                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-11-2004

USA v. Landmesser
Precedential or Non-Precedential: Precedential

Docket No. 03-2958




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Recommended Citation
"USA v. Landmesser" (2004). 2004 Decisions. Paper 373.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/373


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                     PRECEDENTIAL          D. Toni Byrd (Argued)
                                           James V. Wade
   UNITED STATES COURT OF                  Office of Federal Public Defender
APPEALS FOR THE THIRD CIRCUIT              Middle District of Pennsylvania
                                           Williamsport, PA 17701

                                           Daniel I. Siegel
              No. 03-2958                  Office of Federal Public Defender
                                           Middle District of Pennsylvania
                                           Harrisburg, PA 17101

   UNITED STATES OF AMERICA                       Attorneys for Appellant

                    v.                     Christian A. Fisanick (Argued)
                                           George J. Rocktashel
       ROBERT LANDMESSER,                  Thomas A. Marino
                    Appellant              Office of United States Attorney
                                           Middle District of Pennsylvania
                                           Williamsport, PA 17701

   On Appeal from the United States               Attorneys for Appellee
  District Court for the Middle District
              of Pennsylvania
  District Judge: The Honorable Judge            OPINION OF THE COURT
James F. McClure, Jr.
            (D.C. No. 03-cr-35)            POLLAK, District Judge.
                                                   On December 25, 2002, appellant
                                           Robert Landmesser (“Landmesser”), along
          Argued May 5, 2004
                                           with two persons not involved in this
                                           appeal, stole anhydrous ammonia from an
  Before: SLOVITER and FUENTES,
                                           agricultural supply business in Mill Hall,
Circuit J and POLLAK, District Judge*
                                           Pennsylvania. The anhydrous ammonia
                                           was to be used to manufacture
        (Filed: August 11, 2004)
                                           methamphetamine. During the theft,
                                           anhydrous ammonia vapor was released
                                           from the tanks, burning Landmesser’s eyes
                                           and throat. On the next day, Pennsylvania
   *
                                           state troopers arrested Landmesser.
       The Honorable Louis H. Pollak,
Senior District Judge for the Eastern             A federal grand jury returned a one-
District of Pennsylvania, sitting by       count indictment against Landmesser on
designation.                               February 13, 2003, charging him with theft
of anhydrous ammonia in violation of 21           imprisonment. 3 Built into the sentence
U.S.C. § 864(a)(1)1 and 18 U.S.C. § 2.2           was a two-level enhancement of the base
Landmesser entered a plea of guilty, and,         offense level pursuant to the specific
based on the factual findings and guideline       offense characteristic at U.S.S.G. §
calculations set forth in the probation           2D1.12(b)(2), which applies when the
official’s presentence report, the District       offense involves an “unlawful discharge,
Court sentenced Landmesser to 24 months           emission, or release” into the environment
                                                  of a “hazardous or toxic substance.” The
                                                  District Court concluded that (1)
                                                  anhydrous ammonia is a “hazardous
                                                  substance” and (2) the release of the
   1
                                                  anhydrous ammonia during the theft
       a) It is unlawful for any                  constituted an “unlawful discharge,
       person – (1) to steal                      emission, or release.”
       anhydrous ammonia, . . .
       knowing, intending, or                             Landmesser timely filed this
       having reasonable cause to                 appeal.4 While Landmesser does not
       believe that such anhydrous                dispute the District Court’s finding that
       ammonia will be used to                    anhydrous ammonia is a “hazardous
       manufacture a controlled                   substance,” he contends that the release of
       substance in violation of                  the anhydrous ammonia was not
       this part.                                 “unlawful,” and, therefore, that the two-
                                                  level enhancement grounded on guidelines
21 U.S.C. § 864(a)(1).                            section 2D1.12(b)(2) was unwarranted.

   2                                                      For the reasons set forth below, we
       (a) Whoever commits an
                                                  conclude that the two-level enhancement
       offense against the United
                                                  of Landmesser’s sentence was not
       States or aids, abets,
                                                  justified. Accordingly, we will remand the
       counsels, commands,
                                                  case to the District Court for resentencing.
       induces or procures its
       commission is punishable                   District Court Sentencing Ruling
       as a principal.
       (b) Whoever willfully
       causes an act to be done                      3
                                                         The sentence also included a
       which if directly performed                three-year term of supervised release, a
       by him or another would be                 special assessment of $100 and a
       an offense against the                     required payment of $71.52 in restitution.
       United States, is punishable
                                                     4
       as a principal.                                   This court has appellate
                                                  jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 2.                                    18 U.S.C. § 3742.

                                              2
       The District Court based its                          manufacture a
sentencing ruling on the presentence                         controlled
report, which calculated Landmesser’s                        substance.
offense level pursuant to the applicable
offense guideline – U.S.S.G. § 2D1.12.
Section 2D1.12 provides, in relevant part:       (b)   Specific        Offense
                                                       Characteristics
      (a)    Base Offense Level (Apply
             the greater):                             (1)   I f      t h e
                                                             defendant (A)
             (1)    12, if the
                                                             intended to
                    defendant
                                                             ma nuf a c ture
                    intended to
                                                             methampheta-
                    manufacture a
                                                             mine, or (B)
                    controlled
                                                             k n e w ,
                    substance or
                                                             believed, or
                    knew       or
                                                             h      a      d
                    believed the
                                                             reasonable
                    prohibited
                                                             cause        to
                    f l a s k ,
                                                             believe that
                    equipment,
                                                             prohibited
                    chemical,
                                                             f l a s k ,
                    product, or
                                                             equipment,
                    material was
                                                             chemical,
                    to be used to
                                                             product, or
                    manufacture a
                                                             material was
                    controlled
                                                             to be used to
                    substance; or
                                                             ma nuf a c ture
             (2)    9,   if th e                             methampheta-
                    defendant had                            mine, increase
                    reasonable                               by 2 levels.
                    cause      to
                                                       (2)   If the offense
                    believe the
                                                             involved (A)
                    prohibited
                                                             an unlawful
                    f l a s k ,
                                                             discharge,
                    equipment,
                                                             emission, or
                    chemical,
                                                             release into
                    product, or
                                                             t      h     e
                    material was
                                                             environme n t
                    to be used to
                                                             o f          a

                                             3
                     hazardous or                substance,” the offense level was increased
                     t o x i c                   by an additional two levels pursuant to
                     substance; or               U.S.S.G. § 2D1.12(b)(2).
                     ( B )    the
                                                         At the sentencing hearing,
                     unlawful
                                                 Landmesser objected to the two-level
                     transportation
                                                 increase pursuant to § 2D1.12(b)(2),
                     , treatment,
                                                 maintaining that, although there may have
                     storage, o r
                                                 been a release, it was not an “unlawful”
                     disposal of a
                                                 one as defined by Application Note 3 to
                     hazardous
                                                 U.S.S.G. § 2D1.12. Application Note 3
                     w a s t e ,
                                                 states, in relevant part:
                     increase by 2
                     levels.                            Subsection (b)(2) applies if
                                                        the conduct for which the
U.S.S.G. § 2D1.12.
                                                        defendant is accountable
           Because Landmesser “knew” that               under § 1B1.3 (Relevant
the anhydrous ammonia “was to be used to                Conduct) involved any
manufacture a controlled substance,” the                discharge, emission, release,
District Court set a base offense level of              transportation, treatment,
12 pursuant to U.S.S.G. § 2D1.12(a)(1);                 s t o r ag e , o r d is p o s a l
additionally, because Landmesser “knew”                 violation covered by the
that the anhydrous ammonia “was to be                   Resource Conservation and
used to manufacture methamphetamine,”                   Recovery Act, 42 U.S.C. §
the offense level was increased by two                  6928(d), the Federal Water
l e v e l s p ur sua nt to U .S .S .G . §               Pollution Control Act, 33
2D1.12(b)(1). 5       Finally, because the              U.S.C. § 1319(c), or the
District Court concluded that the offense               C o m p r e h e n s i v e
involved an “u nlaw ful discharge,                      Environmental Response,
emission, or release” of a “hazardous                   Compensation, and Liability
                                                        Act, 42 U.S.C. §§ 5124,
                                                        9603(b).6
   5
       During Landmesser’s change of             Landmesser argued at the sentencing
plea proceeding, the court specifically
asked Landmesser if, when he was
                                                    6
attempting to steal the anhydrous                       The reference in Application Note
ammonia, he “knew perfectly well that it         3 to 42 U.S.C. § 5124 appears to be a
was intended to be used for making               typographical error. Section 5124 of
methamphetamine.” Joint App. at 31, ll.          Title 42 does not exist. The Sentencing
10-13. Landmesser answered this                  Commission likely intended to reference
question in the affirmative. Id. at l. 14.       49 U.S.C. § 5124.

                                             4
hearing that, pursuant to Application Note       Hospital in Towanda.
3, the two-level enhancement could only
                                                            It can hardly be
apply if the government had proved by a
                                                 argued that that release was
preponderance of the evidence that there
                                                 lawful. In other words, that
was a “discharge, emission, or release”
                                                 Mr. Landmesser had any,
violating the Resource Conservation and
                                                 you know, authority to be
Recovery Act (“RCRA”), the Federal
                                                 r e le a s i n g it.   As I
Water Pollution Control Act (“FWPCA”)
                                                 understand, the defense
or the Comprehensive Environmental
                                                 counsel’s position for it to
Response, Compensation, and Liability
                                                 be considered unlawful
Act (“CERCLA”).
                                                 under that clause, it has to
      The District Court overruled               qualify under application
Landmesser’s objection to the proposed           note three as having been a
sentence enhancement, stating:                   violation covered by those
                                                 specific sections of the three
       [The Court]: Now, the pre-
                                                 statutes.
       sentence report contains in
       paragraphs seven through                             I don’t think that’s a
       ten, I guess, the offense                 reasonable interpretation of
       conduct as summarized by                  t h a t s e c t io n o f t h e
       Mr. Rocktashel. And there                 guidelines. First of all, the
       are about three instances                 language of application note
       referenced there where there              three is not exclusive, and I
       was a release of the vapor.               think to interpret it as
                                                 e x c l u s ive is not th e
              Paragraph ten refers
                                                 reason a b le, logical
       to the fact that on that
                                                 interpretation of clause two.
       particular instance the vapor
       released from the tanks                          Therefore,         the
       made Landmesser’s eyes                    objection is overruled. The
       and throat burn. Paragraph                Court believes that the
       13 refers to an entire area               conduct in this instance
       being covered in a vapor                  qualifies for           that
       cloud. Paragraph 14 refers                enhancement and that the
       to Landmesser being burned                release of that occurred, and
       when anhydrous ammonia                    it was unlawful for the
       was released from one of the              purposes          of   this
       tanks, and he received                    enhancement.
       medical treatment for the
                                                       And even though the
       chemical burn at Memorial
                                                 Court does not find – I’ll

                                             5
       certainly make that of                     Landmesser maintains that the District
       record; the Court does not                 Court’s interpretation of “unlawful” in
       find it was unlawful with                  U.S.S.G. § 2D1.1(b)(2) – namely that
       respect to any specific                    Landmesser was without “authority to be
       statutory provisions that are              releasing” the anhydrous ammonia –
       recited in the application                 renders Application Note 3 meaningless.
       note three. So that’s clear on             The gov ernm ent co ntend s that
       the record.                                Landmesser’s arguments fail because he
                                                  does not cite to any “authority holding that
       Ms. Byrd: Just so I’m clear,
                                                  [U.S.S.G. § 2D1.1(b)(2)] requires a
       Your Honor, you’re finding
                                                  violation of one of the specific
       it’s unlawful because there
                                                  environmental provisions set forth in the
       was a release during the
                                                  application note.”
       theft?
                                                         We find the government’s argument
       The Court: Yes.
                                                  unconvincing. Under the basic tenets of
App. 69-70 ll. 13-25.                             statutory construction, which apply to
                                                  sentencing guideline interpretation, United
       The District Court then applied §
                                                  States v. Milan, 304 F.3d 273, 293 (3d Cir.
2D1.12(b)(2)’s two-level enhancement to
                                                  2002), attention must be addressed to the
Landmesser’s sentence and sentenced him
                                                  entirety of a text, with a view to avoiding
to 24 months imprisonment.
                                                  interpretations that would render any
Discussion                                        phrase superfluous. United States v. Swan,
                                                  275 F.3d 272, 280 (3d Cir. 2002). And we
       Our review of the District Court’s
                                                  have specifically ruled that “[a]n
application of U.S.S.G. § 2D1.12(b)(2) is
                                                  application note must be given ‘controlling
plenary. United States v. Brennan, 326
                                                  weight unless it is plainly erroneous or
F.3d 176, 200 (3d Cir. 2003), cert. denied,
                                                  inconsistent with the regulation.’” United
540 U.S. 898 (2003).
                                                  States v. Sau Hung Yeung, 241 F.3d 321,
       Landmesser argues that the District        325 n.2 (3d Cir. 2001) quoting United
Court’s enhancement of his sentence by            States v. Miller, 224 F.3d 247, 253 n.8 (3d
two levels under U.S.S.G. § 2D1.1(b)(2)           Cir. 2000).
was inappropriate because, as the District
                                                          The Sentencing Commission, in
Court was at pains to make clear, the
                                                  prefacing the phrase “discharge, emission,
conduct for which Landmesser was
                                                  or release” with the modifier “unlawful” in
accountable was not found by the District
                                                  § 2D1.12(b)(2), manifestly intended the
Court to be a “discharge, emission, or
release” constituting a “violation covered
by” any of the three environmental statutes
referred to in Application Note 3.


                                              6
adjective to have meaning.6 That meaning
is found in the text of Application Note 3.
Under the language of Application Note 3,
                                                  Offenses). The base offense level varies
§ 2D1.12(b)(2)’s enhancement applies if
                                                  dramatically, depending on the type and
the release of anhydrous ammonia that
                                                  quantity of the drugs, on whether use of
occurred during the theft was a “violation
                                                  the drugs has resulted in serious injury or
covered by” one of the three enumerated
                                                  death, and on whether the defendant has
statutes – RCRA, FWPCA or CERCLA.7
                                                  a prior conviction for a similar offense.
                                                  Among the specific offense
   6
        Compare U.S.S.G. § 2Q1.2, which           characteristics is § 2D1.1(b)(5), which
addresses Mishandling of Hazardous or             provides for a 2-level increase in offense
Toxic Substances. The base offense                level for “an unlawful discharge,
level is 8. “If the offense resulted in an        emission, or release into the environment
ongoing, continuous, or repetitive                of a hazardous or toxic substance.” The
discharge, release, or emission of a              initial wording of Application Note 19
hazardous or toxic substance or pesticide         (former Application Note 20) is verbatim
into the environment,” an increase of 6           the initial wording of Application Note 3
levels is called for. § 2Q1.2(b)(1)(A).           of § 2D1.12(b)(2).
Where the offense “otherwise involved a                   The Robison court concluded that
discharge, release, or emission of a              nothing in the wording of U.S.S.G. §
hazardous or toxic substance or                   2D1.1(b)(5) or the application note
pesticide,” the required increase is 4            suggests “that the enhancement can apply
levels. § 2Q1.2(b)(1)(B). With respect            only if a defendant is also convicted for
to the application of this guideline,             violating one of the environmental
whether the “discharge, release, or               statutes listed in the Application Note.”
emission” is “unlawful” is not a stated           (emphasis in original). Id. at 497. In the
factor.                                           instant matter, the government’s reliance
                                                  on Robison is misplaced. Landmesser
   7
        The government invokes United             does not argue that, pursuant to
States v. Robison, 19 Fed. Appx. 490              Application Note 3, section
(9th Cir. 2001), an unpublished, non-             2D1.12(b)(2)’s enhancement would only
precedential Ninth Circuit opinion, in            apply if he had been convicted of a
which that court addressed U.S.S.G. §             violation under one of the three
2D1.1(b)(5) and its Application Note 20,          enumerated statutes. Landmesser argues
which has subsequently been renumbered            that, to support the two-level
Application Note 19. U.S.S.G. § 2D1.1             enhancement, the sentencing court must
is the general drug guideline governing           make a finding of a violation of one of
Unlawful Manufacturing, Importing,                the three statutes, and that in the case at
Exporting, or Trafficking (Including              bar the District Court specifically noted
Possession with Intent to Commit These            that it had not found that the release

                                              7
The District Court expressly stated that it                      A c c o r d in gl y, Land messer’s
did not find that the release of the                       sentence will be vacated and this matter
anhydrous ammonia was “unlawful with                       will be remanded for resentencing in
respect to any specific statutory provisions               accordance with this opinion.
that are recited in the application note
three.” The District Court concluded that
the release of the anhydrous ammonia was
“unlawful” because Landmesser, having
stolen the anhydrous ammonia, had no
“authority to be releasing it.” Under the
District Court’s rationale, § 2D1.12(b)(2)
would appear to apply in every instance in
which a “discharge, emission, or release”
occurs in the course of a theft – an
i n t e rp r e t a tion that w ould re nder
A p p l i c a ti o n N o t e 3 e s s e n t i a l l y
                                                           further argument captioned as follows:
meaningless.8
                                                           “Even if the District Court Construed §
                                                           2D1.12(b)(2) Too Broadly, Landmesser’s
constituted such a violation.                              Conduct Was ‘Covered By’ the
                                                           Environmental Provisions Specified in
   8
        We find no support for the                         the Application Notes.” In support of
proposition that the language of                           this argument the government cites two
Application Note 3 is not exclusive.                       statutes – 42 U.S.C. § 9603(b) and 49
Nothing in the Note suggests that §                        U.S.C. § 5104(b) – and contends that
2D1.12(b)(2) is meant to apply to                          Landmesser’s conduct was “covered by”
conduct covered by environmental                           each of these statutes. As to the second
provisions other than the three that are                   of these statutes the government says that
specifically enumerated. Cf. Collinsgru                    what Landmesser did was “‘covered’ by
v. Palmyra Bd. of Educ., 161 F.3d 225,                     [the statutory provision], if not
232 (3d Cir. 1998) (“The canon of                          constituting an actual violation of that
expressio unius est exclusio alterius                      provision.” However (as noted above),
means that explicit mention of one thing                   Application Note 3 only addresses
in a statute implies a congressional intent                conduct constituting a “violation covered
to exclude similar things that were not                    by” (emphasis added) a listed statute.
specifically mentioned.”). For the                         And the District Court (as also noted
application of expressio unius est                         above) expressly “[did] not find [that
exclusio alterius to interpretation of the                 Landmesser’s conduct] was unlawful
guidelines, see United States v. Milan,                    with respect to any specific statutory
supra, 304 F.3d at 293.                                    provisions that are recited in the
        The government’s brief presents a                  application note three.”

                                                       8
