                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            October 13, 2005
                                   TENTH CIRCUIT
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellant,

 v.                                                 Nos. 01-3344 & 01-3310
                                                           (D. Kansas)
 EDWARD A. SHAW,                                (D.Ct. No. 99-CR-10081-01-JMT)

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and O’BRIEN, Circuit Judges.



      Edward Shaw was convicted by a jury of knowingly engaging in a scheme

to falsify, conceal or cover up the presence of asbestos at the Shallow Water

Refinery, in violation of 18 U.S.C. § 1001(a)(1). 1 He was sentenced to four

      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

      1
          18 U.S.C. § 1001(a)(1) provides:

      (a) Except as otherwise provided in this section, whoever, in any matter within the
      jurisdiction of the executive, legislative, or judicial branch of the Government of
      the United States, knowingly and willfully--
months imprisonment, which was stayed pending this appeal. On appeal, Shaw

challenges his conviction and sentence on the following grounds: (1) the district

court lacked subject matter jurisdiction over his prosecution under 18 U.S.C. §

1001 because 42 U.S.C. § 7413(c) is the exclusive means by which the

Government may prosecute the making of a false statement on a form required by

the Clean Air Act (CAA), (2) his prosecution under 18 U.S.C. § 1001 was barred

by the five year statute of limitations, (3) the Government failed to show he had a

legal duty to disclose the presence of asbestos at the refinery, and (4) the district

court erred in holding Shaw accountable under USSG §2F1.1 for the cost of the

clean up of the buried asbestos at the refinery. The Government cross-appeals,

arguing the district court erred in denying a two level enhancement to Shaw’s

sentence for more than minimal planning under USSG §2F1.1(b)(2). After

briefing was completed in this matter, the United States Supreme Court decided

Blakely v. Washington, 542 U.S. 296 (2004). Shaw requested permission to file

supplemental briefing addressing Blakely, which was granted. In his

supplemental brief, Shaw argues Blakely applies to the federal sentencing

guidelines and he was sentenced in violation of the Sixth Amendment. Exercising




      (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact .
      ..

      shall be fined under this title [and] imprisoned not more than 5 years . . . .

                                            -2-
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm Shaw’s

conviction but remand for resentencing.

      Because of the complexity of this appeal, we divide our discussion in two--

first addressing Shaw’s appeal of his conviction and then addressing all

sentencing issues.

                                   I. Conviction

      A. Factual Background

      Shaw, a professional engineer, owns and operates ESCM & Associates Inc.

(ESCM), an engineering and environmental consulting firm. In 1993, EZ Serve,

one of ESCM’s clients, contacted Shaw concerning the Shallow Water Refinery,

an abandoned oil refinery located near Scott City, Kansas, which EZ Serve

owned. 2 EZ Serve wished to demolish the refinery and requested Shaw’s

assistance. Shaw decided to obtain bids for the demolition. On July 15, 1993, as

part of the bidding process, Shaw escorted several metal salvage companies

through the refinery. One of those companies was Southwest Wrecking, a small

company owned by Jean Stiffler and operated by Carl and Jean Stiffler and three

of their children, Lee, Scott and Carla (the Stifflers). Also present at the walk-

through were Steve Allred and Barry Yaffe, representatives of the Yaffe



      2
       The Shallow Water Refinery was abandoned in the early 1980’s. It consists of
approximately eighty acres.

                                          -3-
Companies, another potential bidder.

      At trial, Allred and Yaffe testified that during the walk-through, they

observed materials throughout the refinery which they believed contained

asbestos. They raised these observations with Shaw. According to Yaffe and

Allred, Shaw informed them the property was clean and the materials they

observed contained calcium silicate (cellulose) not asbestos. 3 Lee Stiffler

testified Shaw informed his family at the walk-through that the property did not

contain asbestos, that the insulation throughout the refinery contained cellulose

and that the only concern was the presence of hydrocarbons, which Shaw

indicated he would help abate. Carl Stiffler testified he did not recall Shaw

making any representations concerning asbestos during the walk-through; he

stated Shaw informed the Stifflers the insulation material was cellulose.

      A week after the walk-through, EZ Serve requested that ESCM purchase

the Shallow Water Refinery. Immediately thereafter, the Stifflers contacted

Shaw, informing him they wished to purchase the refinery for $50,000.

Therefore, Shaw/ESCM decided to purchase the property from EZ Serve and



      3
         Disagreeing with Shaw’s representations concerning the presence of asbestos,
Yaffe and Allred offered EZ Serve a negative bid of $225,000-$250,000 to demolish the
refinery. They believed they could sell the scrap metal on the property for $500,000.
However, they calculated it would require $225,000-$250,000 to demolish the refinery
and $225,000-$250,000 to remove the asbestos and hydrocarbons. Thus, in order to
realize a profit, Yaffe and Allred’s bid required EZ Serve to pay for abatement.

                                         -4-
immediately reconvey it to the Stifflers. ESCM purchased the property from EZ

Serve for $5,000. On August 23, 1993, ESCM sold it to the Stifflers for $50,000.

Pursuant to the terms of the sales agreement, the Stifflers agreed to pay $20,000

at closing 4 and remit the balance (without interest) on or before August 31, 1994. 5

The agreement also informed the Stifflers that (1) the property may contain

asbestos, gasoline hydrocarbons, and other contaminants, (2) the property was

being sold “‘AS IS,’” and (3) the Stifflers assumed “all responsibility for

complying with and/or bringing the [property] into compliance with any

environmental law or regulation.” (R. Supp. Vol. I at 36.) Jean Stiffler testified

she had “complete[] trust” in Shaw and that neither she nor any of her family

members read the sales agreement before signing it. 6 (R. Vol. IV at 410.)

Therefore, she stated she never knew the agreement indicated asbestos may be on

the property and Shaw never told her or her family that asbestos may be present.

       In addition to the sales agreement, Shaw wrote a letter addressed to Carla

Stiffler outlining the terms of a separate agreement between ESCM and the

Stifflers. This letter, dated August 23, 1993, stated in relevant part:

       4
         The Stifflers obtained the $20,000 down payment with a bank loan. Shaw
assisted them in securing the loan by writing a letter to the bank estimating the value of
the scrap metal on the property at $725,000.
       5
           The Stifflers have only paid Shaw $1,000 of the $30,000 balance.

       Jean Stiffler testified she only has an eighth grade education and usually needs
       6

someone to explain to her what she reads.

                                             -5-
      This letter also serves as an agreement by ESCM to conduct up to six site
      visits to the property during the next 24 months, as deemed necessary by
      [the Stifflers], to provide engineering consulting. These site visits will be
      for a maximum eight hour duration each and all travel will be paid for by
      ESCM. Phone consultation for engineering matters will be provided during
      the 24 months following closing in regards to engineering concerns with
      the demolition of the refinery; these consultations will be at no cost to [the
      Stifflers].

(R. Supp. Vol. I at 38.) In conclusion, the letter stated, “We look forward to

working with you on this project.” (Id.) Jean Stiffler testified she never saw this

letter. She believed, based on conversations with Shaw, that he would be the

Stifflers’ consultant regarding the removal of insulation (which she believed,

based on Shaw’s representations, contained cellulose) and he would complete all

necessary paperwork for them. Carl Stiffler testified Shaw told his family he

would be their “environmental consultant.” (R. Vol. IV at 562.)

      After closing, the Stifflers began demolishing the refinery and salvaging

the scrap metal for sale. On November 3, 1993, David Branscum from the Kansas

Department of Health and Environment (KDHE) arrived at the refinery to inspect

it. He was approached by Jean Stiffler who refused to allow him on the property,

stating she would have to contact Shaw, “their environmental guy,” to see if she

could let him on the property. (Id. at 585.) Branscum left the refinery and

returned to Scott City, where he learned no Notification of Demolition and




                                         -6-
Renovation had been filed for the refinery. 7

       Branscum returned to the refinery the next day. This time, Branscum was

met by Lee Stiffler. Branscum requested access to the refinery to photograph and

take samples of suspected asbestos materials. 8 Lee informed Branscum they

needed to contact Shaw before permitting him on the property. 9 Eventually, Shaw

was contacted by telephone; Shaw informed Branscum he could enter the property

escorted by Lee Stiffler. Accompanied by Lee, Branscum inspected the property

and took pictures. After his inspection, Branscum informed Lee there were some

compliance issues, including licensing requirements, which needed to be

addressed, and it would be in the Stifflers’ best interests to cease their demolition

activities.

       The next day (November 5), pursuant to the Stifflers’ request, Shaw arrived



       7
         Federal regulations require an owner or operator of a demolition or renovation
activity involving the presence of asbestos to provide the Environmental Protection
Agency with written notice of the intent to demolish or renovate and to update this notice
if the amount of asbestos changes by at least twenty percent. 40 C.F.R. § 61.145(a),
(b)(1),(2). This notice must be filed with the EPA at least ten days before asbestos
stripping and removal begins or demolition work commences, depending on the specific
circumstances of each project. 40 C.F.R. § 61.145 (b)(3)(I). This notice is referred to
throughout this opinion as a “Notification of Demolition and Renovation.”
       8
        Branscum testified experience had taught him that refineries often had asbestos-
containing insulating material.
       9
        Both Lee and Jean Stiffler testified they denied Branscum access to the refinery
because Shaw had told them not to let any government inspectors on the property without
contacting him first.

                                            -7-
at the refinery. The Stifflers informed Shaw they needed an asbestos inspection

performed and a Notification of Demolition and Renovation submitted to the

Government. They further informed him they could not continue their demolition

of the refinery until the notification was submitted. They asked Shaw to fill out

and submit the notification for them. Based on recent training he had received in

the supervision of asbestos abatement, 10 Shaw agreed to inspect the property and

complete and submit the notification. He did not require the Stifflers to pay him

for these services. While Shaw completed the necessary paperwork, Shaw

arranged for the Stifflers to work on a demolition project in Texas. 11

      On November 8, 1993, Shaw telephoned Alice Law, NESHAP 12 asbestos

coordinator at the Environmental Protection Agency (EPA), seeking general

information concerning the EPA’s regulations. He informed her of his

qualifications and told her there was no asbestos in Area A of the Shallow Water

      10
        Shaw obtained accreditation as a supervisor of asbestos abatement projects from
the Georgia Institute of Technology on October 15, 1993.
      11
         Lee Stiffler testified that the Texas project involved the removal of asbestos,
which Shaw supervised. He stated Shaw required the asbestos to be wetted prior to its
removal, bagged and hauled to a landfill. He also testified Shaw required the workers to
be suited properly when handling asbestos. Lee admitted he believed the regulation of
asbestos was “overrated.” (R. Vol. III at 364.)
      12
          NESHAP stands for National Emissions Standards for Hazardous Air Pollutants.
These standards were established by the Environmental Protection Agency pursuant to the
CAA and specifically regulate any activity which may result in the emission of asbestos
into the atmosphere, including the disposal of asbestos. See 42 U.S.C. § 7412 (b), (d)(1);
40 C.F.R. §§ 61.140 et seq.

                                           -8-
Refinery, only bear metal tanks and piping. 13 The next day, Law received a

Notification of Demolition and Renovation concerning the Shallow Water

Refinery. The notification, dated November 8, 1993, indicated there was no

asbestos in Area A of the refinery. Specifically, it stated: “Area ‘A’ consist[s] of

bare metal carbon steel tanks. No insulation or other material to test. Cut only

bare metal carbon steel piping.” (R. Vol. I at 106.) It also stated: “If unexpected

asbestos or suspected asbestos material is encountered, all work will stop and area

secured until properly abated.” (Id. at 107.) The notification also indicated

demolition of Area A would begin on November 18, 1993, and end on December

31, 1994. The space designated “Signature of Owner/Operator” was signed by

“Edward A. Shaw, Agent for S.W. Wrecking.” (Id.)

       Accompanying the notification was a certificate of Shaw’s accreditation as

a supervisor of asbestos abatement projects, a map of the refinery and a cover

letter. The cover letter, written by Shaw and dated November 8, 1993, stated in

relevant part:

       On November 3, 1993, [the Stifflers] were advised by . . . David
       Branscum[] that they had not filed the proper notification with your office
       in regards to the demolition. They immediately halted the demolition effort
       and commissioned me to conduct the proper inspection and file the proper


       13
          The refinery was divided into three areas -- A, B and C. Area A was referred to
as the “light product storage area” where the oil was once stored prior to processing. (R.
Vol. VI at 886.) Area B was the hot storage area and Area C was the main process area,
containing heaters and distillate columns.

                                            -9-
      notifications.

      As we discussed, I have inspected the facility. . . . Area A consist[s] of
      only bare steel tanks and bare steel piping. There is no asbestos material in
      the area to be removed. There may be asbestos containing materials in
      areas B and C.

      The attached notice is for demolition of Area A only. No work will be
      conducted in Areas B or C at this time. I will be conducting an extensive
      survey in Areas B and C, collecting samples of materials that may contain
      asbestos, and forwarding them to a laboratory for analysis. After receipt of
      the laboratory report, I will provide a completed asbestos survey report and
      will submit notification of demolition activities and asbestos removal
      abatement activities for Areas B and C.

      As we discussed on the telephone, [Southwest] Wrecking is a small family
      owned business and [it has] a strong desire to comply with all applicable
      regulations. Our company will be working with [the Stifflers] very closely
      on the remainder of this project to assist them in their compliance efforts.

(R. Supp. Vol. I at 39.)

      Thereafter, Shaw informed the Stifflers they could return to work at the

Shallow Water Refinery. The Stifflers returned to the refinery based solely on

Shaw’s representation that they could do so as they never received written

notification from the KDHE that they could resume their work at the refinery.

Before their return to the refinery, Shaw never informed the Stifflers there was

asbestos on the property or that they should only cut bare steel tanks and piping.

He did, however, provide them with a map delineating Areas A, B and C. He also

told them to contact him before moving from Area A to another area.

      On December 9, 1993, Branscum returned to the refinery to verify the

information in the November 8, 1993 “Notification of Demolition and



                                        -10-
Renovation.” He was allowed to enter the refinery, again escorted by Lee Stiffler.

Branscum took several photographs and samples from Area A of the refinery.

Later, he submitted these samples for testing. Test results revealed the presence

of asbestos in Area A. 14 During this December 9, 1993 visit, Branscum did not

see any evidence that the asbestos was being wetted prior to its removal. 15

       On March 3, 1994, Shaw visited the Shallow Water Refinery to take

samples. At that time, the Stifflers were beginning to move their demolition

activities from Area A to Area B. At Shaw’s direction, Lee and Scott Stiffler

obtained forty-eight samples from all three areas of the refinery. Lee testified

that while he and Scott were assisting Shaw, they came across a hole they had dug

to bury insulation. 16 According to Lee, Shaw told them they could continue to

bury the insulation because it was not asbestos. 17 Carl Stiffler testified Shaw saw

the holes filled with insulation and Jean Stiffler testified Shaw told them they

could bury the insulation. Later, Shaw submitted the samples he had collected to

a laboratory in Gainesville, Florida, for testing. Samples from Areas B and C


       14
         Lee Stiffler testified that despite numerous calls to the KDHE, his family never
received notice of the results of Branscum’s sampling.
       15
         One asbestos-removing procedure involves wetting the asbestos-containing
material with a water solution, removing the asbestos, sealing it in plastic bags and
disposing of it in an approved landfill.
       16
         Lee testified insulation was buried in three different locations on the property.
He stated over 100 pounds of insulation was dumped in each location.
       17
           Lee also testified that on other visits to the refinery, Shaw observed other holes
where insulation material had been dumped. Lee stated Shaw did not “really say a whole
lot, just carry on.” (R. Vol. III at 352.)

                                            -11-
showed the presence of asbestos; none of the samples from Area A tested positive

for asbestos.

      Based on these results, Shaw completed and filed a revised Notification of

Demolition and Renovation with the EPA. This notification, which was mailed

on June 20, 1994, and received by the EPA on June 23, 1994, indicated there was

asbestos on the property and that it would be removed using the “wet method.”

(R. Vol. I at 110); see n.15, supra. This notification contained the signature of

“C.L. Stiffler” 18 and was dated April 22, 1994. (Id.)

      Accompanying the revised notification was a letter from Shaw dated June

17, 1994, stating asbestos was discovered on the property. It further stated:

      We have arranged, [on] behalf of [the Stifflers], to have BFI Waste
      Management haul the removed [asbestos] and place [it] in [its] landfill in
      Fountain, Colorado. [The Stifflers have] indicated that they are receiving
      the necessary training from Kansas for Asbestos Removal Operations and
      that they will have our personnel on site as Supervisors.

      We will be collecting air samples on a regular basis and submitting them
      for laboratory analysis. We will also conduct field fiber screening while
      the asbestos removal project is in progress.

(Id. at 108.) At trial, the parties stipulated that Shaw “never requested a contract

with BFI pertaining to the disposal of asbestos from the Shallow Water Refinery


      18
          It is unclear who signed “C.L. Stiffler” to the notification. According to Jean
Stiffler, who testified she was familiar with her husband’s signature, it was not Carl’s
signature. Shaw also denied forging Carl’s signature. According to Shaw, he left several
blank copies of the notification with Carla Stiffler and she informed him she would
ensure that one of them got signed. Apparently, the Stifflers returned two forms, one
bearing the signature “C.L. Stiffler” and one bearing the signature “Lee Stiffler.” Shaw
completed and submitted both forms but filed the form containing the “C.L. Stiffler”
signature with the EPA.

                                          -12-
on behalf of himself or as an agent of Carl and Jean Stiffler, doing business as

[Southwest] Wrecking, nor did he ever receive or view such a contract.” (R. Vol.

III at 257.) However, Shaw did contact BFI inquiring of the cost of removing the

asbestos from the refinery and disposing of it at BFI’s landfill. On May 20, 1994,

BFI responded by letter to Shaw’s inquiry, discussing the cost of its services.

      On September 15, 1994, Russell Brichacek, Branscum’s supervisor at the

KDHE, visited the refinery. He met with Lee and Carla Stiffler and informed

them that state law required them to have an asbestos contractor’s license to

perform demolition activities at a site involving asbestos. He then toured the

facility with Lee. He observed several violations of the work practice standards

for the removal of asbestos. In particular, he noticed insulation had been bagged

and stored in the bath house without having been properly wetted prior to its

removal. He was informed by Lee Stiffler that this insulation material came from

Area A. He also observed insulation debris on the ground throughout the

refinery. Brichacek took two samples from the bath house; later testing revealed

the presence of asbestos.

      On March 6, 1996, Kathryn Wright, a special agent in the Criminal

Investigation Division of the EPA, was asked to investigate the violations taking

place at the Shallow Water Refinery. Shaw was initially the target of her criminal

investigation. 19 In June 1996, Wright went to the refinery but the gate was locked

and she was unable to locate anyone on the property. Wright returned to the


      19
          Later, in April 1996, Southwest Wrecking and Carl and Jean Stiffler became
targets of Wright’s investigation.

                                          -13-
property in August. Again, the gate was locked and she was unable to locate

anyone to allow her access to the property. Therefore, Wright conducted a fly-

over of the property, observing that demolition activity was being performed at

the refinery. Meanwhile, Wright attempted to contact Shaw. In October 1996,

Shaw telephoned Wright and agreed to be interviewed. Wright testified that

during their conversation, Shaw told her he had instructed the Stifflers not to

allow inspectors on the facility because it “was a refinery and anybody looking

for any violation could find it.” (R. Vol. V at 701.)

       On November 14, 1996, Wright and her colleague William Absher

interviewed Shaw. During the interview, Wright and Absher informed Shaw they

wished to inspect the refinery. Shaw told them he would make arrangements for

the inspection. Shaw eventually informed Wright that the EPA could inspect the

refinery on December 16, 1996.

       On that day, Wright and several other individuals from the EPA arrived at

the refinery with a consent to search form. 20 Wright initially attempted to hand it

to Shaw but Shaw told her she must give it to Carl Stiffler because he owned the

property. Carl Stiffler signed the form and Wright and the other individuals were

allowed to enter and inspect the property. As a result of this inspection, the EPA

issued an emergency cease and desist order to the Stifflers, requiring them to




       20
          Jean Stiffler testified that before these individuals arrived at the refinery, Shaw
told her and her family that they needed to “stick together,” which she interpreted to mean
that they not allow themselves to be separated until they all had the same story to tell. (R.
Vol. IV at 423.)

                                            -14-
cease all demolition activity at the refinery. 21

       In May 1997, Brichacek returned to the property. He was met by Carl and

Jean Stiffler who accompanied him as he inspected the property. He observed

demolition activity had occurred since his last visit in September 1994; in

particular, he noticed the catalytic cracker unit (cat cracker), 22 which had been

standing during his last visit, was now laying on its side. He also noticed that

much of the insulation from the cat cracker had been knocked loose and was

scattered on the ground around it. According to Branscum, Carl Stiffler informed

him that the cat cracker had been dropped 23 a week earlier and that Shaw had told

Carl there was no asbestos on the cat cracker. 24 Brichacek took samples from the

insulation material on the cat cracker; later testing revealed the presence of

asbestos. Shortly after his visit, the KDHE issued an order citing the Stifflers

with various state law violations.

       On July 9, 1997, in response to the KDHE order, Jean Stiffler wrote the


       21
         During the EPA’s visit, the Stifflers were interviewed. The Stifflers stated they
had earned $150,000 from the sale of scrap metal from the refinery and estimated another
$35,000 worth of scrap metal remained on the property.
       22
          A catalytic cracker/cat cracker is “[a]n oil refinery unit in which the cracking of
petroleum takes place in the presence of a catalyst.” THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE (4th ed. 2000). The “cracking” of petroleum is
the thermal decomposition of petroleum molecules into shorter molecules to extract low-
boiling fractions such as gasoline. Id.
       23
          When removing asbestos from a height, the proper procedure is to lower it, not
drop it, in order to minimize the potential for airborne release of asbestos.
       24
         Jean Stiffler testified they contacted Shaw for permission prior to dropping the
cat cracker.

                                            -15-
KDHE a letter requesting a hearing. In this letter, she stated, “[t]he samples we

had from the catcracker were negative.” (R. Vol. IV at 427 (quotations omitted).)

Jean testified she made this statement based on a package she received from

Washington, D.C., which stated the samples from the cat cracker were negative.

She testified Shaw took those samples.

      After the EPA issued the cease and desist order in December 1996, Wright

visited the refinery in June 1997 to verify whether the order was being complied

with by the Stifflers. Because no one was there to allow her access, Wright again

conducted a fly-over. She observed that the Stifflers’ heavy equipment was gone.

Wright also visited the refinery in July, August and October 1997. Again, no

activity was occurring.

      On August 1, 1997, an informal meeting was held between several KDHE

representatives and Carl and Jean Stiffler concerning the violations occurring at

the refinery and what the Stifflers could do to come into compliance with state

law. Shaw was present and did most of the talking on behalf of the Stifflers. On

October 31, 1997, the Stifflers received their asbestos control license. In 1998,

the Stifflers hired Dennis Shelton, an accredited asbestos project designer, to

prepare an asbestos abatement plan for the refinery, which was filed with the

KDHE. In June 1998, Brichacek visited the property for the third time. Although

abatement activities had occurred, Brichacek observed that many of the same

illegal conditions were still present.

      B. Procedural Background

      On June 15, 1999, Shaw and Carl and Jean Stiffler were charged by


                                         -16-
indictment with (1) conspiracy to violate the NESHAP pertaining to asbestos in

violation of 18 U.S.C. § 371 (Count I) and (2) violation of the NESHAP

pertaining to asbestos in violation of 42 U.S.C. § 7413 and 18 U.S.C. § 2 (Count

II). Shaw was additionally charged with engaging in a scheme to falsify, conceal

or cover up the presence of asbestos in violation of 18 U.S.C. § 1001(a)(1) (Count

III) and making a false statement in violation of 18 U.S.C. § 1001(a)(2) (Count

IV). On November 17, 1999, a superseding indictment was issued against Shaw

and Carl and Jean Stiffler. The superseding indictment charged Shaw with (1)

violating the NESHAP pertaining to asbestos in violation of 42 U.S.C. §

7413(c)(1) and 18 U.S.C. § 2 (Count I); (2) engaging in a scheme to falsify,

conceal, or cover up the presence of asbestos in violation of 18 U.S.C. §

1001(a)(1) (Count II); (3) making a false statement in violation of 18 U.S.C. §

1001(a)(2) (Count III); and (4) illegally disposing of asbestos in violation of the

Comprehensive Environmental Response, Compensation and Liability Act

(CERCLA), 42 U.S.C. § 9603, and 18 U.S.C. § 2 (Count IV). The superseding

indictment charged Carl and Jean Stiffler with removing asbestos without

accreditation in violation of 15 U.S.C. § 2646(a)(3) (Count V).

      On March 24, 2000, the Government filed a superseding information

against Carl and Jean Stiffler, charging them with failure to notify the EPA about

the storage and disposal of asbestos at the Shallow Water Refinery, a

misdemeanor. The Stifflers entered into a plea agreement with the Government

whereby they agreed to plead guilty to the superseding information. In exchange

for their guilty pleas and their cooperation in the Government’s prosecution of


                                         -17-
Shaw, including providing truthful testimony at his trial, the Government agreed

to recommend a two point downward adjustment to their sentences for acceptance

of responsibility and to file a motion for downward departure. It was not until

they received this bargain that the Stifflers admitted they had buried asbestos on

the property. On March 27, 2000, Carl and Jean Stiffler pled guilty; they were

eventually sentenced to one year unsupervised probation.

      On March 28, 2000, Shaw proceeded to trial. At trail, he testified that

during the walk-through on July 15, 1993, he informed the Stifflers there was a

possibility the property contained asbestos. He denied ever representing that the

refinery was a clean plant. With regards to the separate agreement between

ESCM and the Stifflers (outlined in Shaw’s August 23, 1993 letter to Carla

Stiffler), Shaw testified the agreement pertained to ESCM assisting the Stifflers

in the designing of riggings and the testing of any liquids discovered in the tanks

on the refinery. He stated he never agreed to be their environmental consultant

and indeed, at the time of the August 1993 agreement, he did not have any

training in asbestos abatement. He further testified he told Lee Stiffler to escort

Branscum through the refinery to allow Branscum to relate any concerns directly

to Lee and for Branscum’s safety. Shaw also testified that on March 3, 1994, he

did not attempt to collect clean samples from Area A and took samples from

materials containing insulation. Shaw conceded he could have made mistakes in

sampling Area A but stated he never deliberately misled anyone concerning what

he believed was on the property. Lastly, Shaw testified he never instructed any of

the Stifflers to bury insulation.


                                         -18-
      On April 12, 2000, the jury returned its verdict, finding Shaw guilty on

Count II but not guilty on Counts I and IV. No verdict was returned on Count III

because it was charged and presented to the jury in the alternative to Count II.

During trial and after the jury’s verdict, Shaw moved for a judgment of acquittal,

arguing (1) insufficient evidence demonstrating a scheme to conceal, (2) the

statute of limitations barred the prosecution of Count II, and (3) he had no duty to

report the presence of asbestos. The court rejected these arguments and denied

his motion. Shaw also filed a motion to set aside the verdict, arguing the district

court lacked subject matter jurisdiction over his prosecution under 18 U.S.C. §

1001. The court also denied this motion.

      C. Discussion

      Shaw attacks his conviction on three grounds: (1) the district court lacked

subject matter jurisdiction over his prosecution under 18 U.S.C. § 1001 because

42 U.S.C. § 7413(c) is the exclusive means by which the Government may

prosecute the making of a false statement on a form required to be filed under the

CAA, (2) his prosecution under 18 U.S.C. § 1001 was barred by the five year

statute of limitations, and (3) the Government failed to present sufficient evidence

demonstrating he had a legal duty to disclose the presence of asbestos at the

refinery.

      Shaw raised the latter two arguments to the district court in a motion for

judgment of acquittal. “[We] review[] a denial of a motion for judgment of

acquittal de novo, viewing the evidence in the light most favorable to the

government in determining if there is substantial evidence from which a jury


                                         -19-
could find the defendant guilty beyond a reasonable doubt.” United States v.

Austin, 231 F.3d 1278, 1283 (10th Cir. 2000). We review jurisdictional issues

and a district court’s interpretation of the statute of limitations de novo. United

States v. Anderson, 319 F.3d 1218, 1219 (10th Cir. 2003) (statute of limitations);

United States v. Cuch, 79 F.3d 987, 990 (10th Cir. 1996) (jurisdiction).

             1. Subject Matter Jurisdiction

      The CAA, 42 U.S.C. § 7401 et seq., contains a provision entitled “Federal

Enforcement.” See 42 U.S.C. § 7413. Within that provision is a subsection

entitled “Criminal penalties” which states in relevant part:

      (2) Any person who knowingly--

             (A) makes any false material statement, representation, or
             certification in, or omits material information from, or knowingly
             alters, conceals, or fails to file or maintain any notice, application,
             record, report, plan, or other document required pursuant to this
             chapter to be either filed or maintained (whether with respect to the
             requirements imposed by the Administrator or by a State);
      ...

      shall, upon conviction, be punished by a fine pursuant to Title 18, or by
      imprisonment for not more than 2 years, or both . . . .

42 U.S.C. § 7413(c)(2)(A).

      Shaw contends 42 U.S.C. § 7413(c)(2)(A) is the sole and exclusive means

by which the Government may prosecute the making a false statement to the EPA

in violation of the CAA. Thus, he argues the district court lacked subject matter

jurisdiction over his prosecution under 18 U.S.C. § 1001. Shaw also maintains

that because 42 U.S.C. § 7413(c)(2)(A) and 18 U.S.C. § 1001 proscribe the same

conduct, § 7413(c)(2)(A), the specific statute, trumps § 1001, the general statute,

                                         -20-
unless Congressional intent demonstrates the general statute is to control. He

asserts the language of § 7413(c)(2)(A) and the legislative history of the two

statutes indicate Congress intended § 7413(c)(2)(A) to trump § 1001. Lastly, to

the extent there is any ambiguity as to which statute controls, Shaw contends the

rule of lenity requires application of § 7413(c)(2)(A) because its penalty provision

maximizes punishment at two years as opposed to five years under § 1001.

      The Government maintains § 1001(a)(1) and § 7413(c)(2)(A) are two

separate statutes which criminalize different behavior—the former criminalizes a

scheme to conceal a material fact from the Government and the latter prohibits the

making of a false statement within a document required to be filed by the EPA. It

argues it was not required to choose one statute over the other and Shaw’s

conduct (knowingly and willfully submitting false and fraudulent representations

to the EPA over a lengthy period of time) was prohibited by § 1001(a)(1). The

Government further contends that because § 1001(a)(1) is not ambiguous, the rule

of lenity is inapplicable.

      Shaw’s jurisdictional argument is without merit. It is well settled that

“when an act violates more than one criminal statute, the Government may

prosecute[] under either so long as it does not discriminate against any class of

defendants.” United States v. Batchelder, 442 U.S. 114, 123-24 (1979) (“Whether

to prosecute and what charge to file or bring before a grand jury are decisions that

generally rest in the prosecutor’s discretion.”). This is true even when one statute

provides a harsher penalty. In Batchelder, the Supreme Court was confronted

with two statutes, 18 U.S.C. § 922(h) and 18 U.S.C. § 1202(a), which proscribed


                                        -21-
the same conduct but which carried different statutory maximums—five years and

two years, respectively. Id. at 116-17. The Government decided to prosecute the

defendant under § 922(h) and its attendant penalty provision, 18 U.S.C. § 924(a);

the defendant was sentenced to the five year statutory maximum term of

imprisonment. Id. On appeal, the Seventh Circuit concluded the defendant’s

sentence was limited to the two year statutory maximum applicable to violations

of § 1202(a). Id. The Supreme Court reversed. Id. at 118. It concluded nothing

in the legislative history of § 1202(a) (which was enacted after § 922(h) and §

924(a)) revealed Congress intended its penalty provision to override § 924(a). Id.

at 119-21. It also rejected the application of the rule of lenity, stating § 924(a)

unequivocally applies to convictions under § 922(h). Id. at 121-22. Lastly, the

Court found no constitutional infirmity with the Government’s choice to

prosecute the defendant under the statute carrying the harsher punishment. Id. at

124-25.

      We addressed a similar issue in United States v. Wiles, 102 F.3d 1043 (10th

Cir. 1996). There, the defendant was charged with making a false statement to

the Security and Exchange Commission (SEC) under 18 U.S.C. § 1001. Id. at

1066. On appeal, he alleged that Congress intended the Government to prosecute

the making of a false statement to the SEC under 15 U.S.C. § 78ff, a specific

provision in the Securities Exchange Act of 1934 which criminalizes the willful

making of a false or misleading statement to the SEC. Id. Thus, the defendant

argued that the making of a false statement to the SEC could not support a

conviction under § 1001. Id. We rejected this argument, holding: “Without any


                                          -22-
express indication that Congress intended otherwise, we . . . conclude that both §

78ff and § 1001 proscribe the making of false statements to the SEC, and the

government may prosecute such conduct under either statute.” Id. at 1067. See

also United States v. Radetsky, 535 F.2d 556, 567-68 (10th Cir. 1976) (rejecting

argument that the defendant should have been prosecuted under specific statute

criminalizing the making of false statements in connection with medicare claims

rather than § 1001 because there was no evidence of an intent to make the specific

statute a substitute for any part of § 1001).

       The same reasoning applies here. Despite Shaw’s attempt to persuade us

otherwise, we fail to discern from either the language of the CAA or its

legislative history any Congressional intent to foreclose prosecutions under §

1001 where § 7413(c)(2)(A) may also apply. Without such intent, we defer to the

Government’s prosecutorial discretion. 25 Moreover, the Government alleged

Shaw engaged in a scheme to conceal the presence of asbestos. Section

7413(c)(2)(A) of the CAA does not proscribe such conduct. Consequently,

charging Shaw under § 1001(a)(1), which does prohibit such conduct (see n.1,

supra), was proper.

              2. Statute of Limitations

       A five year statute of limitations applies to prosecutions under 18 U.S.C. §

1001. See 18 U.S.C. § 3282 (providing a five year statute of limitations for


       25
          Because we find no ambiguity in either statute, the rule of lenity does not apply.
Callanan v. United States, 364 U.S. 587, 596 (1961) (holding that the rule of lenity, “as is
true of any guide to statutory construction, only serves as an aid for resolving an
ambiguity; it is not to be used to beget one”).

                                            -23-
noncapital offenses). Shaw contends the statute of limitations began to run in

November 1993, when he submitted the original Notification of Demolition and

Renovation denying the presence of asbestos in Area A of the Shallow Water

Refinery. Because the original indictment was not filed until June 15, 1999, he

argues his prosecution under 18 U.S.C. § 1001 was time-barred. He further

maintains that the Government cannot rely on the June 17, 1994 Notification of

Demolition and Renovation and accompanying letter because neither of these

documents contained false information. He alleges that at the time he made the

representations within those documents, he had been negotiating with the Stifflers

to supervise the asbestos abatement project and had made the preliminary

arrangements for BFI to remove and dispose of the asbestos at the refinery. He

also states the evidence at trial did not show he signed Carl Stiffler’s name to the

notification. Indeed, he states his undisputed testimony demonstrated he provided

the Stifflers with a blank notification form and they submitted it to him with Carl

Stiffler’s signature. Moreover, he argues the Government cannot rely on the letter

Jean Stiffler wrote to the KDHE in 1997 because she never testified that Shaw

told her the cat cracker did not contain asbestos. More importantly, he contends

there is nothing in the record demonstrating that Jean’s conduct in 1997 should be

imputed to him. Lastly, Shaw maintains that the superseding indictment charged

him with concealing the presence of asbestos. Because the alleged false

statements occurring in 1994 or 1997 concerned the removal of asbestos, not its

presence, Shaw asserts the Government cannot rely on these statements as

conduct occurring within the five years preceding the original indictment.


                                         -24-
      The Government argues Shaw’s prosecution under § 1001 was not time-

barred. It asserts Shaw’s ongoing scheme to defraud continued until at least June

20, 1994, but also into 1997. It points to the June 17, 1994 correspondence to the

EPA (which Shaw mailed on June 20, 1994) and the enclosed Notification of

Demolition and Renovation which contained the forged signature of “C.L.

Stiffler.” It contends these documents falsely stated that the Stifflers would have

ESCM personnel on site as supervisors and that arrangements had been made with

BFI to remove and dispose of any asbestos. The Government also points to

Shaw’s representation to Jean Stiffler in 1997 that the cat cracker had been tested

for asbestos and no asbestos had been found. Relying on this representation, Jean

wrote the KDHE stating the Stifflers had been informed the cat cracker did not

contain asbestos and it could be demolished.

      We reject Shaw’s statute of limitations argument. In criminal cases, the

statute of limitations normally begins to run when the crime is complete. United

States v. Reitmeyer, 356 F.3d 1313, 1317 (10th Cir. 2004). “A crime is complete

[when] every element in the crime occurs.” Id. (quotations omitted). Here, the

superseding indictment charged Shaw with a scheme to conceal the presence of

asbestos from 1993 to 1997. 26 Therefore, the crime was not completed and the

      26
           Count II of the superseding indictment stated the following in relevant part:

      Commencing in November of 1993 . . . and continuing through September of 1997
      ...
                                   EDWARD A. SHAW
      within the District of Kansas, did knowingly and willfully, in a matter within the
      jurisdiction of the [EPA], [] falsify, conceal or cover[] up, by a scheme, material
      facts, to wit the presence of asbestos at various locations within the Shallow Water

                                             -25-
statute of limitations did not begin to run until this scheme was completed in

1997. United States v. Jensen, 608 F.2d 1349, 1355 (10th Cir. 1979) (“[T]he

statute of limitations is no bar if there is an ongoing scheme continuing into the

[statute of limitations] period.”). 27 Because the scheme continued into the five

years preceding the filing of the original indictment (June 15, 1999), the

indictment was timely. We also reject Shaw’s argument that his conduct in 1994

and 1997 cannot be included in the scheme to conceal the presence of asbestos



       Refinery site . . . .

(R. Vol. I at 40.) Thereafter, Count II alleged Shaw’s scheme to falsify, conceal and
cover up the presence of asbestos at the Shallow Water Refinery included but was not
limited to the following acts: (1) Shaw advising the Stifflers to deny Branscum access to
the facility, (2) Shaw’s November 8, 1993 letter informing the EPA he had inspected the
refinery, that Area A only consisted of bare steel tanks and piping and Area A did not
contain asbestos, (3) Shaw’s submission of the November 8, 1993 Notification of
Demolition and Renovation indicating there was no asbestos-containing material in Area
A of the refinery, (4) Shaw’s June 17, 1994 letter informing the EPA that ESCM had
arranged for BFI to haul and dispose of the asbestos from the refinery, (5) Shaw’s filing
of the revised Notification of Demolition and Renovation bearing the purported signature
of “C.L. Stiffler” and containing false and misleading representations, (6) Shaw’s
statement at the August 1, 1997 meeting between the KDHE and the Stifflers indicating
the Stifflers had contacted several environmental firms to address the problems at the
Shallow Water Refinery, and (7) Shaw’s August 15, 1997 letter to the EPA and KDHE
advising of the steps the Stifflers were taking to comply with the environmental laws and
regulations.
       27
          This is not to be confused with the continuing offense doctrine. In United States
v. Dunne, 324 F.3d 1158, 1166 (10th Cir. 2003), we held § 1001 is not a continuing
offense crime for statute of limitations purposes. However, the fact that § 1001 is not a
continuing offense crime is not dispositive of the statute of limitations issue because the
Government charged Shaw under § 1001’s scheme provision. Id. at 1164 (stating a
continuing offense “is not the same as a scheme or pattern of illegal conduct”) (quotations
omitted).

                                           -26-
because it involved the removal/disposal of asbestos, not its presence. Shaw

reads the term “presence of asbestos” in the superseding indictment too narrowly.

It is clear the Government did not seek to limit his scheme only to the

concealment of the physical presence of asbestos but also the concealment of its

improper removal and disposal. Indeed, in the superseding indictment, the

Government alleged Shaw’s scheme to conceal included his preparation and

submission of the June 1994 Notification of Demolition and Renovation and

accompanying cover letter to the EPA. The documents indicated the asbestos

discovered at the refinery would be wetted, bagged and removed by BFI to its

landfill in Fountain, Colorado, and ESCM would be supervising the Stifflers’

removal of the asbestos. None of this information was true. 28 Indeed, Shaw knew

the Stifflers were burying insulation.

       Even limiting Shaw’s scheme to the concealment of the physical presence

of asbestos, we conclude Shaw’s activities in 1994 and 1997 involved such

concealment. In November 1993, Shaw informed the EPA via the Notification of

Demolition and Renovation that Area A of the refinery did not contain asbestos,

when in fact it was riddled with asbestos. Continuing that concealment, none of

Shaw’s sampling from Area A in March 1994 tested positive for asbestos.

Additionally, Shaw was aware the Stifflers were burying insulation and told Lee


       28
         Shaw attempts to minimize the falsity of this information. He states that at the
time he made the representations in the 1994 notification and cover letter, ESCM was in
the process of negotiating with the Stifflers to provide them its services and BFI had been
contacted regarding the removal of asbestos. However, the documents state these
representations as established facts — that ESCM had arranged for BFI to remove the
asbestos and that its personnel would be on site as supervisors.

                                           -27-
Stiffler they could continue to do so. Shaw also gave the Stifflers permission to

drop the cat cracker in May 1997, which was subsequently discovered to contain

asbestos. Thereafter, the EPA ordered the Stifflers’ demolition activities to cease

and the KDHE cited them for various state law violations. As a result, Jean

Stiffler wrote to the KDHE in July 1997 informing them no asbestos was present

on the cat cracker. At trial, Jean testified she based this statement on samples

Shaw took from the refinery. Therefore, contrary to Shaw’s arguments, his

activities in 1994 and 1997 concerned the concealment of the presence of

asbestos.

      Based on the above, we conclude the statute of limitations did not bar

Shaw’s prosecution under 18 U.S.C. § 1001(a)(1).

             3. Duty to Disclose

      Shaw argues that in order to convict him under § 1001, the Government had

to prove he had a duty to disclose the presence of asbestos to the EPA. He states

that under the EPA’s regulations, only owners or operators are required to

complete and file a Notification of Demolition and Renovation and therefore only

owners or operators have a duty to disclose. Shaw contends it is undisputed that

he did not own the refinery. As to whether he was an “operator” of the facility,

he alleges the EPA’s definition of operator as one who “operates, controls, or

supervises a stationary source” should be declared void for vagueness. See 42

U.S.C. § 7412(a)(9). Alternatively, Shaw contends that to be an “operator,” one

must be more than a mere consultant and, at a minimum, must actively participate

in the day-to-day activities of the demolition/renovation operation. He asserts the


                                        -28-
Government’s evidence at trial did not support such a finding. Specifically, he

points out he was not involved in the day-to-day operations at the refinery and

made only a few visits to the refinery over a four year period.

       The Government alleges that although Shaw may not have had a duty to

report the presence of asbestos to the EPA, once he did so, he was obligated to

provide truthful information under § 1001. The Government also argues there is

no requirement under § 1001 that there be a separate statute or regulation

requiring the defendant to provide information.

       Section 1001 of Title 18 encompasses two distinct offenses -- concealment

of a material fact (18 U.S.C. § 1001(a)(1)) and the making of a false statement

(18 U.S.C. § 1001(a)(2)). 29 Shaw was convicted of the former. A conviction

under § 1001(a)(1), unlike that under § 1001(a)(2), requires proof that the

defendant had a legal duty to disclose the fact concealed. 30 The Government must

       29
            18 U.S.C. § 1001(a)(2) states in relevant part:

       [W]hoever, in any matter within the jurisdiction of the executive, legislative, or
       judicial branch of the Government of the United States, knowingly and willfully –-
       ...

                (2) makes any materially false, fictitious, or fraudulent statement or
                representation; . . .

       shall be fined [or] imprisoned not more than 5 years . . . .
       30
          Compare United States v. Kingston, 971 F.2d 481, 489 (10th Cir. 1992) (holding
that under § 1001(a)(1), the Government must prove: “1) the defendant knowingly
concealed a fact by any trick, scheme, or device; 2) the defendant acted willfully; 3) the
fact concealed was material; 4) the subject matter involved was within the jurisdiction of
a department or agency of the United States; and 5) the defendant had a legal duty to
disclose the fact concealed”), with United States v. Irwin, 654 F.2d 671, 675-76 (10th Cir.

                                              -29-
establish that “the law required disclosure of the information at the time the

defendant allegedly concealed it . . . .” Irwin, 654 F.2d at 679 (“[T]here can be

no criminal conviction for failure to disclose when no duty to disclose is

demonstrated.”). Thus, to the extent the Government is arguing that it was not

required to prove that Shaw had a legal duty to disclose the presence of asbestos

to the EPA, it is mistaken. Indeed, the jury instructions required such a showing.

      Nevertheless, the Government met its burden in this case. The “duty to

disclose” element of § 1001(a)(1) can be established by demonstrating that an

agency form required such disclosure. Kingston, 971 F.2d at 489 (“A defendant’s

duty to disclose is established where a government form required a disclosure of

concealed information.”). In this case, the Government presented the jury with

the November 1993 and June 1994 “Notifications of Demolition and Renovation.”

These forms required disclosure of whether the demolition or renovation project

involved the removal of asbestos, the approximate amount of asbestos, the

description of the work practices to be used to prevent the emission of asbestos,

and the identity of the waste transporter and waste disposal site. Thus, these

forms created a legal duty on the one completing and submitting them to disclose

the presence of asbestos and if present, the method of abatement. It is undisputed

that Shaw completed and submitted these forms to the EPA. Consequently, he

had a legal duty to disclose the presence of asbestos. This is true even if Shaw, as


1981) (holding that § 1001(a)(2) requires the Government to show: “(1) the defendant
made a statement; (2) the statement was false, fictitious or fraudulent as the defendant
knew; (3) the statement was made knowingly and willfully; (4) the statement was within
the jurisdiction of the federal agency; and (5) the statement was material”).

                                          -30-
a non-owner/operator of the refinery, was not required to complete or submit

these forms to the EPA under the federal regulations. See 40 C.F.R. § 61-145(b)

(requiring owners/operators to provide written notice of demolition activity

involving asbestos to the EPA). The notification form itself, apart from the

federal regulations, created a duty to disclose. Additionally, nothing in the

regulations preclude an owner/operator from having an agent complete and submit

the notification on his/her behalf.

      D. Conclusion

      Based on the above, we affirm Shaw’s conviction. We now turn to the

parties’ sentencing arguments.

                                      II. Sentence

      In Shaw’s presentence investigation report (PSR), the probation officer

calculated the base offense level as 6 pursuant to USSG §2F1.1, the guideline

applicable for a violation of 18 U.S.C. § 1001(a)(1). 31 The officer enhanced the

base offense level by five based on the EPA’s estimate that it would cost $50,000

to clean up the asbestos improperly buried at the Shallow Water Refinery. See

USSG §2F1.1(b)(1)(F) (providing for a five level increase in the base offense

level if the “loss” was more than $40,000 but less than $70,000). The officer also

enhanced the base offense level by two levels because the offense involved

repeated acts and therefore more than minimal planning. See USSG §2F1.1(b)(2).



      31
         Because Shaw was sentenced pursuant to the 1995 edition of the United States
Sentencing Guidelines Manual, all guideline citations refer to the 1995 edition, unless
noted otherwise.

                                          -31-
The probation officer further recommended a two level upward adjustment

because the offense was committed by someone with special skill. See USSG

§3B1.3. Based on a total offense level of 15 and a criminal history category of I,

the probation officer determined the sentencing guideline range was eighteen to

twenty-four months imprisonment.

       Shaw filed numerous objections to the PSR. In particular, he opposed the

five level enhancement based on the “loss” exceeding $40,000, the two level

enhancement for more than minimal planning and the two level upward

adjustment because the offense was committed by someone with special skill.

Shaw also filed a motion for downward departure based on aberrant behavior.

Shaw initially appeared for sentencing on June 29, 2001, but the sentencing

hearing was continued to September 5, 2001, to allow the parties to brief the

subject matter jurisdiction issue. Ultimately, the district court imposed the five

level enhancement based on the “loss” exceeding $40,000, 32 denied the two level

enhancement for more than minimal planning, denied the two level upward

adjustment based on the offense being committed by someone with special skill

and denied the motion for downward departure based on aberrant behavior.

Based on these determinations, the district court calculated an offense level of 11.

       32
          At sentencing, the Government presented the testimony of Kenneth Rapplean,
the on-scene coordinator in the Super Fund Division of the EPA. He testified
approximately 510 cubic yards of asbestos was buried at the refinery and estimated it
would cost the EPA a total of $247,479 to clean it up. Based on this testimony, the
district court found that the total cost to clean up the refinery was close to a quarter of a
million dollars and therefore, the cost of remediation will “clearly” exceed $50,000. (R.
Vol. VIII at 1075.) Consequently, the court concluded a five level enhancement to the
base offense level was appropriate under USSG §2F1.1(b)(1)(F).

                                             -32-
With a Criminal History Category I, the court determined the applicable guideline

range was eight to fourteen months imprisonment. The court sentenced Shaw to

four months imprisonment and two years of supervised release, recommending

that Shaw serve his four month sentence in a halfway house. As a special

condition of supervised release, the court ordered Shaw to serve four months of

home confinement. See 18 U.S.C. §§ 3563(b)(19), 3583(d); see also USSG

§5F1.2 (“Home detention may be imposed as a condition of probation or

supervised release, but only as a substitute for imprisonment.”). The court further

ordered Shaw to pay $50,000 in restitution to the EPA.

      On appeal, Shaw challenges the five level enhancement based on the “loss”

exceeding $40,000 under USSG §2F1.1(b)(1)(F) and argues he was sentenced in

violation of the Sixth Amendment under Blakely v. Washington, 542 U.S. 296

(2004). The Government cross-appeals, arguing the district court erred in

denying the two level enhancement for more than minimal planning under USSG

§2F1.1(b)(2). As we discuss next, because we conclude the district court erred in

failing to impose a two level enhancement for more than minimal planning, we

need not reach the other issues.

      A. Standard of Review

      The Supreme Court recently decided United States v. Booker, 125 S. Ct.

738 (2005). In Booker, the Supreme Court invalidated the mandatory-nature of

the federal sentencing guidelines. Id. at 756-57. It also altered our standard of

review, requiring us to review sentences for unreasonableness. Id. at 765-66.

However, because Shaw was sentenced prior to Booker, we apply the pre-Booker


                                        -33-
standard of appellate review, reviewing legal questions de novo and any factual

findings for clear error. United States v. Souser, 405 F.3d 1162, 1165 (10th Cir.

2005); United States v. Doe, 398 F.3d 1254, 1257 (10th Cir. 2005).

      B. Denial of Two Level Enhancement for More than Minimal Planning

      Section 2F1.1(b)(2) of the guidelines requires a two level enhancement to

the base offense level if “the offense involved [] more than minimal planning . . .

.” The Commentary to §2F1.1 refers to the Commentary to §1B1.1 for the

definition of “more than minimal planning.” USSG §2F1.1 comment. (n. 2). The

Commentary to §1B1.1 states:

      “More than minimal planning” means more planning than is typical for
      commission of the offense in a simple form. “More than minimal planning”
      also exists if significant affirmative steps were taken to conceal the
      offense. . . . “More than minimal planning” is deemed present in any case
      involving repeated acts over a period of time, unless it is clear that each
      instance was purely opportune. Consequently, this adjustment will apply
      especially frequently in property offenses.

USSG §1B1.1 comment. (n. 1(f)). “[T]he . . . more than minimal planning

enhancement[] [is] designed to target criminals who engage in complicated

criminal activity because their actions are considered more blameworthy and

deserving of greater punishment than a perpetrator of a simple version of the

crime.” United States v. Rice, 52 F.3d 843, 851 (10th Cir. 1995).

      In its cross-appeal, the Government challenges the district court’s denial of

a two level enhancement under USSG §2F1.1(b)(2) for more than minimal

planning. It contends this enhancement was appropriate because Shaw engaged in

repeated acts over a period of time, including: (1) making fraudulent written and



                                        -34-
oral representations to the EPA in a telephone call, letter and Notification of

Demolition and Renovation in November 1993; (2) conducting a fraudulent

sampling of the refinery on March 3, 1994; (3) making fraudulent representations

to the EPA in a letter and revised Notification of Demolition and Renovation in

June 1994; (4) obtaining a false signature on the revised “Notification of

Demolition and Renovation;” and (5) representing to the Stifflers that the cat

cracker did not contain asbestos. The Government also alleges Shaw’s actions

involved “more planning than is typical for commission of the offense in a simple

form.”   It points out that in November 1993, rather than simply informing the

EPA that there was no asbestos in Area A, Shaw “took pains” in his

correspondence to (1) include his certification as a licensed supervisor of asbestos

abatement projects, (2) advise that he had personally inspected the premises, and

(3) inform the EPA that demolition activities would stop if any asbestos was

found. (Government’s Br. at 29.) The Government also refers to the fact that

Shaw then conducted a sampling of the refinery in such a way as to confirm that

no asbestos was present in Area A. It also points to Shaw’s false assurances to

the EPA in 1994 that the Stifflers were complying with the environmental

regulations and ESCM was supervising their activities. Lastly, the Government

points out Shaw informed the Stifflers it was permissible to bury insulation from

Area A, thereby preventing the EPA from discovering it.

      Shaw contends the district court properly denied the more than minimal

planning enhancement. He contends the March 1994 sampling, the burial of

asbestos and the June 1994 correspondence were “purely opportune” and not in


                                         -35-
furtherance of the offense. He also contends that although his sampling in Area A

did not reveal the presence of asbestos, many of his other samples tested positive

for asbestos. Based on his sampling, he prepared a revised “Notification of

Demolition and Renovation,” stating “all areas” of the facility contained asbestos.

(R. Vol. I at 109.) Therefore, he contends he was not trying to deceive the EPA

about the presence of asbestos.

      A district court’s decision that the defendant engaged in more than minimal

planning is reviewed for clear error. United States v. Orr, 68 F.3d 1247, 1253

(10th Cir. 1995); United States v. Williams, 966 F.2d 555, 558 (10th Cir. 1992).

“Clear error occurs . . . when we are left with the firm conviction a mistake has

been made.” United States v. Lin, 410 F.3d 1187, 1192 (10th Cir. 2005).

      At the initial sentencing hearing, the district court denied Shaw’s objection

to the more than minimal planning enhancement, stating:

             In this case it appears to me - and it is accurate - this occurred over a
             period of four years, four and a half years, started in ‘93 and went
             into ‘97. . . . I am aware, of course, . . . that Mr. Shaw was
             acquitted on a couple of counts as well, but the standard that we use
             here in terms of whether minimal planning occurred or not is not
             whether it’s been proved beyond a reasonable doubt or not, but it’s a
             much lighter standard here. It is my sense, given the number of
             contacts that Mr. Shaw had with the Stifflers, with the state and the
             other persons who have been involved in this case that -- let me back
             up. I think a good case could be made that there wasn’t more than
             minimal planning or he probably would have done a better job of
             trying to cover his tracks than what he did. The more than minimal
             planning, seems to me the strongest evidence, is just the period of
             time that it went on and the fact that Mr. Shaw did not disengage
             himself from this process and made affirmative representations with
             respect to the absence of asbestos at the site and that testing had, in
             fact, been done when it appears that that clearly was not the case.

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             I think in the circumstance, while it’s a close question, that the two
             point increase for more than minimal planning is appropriate, and I
             am going to deny that objection . . . .

(R. Vol. VIII at 1087-88.) However, at the final sentencing hearing, the district

court reconsidered this determination and denied the more than minimal planning

enhancement. It stated:

      [W]hile I think technically I was correct in dealing with [Shaw’s objection
      to the more than minimal planning enhancement] and upholding the two-
      level enhancement last time, I’m not satisfied that maybe being technically
      correct is appropriate in this matter and taking a look at what Mr. Shaw’s
      responsibilities actually were. I’m planning to change my ruling on that to
      grant [Mr. Shaw’s] objection with respect to minimal planning.

(Id. at 1123.)

      The district court was correct the first time. As the Government argues,

and the district court found during the initial sentencing hearing, Shaw’s offense

involved “repeated acts over a period of time.” “[T]he notion of repeated acts

refers to a series of acts each of which would be criminal standing alone, rather

than referring to a crime that requires the completion of a series of steps.” United

States v. Proffit, 304 F.3d 1001, 1005 (10th Cir. 2002). In order to have

“repeated acts,” “there must have been more than two instances of the behavior in

question.” United States v. Bridges, 50 F.3d 789, 793 (10th Cir. 1994).

      The evidence at trial clearly showed that Shaw engaged in more than two

acts of concealment of the presence of asbestos (each of which would be criminal

standing alone) over a four year time span. In 1993, before Branscum’s first visit

to the refinery, Shaw told the Stifflers not to allow any government inspectors on

the property. After Branscum’s visit, Shaw telephoned Alice Law of the EPA,

                                         -37-
falsely informing her no asbestos was present in Area A of the refinery. The next

day, he filed the first Notification of Demolition and Renovation and cover letter,

falsely stating he had inspected the property, no asbestos was present in Area A

and ESCM would be “working with [the Stifflers] very closely on the remainder

of [the demolition] project to assist them in their compliance efforts.” (R. Supp.

Vol. I at 39.) In March 1994, Shaw conducted a fraudulent sampling of the

refinery. He also observed holes where the Stifflers had buried insulation and

told the Stifflers they could continue to bury the insulation. 33 On June 20, 1994,

Shaw submitted another cover letter and the revised Notification of Demolition

and Renovation containing the forged signature of “C.L. Stiffler.” These

documents falsely indicated that the Stifflers had arranged for BFI to remove the

asbestos from the refinery and that ESCM personnel would be on site to supervise

the Stifflers’ abatement activities. In 1997, the Stifflers received Shaw’s

permission to drop the cat cracker. In July 1997, based on Shaw’s sampling of

the cat cracker, Jean Stiffler informed the KDHE that the cat cracker did not

contain asbestos. Contrary to Shaw’s arguments, we find none of the above

actions “purely opportune,” that is, “spur of the moment conduct, intended to take


      33
          Shaw argues that none of the Stifflers testified he told them they could bury
asbestos; rather, he contends the evidence at most consisted of him telling Jean Stiffler
they could bury insulation. This argument is disingenuous. The evidence at trial
demonstrated Shaw told the Stifflers they could bury the insulation without any testing as
to whether the insulation contained asbestos. The evidence further showed that the
Stifflers relied on Shaw’s advice concerning the removal of the insulation and Shaw
never ensured that the insulation did not contain asbestos prior to its removal. Moreover,
once Shaw learned the refinery contained asbestos, he never advised the Stifflers on how
to properly remove and dispose of it.

                                           -38-
advantage of a sudden opportunity.” See United States v. Rust, 976 F.2d 55, 57

(1st Cir. 1992). Consequently, a more than minimal planning enhancement was

warranted under the “repeated acts” provision of USSG §1B1.1 comment. (n.1(f)).

      We also find that Shaw’s offense involved “more planning than is typical

for commission of the offense in a simple form.” 34 The proper inquiry is whether

Shaw’s actions “demonstrated a greater amount of planning than [is] required” to

engage in a scheme to conceal the presence of asbestos from the EPA in its simple

form. Proffit, 304 F.3d at 1006. While Shaw’s scheme to conceal the presence of

asbestos could have been accomplished merely by submitting the false

“Notifications of Demolition and Renovation” in 1993 and 1994, Shaw’s conduct

went beyond that. He also told the Stifflers not to permit any government

inspectors on the property, took a fraudulent sampling of the refinery, told the

Stifflers they could bury insulation from Area A and gave the Stifflers permission

to drop the cat cracker. These actions demonstrate a level of planning in excess

of the amount of planning required to engage in a scheme to conceal the presence

of asbestos in its simple form.

      The district court’s reasons are insufficient for reversing its previous

determination that the offense involved more than minimal planning. It did not

explain why “being technically correct” was inappropriate in this case. Moreover,


      34
          We recognize that the district court did not address whether Shaw’s offense
involved more than minimal planning based on it requiring “more planning than is typical
for commission of the offense in a simple form.” Nevertheless, because the Government
raised it below as a grounds for imposing the more than minimal planning enhancement
and no additional fact-finding need be made, we address it as an additional reason the
court clearly erred in denying a more than minimal planning enhancement in this case.

                                          -39-
it is unclear how “taking a look at what Mr. Shaw’s responsibilities actually

were” constituted grounds for the district court reversing its prior decision.

Therefore, we conclude the court clearly erred in denying the more than minimal

planning enhancement and a remand for re-sentencing is necessary.

      C      Imposition of Five Level Enhancement for Loss Exceeding $40,000
             and Blakely

      Shaw contends the district court erred in imposing the five level

enhancement under § 2F1.1(b)(1) based on the “loss” exceeding $40,000. He also

argues his sentence violates the Sixth Amendment under Blakely. Because we

conclude this case must be remanded for re-sentencing on other grounds, we need

not address these issues. Souser, 405 F.3d at 1163 n.1; United States v. Cano-

Silva, 402 F.3d 1031, 1039 (10th Cir. 2005). However, Shaw’s re-sentencing

must be conducted in light of the Supreme Court’s recent decision in Booker.

                                  III. Conclusion

      Shaw’s conviction is AFFIRMED. We REMAND this matter to the

district court with instructions to resentence him in accordance with this order and

judgment and Booker.

                                        Entered by the Court:

                                        Terrence L. O’Brien
                                        United States Circuit Judge




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