3(b)(3)-(b)(4). The stolen
property offense was placed in a separate group and had an adjusted
offense level of 12, but carried a statutory maximum of 12 months
imprisonment. The probation officer then applied USSG § 3D1.4.
That guideline section sets out a procedure for calculating the com-
bined offense level for multiple counts when there is more than one

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group of counts. The offense level for the count or group of counts
with the highest offense level becomes the combined offense level
and may be further adjusted upward depending on the total number
of offenses and their relative seriousness. The probation officer also
recommended a 3-level adjustment for acceptance of responsibility,
resulting in a final combined offense level of 16.

Fitzpatrick objected to this calculation on the ground that the pollu-
tion offense, a Class A misdemeanor, was considered the most serious
offense because it had the highest offense level. He argued that the
lower offense level for the stolen property offense should govern the
calculation because, as a felony, the stolen property offense was the
more serious offense. The district court correctly found that, in deter-
mining the combined offense level for multiple counts, the most seri-
ous offense is the offense with the highest offense level, regardless of
its statutory designation. The district court also found the recom-
mended enhancements under USSG § 2Q1.3 appropriate and declined
to depart downward on the ground that Fitzpatrick acted negligently
rather than knowingly, although the commentary encourages such a
departure. See USSG § 2Q1.3, comment. (nn.3, 6-7).

With seven criminal history points, Fitzpatrick was in criminal his-
tory category IV. His guideline range was 33-41 months. The district
court announced its intention to impose a sentence of 36 months
imprisonment. Fitzpatrick then asserted that his sentence for both
offenses would have been less severe had the offenses been prose-
cuted separately. He complained that he was effectively being penal-
ized for consolidating the offenses in the interest of judicial economy.
The government also expressed concerns about the effect of grouping
the counts.

Citing guideline section 5G1.2 (Sentencing on Multiple Counts of
Conviction), the court ultimately imposed a sentence of 27 months for
the pollution offense and a sentence of 12 months for the stolen prop-
erty offense. Nine months of the 12-month sentence were made con-
secutive to the 27-month sentence to produce a 36-month sentence.

On appeal, Fitzpatrick first contends that the district court failed to
apply USSG § 5G1.1(a) (Sentencing on a Single Count of Convic-
tion) in determining the combined offense level for his two offenses.

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That guideline section provides that, when the guideline range is
greater than the statutory maximum, the guideline sentence shall be
the statutory maximum. From this language, he argues that the district
court should have treated the 12-month statutory maximum for his
stolen property offense as the "guideline sentence" and thus, the
"most serious offense," in determining the combined offense level
under USSG § 3D1.4. His argument confuses the functions of the two
guidelines. Section 5G1.1 does not come into play until the guideline
range has been determined; moreover, it does not apply at all when
multiple counts are involved. Therefore, Fitzpatrick's argument is
meritless.

Second, Fitzpatrick maintains that the district court clearly erred in
finding that a public utility was disrupted, see USSG § 2Q1.3,
because service to consumers was not affected. Fitzpatrick character-
izes the effect of his conduct as an "interruption" rather than a "dis-
ruption" of the facility. The district court used the term "interruption"
in its finding, but found that loss of the breakers had a significant
effect on the sewer plant, which "did not work" without them. Disrup-
tion is more than simple interference or interruption. See United
States v. Rutana, 18 F.3d 363, 365 (6th Cir. 1994). In this case, a sew-
age treatment lift station was disabled and millions of gallons of raw
sewage were discharged into the river. Replacement of the stolen
electrical equipment cost the Public Service District approximately
$56,000. On these facts, we find that the district court did not clearly
err in making the enhancement for disruption of a public utility.

Last, Fitzpatrick challenges the enhancement for an offense involv-
ing violation of a permit. He does not dispute that the Public Service
District violated its permit to operate by discharging untreated sew-
age, but argues that the enhancement applies only to businesses and
persons who operate plants subject to Clean Water Act regulations.
We are not persuaded. As the district court found, the guideline
applies to anyone convicted of a violation of the statute. We find that
the enhancement was correctly made.

The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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