        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206           2    United States v. Kuhn                      No. 02-1031
    ELECTRONIC CITATION: 2003 FED App. 0348P (6th Cir.)
                File Name: 03a0348p.06                    William A. Brisbois, BRISBOIS & BRISBOIS, Saginaw,
                                                          Michigan, for Appellee.
UNITED STATES COURT OF APPEALS                                               _________________
               FOR THE SIXTH CIRCUIT                                             OPINION
                 _________________                                           _________________

 UNITED STATES OF AMERICA ,       X                         BOGGS, Chief Circuit Judge. Michael J. Kuhn was
                                   -                      sentenced to six months at a halfway house and six months of
          Plaintiff-Appellant,                            supervised release following his conviction for improperly
                                   -
                                   -   No. 02-1031        discharging a pollutant into navigable waters, causing an
            v.                     -                      employee to falsify test results in records submitted to the
                                    >                     government, and signing and submitting a report to the
                                   ,                      government that he knew contained false test results. The
 MICHAEL J. KUHN ,                 -
           Defendant-Appellee. -                          government now appeals a four-level downward departure
                                                          granted by the district court to Kuhn. For the reasons set
                                  N                       forth below, we reverse, and remand the case for
       Appeal from the United States District Court       resentencing.
     for the Eastern District of Michigan at Bay City.
    No. 99-20060—David M. Lawson, District Judge.           Kuhn was the Superintendent of the Bay City, Michigan,
                                                          Wastewater Treatment Plant (the Plant). The wastewater that
                  Argued: May 6, 2003                     comes into the Plant goes through a number of stages before
                                                          being released into the Saginaw River. On or about
          Decided and Filed: October 1, 2003              August 25, 1996, during the midnight shift, staff at the Plant
                                                          began cleaning the chlorine contact chamber, which is the
     Before: BOGGS, Chief Circuit Judge; GUY and          penultimate stage of the process. The Plant had a National
             DAUGHTREY, Circuit Judges.                   Pollutant Discharge Elimination System (NPDES) permit that
                                                          governed its operation under the Clean Water Act (CWA).
                  _________________                       The plant was obligated to notify the Michigan Department of
                                                          Environmental Quality (DEQ) within five days of any
                       COUNSEL                            accidental spill or bypass of the treatment system. At the end
                                                          of August 1996, sludge from the chlorine contact chamber
ARGUED: Jennifer J. Peregord, UNITED STATES               was illegally pumped into a ditch while the chlorine contact
ATTORNEY, Detroit, Michigan, for Appellant. William A.    chamber was being cleaned. This was done on Kuhn’s
Brisbois, BRISBOIS & BRISBOIS, Saginaw, Michigan, for     orders. In November 1996, Kuhn had the soil from the ditch
Appellee. ON BRIEF: Jennifer J. Peregord, UNITED          excavated and hauled away.
STATES ATTORNEY, Detroit, Michigan, for Appellant.


                            1
No. 02-1031                           United States v. Kuhn          3    4    United States v. Kuhn                       No. 02-1031

   Pursuant to the Plant’s NPDES permit, the Plant was                    18 U.S.C. § 2; second, that between the same dates he
required to submit monthly discharge monitoring reports to                knowingly caused the sewage sludge to be discharged from
the DEQ. As superintendent, Kuhn certified the accuracy of                the ditch into the Saginaw River, in violation of 33 U.S.C.
the information in these reports. The reports contained data              § 1311(a) and 18 U.S.C. § 2; third, that on June 9, 1997, he
regarding laboratory findings charting both the material                  caused an employee to assist in falsifying test results that
coming into the Plant (“influent”) and the material being                 were included in records that, under the CWA, were required
discharged from the Plant (“effluent”). A Plant technician                to be filed, in violation of 33 U.S.C. § 1319(c)(4) and
drew Kuhn’s attention to very high numbers for BOD-51 on                  18 U.S.C. § 2; and fourth, that on June 10, 1997, he signed
a sample drawn May 3, 1997. Kuhn asked the technician to                  and submitted to the DEQ a discharge monitoring report,
change the results, and the technician refused. The technician            required by the CWA, which he knew contained the false test
made a copy of the original printout, suspecting that the                 results, in violation of 33 U.S.C. § 1319(c)(4).
numbers might be altered in the final report to the DEQ.
Later, another technician gave the final report for the month               After a three-week jury trial, the jury returned a verdict of
of May to Kuhn for his review and signature. He told her that             guilty on all counts. Kuhn filed a post-verdict motion for
the test results for suspended solids, total phosphorous, and             judgment of acquittal. The district court granted this motion
BOD-5 for May 3 must be wrong and asked her to change the                 in part, dismissing count two on double jeopardy grounds.
numbers to the averages for the month. She refused.                       The presentence report (PSR) calculated Kuhn’s sentencing
However, when she checked the final report, the data for                  range at 30-37 months, with a total offense level of nineteen.
May 3 had been changed to the monthly averages.2 Kuhn                     This number was reached by finding a base offense level of
then asked yet another technician to change the test results,             six for count one (U.S.S.G. § 2Q1.3(a)). The PSR then
which he did. The technician wrote a memo memorializing                   recommended two four-level increases for specific offense
the fact that he had changed the test results at Kuhn’s                   characteristics: pursuant to § 2Q1.3(b)(1)(B), due to the
direction. Kuhn signed the final, altered report on June 10,              offense involving a discharge or release of a pollutant; and
1997, and submitted it to the DEQ.                                        pursuant to § 2Q1.3(b)(4), due to the offense involving a
                                                                          discharge without a permit or in violation of a permit. The
   Kuhn was subsequently indicted in a four-count indictment              PSR recommended two additional two-level increases:
that charged: first, that between August 23 and 30, 1996,                 pursuant to § 3B1.1(c) for Kuhn’s role as an organizer, leader,
Kuhn knowingly caused plant workers to dispose of sewage                  manager, or supervisor in a criminal activity; and pursuant to
sludge improperly, which resulted in the sludge flowing into              § 3B1.3 due to his abuse of a position of public trust in a
a ditch on the plant property and then into the Saginaw River,            manner that significantly facilitated the commission or
a navigable waterway, in violation of 33 U.S.C. § 1345(a) and             concealment of this offense. This resulted in a recommended
                                                                          adjusted offense level of eighteen for count one.
    1
      “BOD-5" refers to a test which mea sures a wastewater sam ple’s       For counts three and four, the PSR recommended a base
“Bio chem ical Oxygen Demand” over a 5 -day period .                      offense level of six (§ 2Q1.3(a)) with the same two increases
    2
                                                                          for leadership role and abuse of a position of public trust.
      Kuhn maintains that the high numbers were only for the influent     This resulted in a recommended adjusted offense level of ten
flow and that the numbers for the effluent flow were in line with the     for counts three and four. According to the grouping rules,
mon thly averages. He therefore purportedly concluded that the influent
flow numbe rs must have b een incorrect.
                                                                          found at § 3D1.4, one offense level was added to the group
No. 02-1031                       United States v. Kuhn       5    6      United States v. Kuhn                         No. 02-1031

with the highest adjusted offense level. Therefore, the            sixteen. The defense then moved for a downward departure
recommended combined adjusted offense level was nineteen.          based on Kuhn’s acts of a charitable or public service nature
                                                                   within the community.
  At the sentencing hearing, the defense objected to the
addition of the increases for the two specific offense                The court denied the motion, but went on to state that it
characteristics. The court overruled this objection, finding       doubted that a 21- to 27-month term of incarceration “serves
that application of the two specific offense characteristics did   the ends of justice in this case.” The court stated that it
not constitute double-counting. Next, the government               questioned the two two-level adjustments for role in the
objected to the PSR’s omission of its requested 11-level           offense and abuse of a position of public trust. It stated that
enhancement pursuant to § 2Q1.3(b)(2) because the offense          “the offense in this case did not necessarily entail an abuse of
resulted in a substantial likelihood of death or serious bodily    trust that was separate and apart from the defendant’s position
injury. The court overruled the government’s objection.            that permitted him to be a leader or organizer of the activity.”
Next, the government objected to the PSR’s failure to include      Therefore, the court concluded, scoring the two adjustments
a two-level increase for obstruction of justice, pursuant to       in a single case constituted an over-counting. Moreover, the
§ 3C1.1 and application note 4(b), based on Kuhn’s false           court stated that, although applying the two specific offense
testimony given at trial.         The court overruled the          characteristics did not constitute double-counting, it “put
government’s objection.                                            undue weight on the offense characteristics for this specific
                                                                   offense,” because the offense for which Kuhn was convicted
   The defense did not object to the two two-level increases       consisted of a single discharge. The court also noted that it
for Kuhn’s leadership role and abuse of a position of public       felt that the sentence in the case
trust. The defense, however, did move for a downward
adjustment or departure, based on § 2Q1.3, application notes           ought to be fashioned around the fact that the discharge
4 and 7, which advise the court that upward and downward               in this case resulted from essentially a single incident that
departures are appropriate depending upon the harm or risk             occurred over a day or two, and was motivated by the
associated with the offense. The court departed downward               defendant’s desire to make the plant more efficient so
two levels with regard to each offense characteristic, for a           that it would perform the function of enhancing the
total of four levels subtracted from the adjusted offense level        environmental quality as opposed to degrading it.
for count one. The court explained that testing of the affected
areas did not indicate any presence of PCBs, that the chlorine     Therefore, the court departed downward by four additional
contact chamber was the last stage that polluted water reached     levels.
before it was released into the environment, and that there
were serious questions in the court’s mind “as to whether any        In its judgment, the court added more reasons for granting
of the contents of that ditch ever made it into the Saginaw        the additional four-level downward departure, indicating that
River.”                                                            “[t]he circumstances of this case, including the defendant’s
                                                                   motivation and purpose, takes this case out of the ‘heartland’
  At this point, the adjusted offense level for count one stood    of offenses contemplated by the Sentencing Guidelines.”
at fourteen. The court then calculated that, pursuant to           First, the court reiterated that Kuhn “was motivated by a
§ 3D1.4, two levels were to be added to that for grouping          desire to clean up and improve the efficient operation of the
purposes. This resulted in a combined offense level of             Bay City Wastewater Treatment Plant.” Apparently, the court
No. 02-1031                          United States v. Kuhn          7    8        United States v. Kuhn                     No. 02-1031

concluded that Kuhn was taking a shortcut, engaging in                      We review a district court’s decision to grant a downward
conduct not authorized by the permit issued to the plant, and            departure for an abuse of discretion. See United States v.
violated the Clean Water Act in so doing. The court went on              Reed, 264 F.3d 640, 646 (6th Cir. 2001) (citing Koon v.
to say:                                                                  United States, 518 U.S. 81, 100 (1996)). A sentencing court
                                                                         may impose a sentence outside the guidelines range only if
  Given the defendant’s background, however, his length                  the court finds “that there exists an aggravating or mitigating
  of service in the area of public waste management, and                 circumstance of a kind, or to a degree, not adequately taken
  other minor factors such as his community involvement                  into consideration by the Sentencing Commission in
  and exemplary personal record of achievements in the                   formulating the guidelines . . . .” U.S.S.G. § 5K2.0 (quoting
  community, the Court finds credible the defendant’s                    18 U.S.C. § 3553(b)). A district court abuses its discretion
  professed motive that the efficient, pollution-free                    when it fails to give notice of its intention to depart. See
  operation of the Bay City Wastewater Treatment Plant                   Burns v. United States, 501 U.S. 129, 135 n.4 (1991); United
  was his ultimate goal.                                                 States v. Yang, 281 F.3d 534, 547 (6th Cir. 2002). The
                                                                         district court departed downward based on three reasons. We
  Therefore, the court imposed a sentence based on offense               consider the validity of these reasons separately below.
level twelve and a criminal history category of I. Kuhn was
sentenced to six months at a halfway house, six months of                    1.    Departure based on enhancements for Kuhn’s role in
supervised release, and the minimum fine of $6,000.                                the offense and abuse of a position of public trust.
   The government filed a timely notice of appeal, appealing                The district court failed to give notice to the government of
the unguided four-level downward departure.3 It first argues             its intention to depart on this basis. Rule 32 of the Federal
that the district court gave no notice to the government of its          Rules of Criminal Procedure provides that:
intention to depart on the basis of Kuhn’s role in the offense
and abuse of a position of public trust enhancements, nor on                 Before the court may depart from the applicable
the basis of the application of the specific offense                         sentencing range on a ground not identified for departure
enhancements of § 2Q1.3. The government argues that even                     either in the presentence report or in a party's prehearing
if it had received proper notice, the downward departure on                  submission, the court must give the parties reasonable
these bases was improper. Finally, the government argues                     notice that it is contemplating such a departure. The
that the additional reasons for the downward departure added                 notice must specify any ground on which the court is
in the district court’s judgment were not supported by any                   contemplating a departure.
factual bases and are discouraged factors for downward
departures under the sentencing guidelines, and that the                 Fed. R. Crim. P. 32. The district court’s failure to notify the
district court did not give notice of its intent to depart               government that it was planning to depart on this basis was
downward on these bases.                                                 error. See Yang, 281 F.3d at 547.
                                                                           Even if the district court had given the government notice,
                                                                         the downward departure based on these enhancements was
    3
                                                                         improper. During the sentencing hearing, defense counsel
       The initial four-level downward departure, pursuant to § 2Q1.3,   conceded, and the district court found, that both
app lication notes 4 and 7 , was a gu ided departure.
No. 02-1031                       United States v. Kuhn       9    10   United States v. Kuhn                        No. 02-1031

enhancements were proper in this case. However, the district       departing downward seems to indicate that it believes the
court stated that the enhancements, if applied cumulatively,       enhancement should not have been applied. If this is the case,
over-counted because “the offense in this case did not             then the district court should not have applied the
necessarily entail an abuse of trust that was separate and apart   enhancement in the first place. However, it is clear that the
from the defendant’s position that permitted him to be a           enhancement was properly applied. Kuhn was a government
leader or organizer of the activity.” In its judgment, the         employee, charged with the safe and efficient operation of a
district court added to its rationale, stating that the abuse of   wastewater treatment operation. He was convicted of
trust enhancement should be discounted because “a                  knowingly causing sewage sludge to be discharged into a
significant number of members of the general public did not        navigable waterway and falsifying reports. The statutes that
enjoy a beneficial or quasi-fiduciary relationship with the        were violated were in place to protect the general public from
defendant in his role as a public servant.”                        this sort of activity. It is difficult to see how members of the
                                                                   general public were not in a beneficial relationship with
  The abuse of a position of public trust enhancement              Kuhn, as significant numbers of the public depended upon
“applies to persons who abuse their positions of trust . . . to    Kuhn to prevent or ameliorate water pollution in the area.
facilitate significantly the commission or concealment of a        Moreover, his high-level position with respect to his public
crime.” U.S.S.G. § 3B1.3, comment. (backg’d.). “[A                 function of wastewater treatment, “contributed in some
position of public or private trust is] characterized by           significant way to facilitating the commission” of his offense.
professional or managerial discretion (i.e., substantial           U.S.S.G. § 3B1.3, comment. (n.1).
discretionary judgment that is ordinarily given considerable
deference).” Id. at comment. (n.1). As the district court            The aggravating role enhancement “increase[s] the offense
impliedly found when it applied the enhancement, Kuhn              level based upon the size of the criminal organization . . . and
satisfied these elements.                                          the degree to which the defendant was responsible for
                                                                   committing the offense.” U.S.S.G. § 3B1.1, comment.
   The district court’s reasoning that the abuse of trust          (backg’d.). It generally addresses a defendant’s relative
enhancement should be discounted because “a significant            responsibility for the crime. Again, the district court found
number of members of the general public did not enjoy a            that Kuhn satisfied these elements when it applied the
beneficial or quasi-fiduciary relationship with the defendant      enhancement. The aggravating role enhancement relates to
in his role as a public servant” is invalid under our opinion in   Kuhn’s role as a supervisor over others in the operation of the
United States v. White, 270 F.3d 356 (6th Cir. 2001). There        Plant. Kuhn directed others to discharge the contents of the
we held that “the general public may be victims of a               chlorine contact chamber into the ditch, and directed
government employee’s crimes for purposes of deciding              technicians to change test results.
whether the employee’s sentence may be enhanced pursuant
to § 3B1.3.” Id. at 371. The defendant in White was a                Applying these two enhancements cumulatively does not
general superintendent at a drinking water treatment plant         “over-count,” as each enhancement has elements that are not
who was convicted of filing false reports. Although the            necessary for the determination of the other. In White, this
question there was whether the enhancement should apply to         court addressed the appropriateness of applying both a
White, while here we are reviewing a downward departure            leadership and an abuse-of-trust enhancement. See White,
after the enhancement has already been applied, the court’s        270 F.3d at 371-73. The district court in White applied the
holding is relevant here. The district court’s statement in        § 3B1.3 enhancement solely because it found the defendants
No. 02-1031                        United States v. Kuhn      11    12     United States v. Kuhn                       No. 02-1031

used a special skill in committing their offenses. Id. at 370.        2.    Departure based on the specific offense enhancements
When it declined also to apply the enhancement because of                   of Section 2Q1.3
the abuse of a position of public trust, the district court
foreclosed the government from seeking an aggravating role            Section 2Q1.3 addresses the offense for which Kuhn was
enhancement under § 3B1.1. Ibid. (citing § 3B1.3 “if this           convicted. The relevant specific offense characteristics are:
adjustment is based solely on the use of a special skill, it may
not be employed in addition to an adjustment under § 3B1.1            b) Specific Offense Characteristics
(Aggravating Role).”) We reversed, and remanded the case              (1) (A) If the offense resulted in an ongoing, continuous,
to the district court, directing that it apply the abuse-of-trust     or repetitive discharge, release, or emission of a pollutant
enhancement and to “consider the propriety of also enhancing          into the environment, increase by 6 levels; or
White’s sentence pursuant to Section 3B1.1.” Id. at 373.              (B) if the offense otherwise involved a discharge, release,
                                                                      or emission of a pollutant, increase by 4 levels.
   “Absent an instruction to the contrary, the adjustments from       (2) If the offense resulted in a substantial likelihood of
different guideline sentences are applied cumulatively (added         death or serious bodily injury, increase by 11 levels.
together).” U.S.S.G. § 1B1.1, comment. (n.4). As the district         (3) If the offense resulted in disruption of public utilities
court found that Kuhn satisfied the requirements for the              or evacuation of a community, or if cleanup required a
enhancements, it was an abuse of discretion to find that the          substantial expenditure, increase by 4 levels.
application of the enhancements together constituted double-          (4) If the offense involved a discharge without a permit
counting and therefore merited a downward departure. A                or in violation of a permit, increase by 4 levels . . . .
sentencing court may impose a sentence outside the
guidelines range only if the court finds “that there exists an      U.S.S.G. § 2Q1.3.
aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the                The district court enhanced Kuhn’s base offense level by
Sentencing Commission in formulating the guidelines . . . .”        four levels for both § 2Q1.3(b)(1)(B) and § 2Q1.3(b)(4), as
U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). It is clear         the offense involved “a discharge” and “a discharge . . . in
that the Sentencing Commission took into consideration the          violation of a permit.” In doing so, the district court
application of two or more enhancements for the same                specifically stated that applying both specific offense
conduct. The district court did not identify any facts or           characteristics did “not constitute double counting.”
circumstances that would take Kuhn’s case outside of the
“heartland” of offenders who violate their position of public         The application notes to each enhancement authorize
trust while simultaneously supervising others in illegal            downward or upward departures based on several factors. For
activity.                                                           § 2Q1.3(b)(1)(B), applicable if the offense involved a
                                                                    discharge of a pollutant, application note 4 contemplates an
  The district court erred first by not notifying the               upward or downward departure based on “the harm resulting
government that it intended to depart on this basis. Even if        from the . . . discharge, the quantity and nature of the
proper notice had been provided, the district court abused its      substance or pollutant, the duration of the offense and the risk
discretion in departing on this basis.                              associated with the violation . . . .” U.S.S.G. § 2Q1.3,
                                                                    comment. (n.4). For § 2Q1.3(b)(4), applicable if the offense
                                                                    involved a discharge without a permit or in violation of a
No. 02-1031                                United States v. Kuhn            13     14       United States v. Kuhn                            No. 02-1031

permit, application note 7 contemplates an upward or                               accounted for the frequency of the discharges and the nature
downward departure based on “the nature and quantity of the                        of the harm posed by Kuhn’s offenses. We agree.
substance involved and the risk associated with the offense
. . . .” U.S.S.G. § 2Q1.3, comment. (n.7). The district court                        A district court abuses its discretion when it departs based
granted Kuhn two two-level guided downward departures                              on a factor already considered by the Commission in the
pursuant to these two application notes, noting that the                           guidelines. Koon, 518 U.S. at 111. The district court noted
environmental harm did not seem to be very great. The                              that the offense-level characteristics accounted for the fact
government does not challenge these two guided departures.                         that Kuhn’s offense was not ongoing or repetitive, yet went
                                                                                   on to say that it was “persuaded that the sentence ought to be
  The district court then gave as one reason for its additional                    fashioned around the fact that the discharge in this case
unguided four-level downward departure, the application of                         resulted from essentially a single incident that occurred over
both these specific offense characteristics, stating that “[a]ll                   a day or two . . . .” But as we indicated in United States v.
discharges or emissions of a pollutant, in the context of a                        Rapanos, 235 F.3d 256 (6th Cir. 2000),5 quoting § 5K2.0,
violation of the applicable statutory section in this case,                        “[D]issatisfaction with the available sentencing range or a
necessarily must be accomplished in violation of or absent a                       preference for a different sentence than that authorized by the
permit. Where a single discharge occurred, the scoring of                          guidelines is not an appropriate basis for a sentence outside
both these factors puts undue weight on these offense                              the applicable guideline range.” Id. at 260. In Rapanos, we
characteristics in this case.”4                                                    found that the district court abused its discretion when it
                                                                                   granted two additional one-level downward departures after
  The government first argues that the district court failed to                    granting two two-level downward departures pursuant to
give notice that it intended to depart downward for this                           application notes 4 and 7. Ibid. We noted that although the
reason. However, the defendant moved for a downward                                guided departures were authorized by the facts found by the
departure on this basis and objected to the PSR on this basis;                     district court, the facts found did not authorize the additional
thus, the government was sufficiently on notice that this issue                    unguided departures, because “[a] district court abuses its
would be addressed at the sentencing hearing. See Fed. R.                          discretion when it takes into account a factor already
Crim. P. 32.                                                                       considered by the Commission in the guidelines.” Id. at 259-
                                                                                   61.
  The government also argues that the court had already
determined that applying both offense characteristics did not                        In this case, the guidelines take into account the factors that
constitute double-counting and had already granted Kuhn a                          concerned the district court. Section 2Q1.3(b)(1)(B)
two-level downward adjustment for each of subsections
(b)(1)(B) and (b)(4), and it contends that this more than
                                                                                        5
                                                                                         On bases not relevant here, this judgment was vacated by the United
                                                                                   States Supreme Court, Rapanos v. United States, 533 U.S. 913 (200 1),
    4
                                                                                   and remanded to this court. W e in turn remanded the case to the district
      The government argues that the district court erred in stating that “a       court, United States v. Rapanos, 16 Fed. Appx. 345, 2001 WL 868006
single discha rge occurred,” stating that trial testimon y confirm ed that         (6th Cir. July 13, 2001). The district court set aside the defendant’s
sludge was discharged on two separate occasions, although the                      conviction and d ismissed the case . United States v. Rapanos, 190 F.
government does not cite any trial testimony to this effect. However,              Supp. 2d 101 1 (E.D. M ich. 20 02). On appe al, we reversed. United States
whether the trial testimony reflects this fact is not dispositive on this issue.   v. Rapanos, 339 F.3d 44 7 (6th Cir. 2003).
No. 02-1031                        United States v. Kuhn       15    16     United States v. Kuhn                      No. 02-1031

contemplates its application in the event of “a discharge,”          instruct that “[t]he offense level adjustments from more than
meaning a single discharge as does section 2Q1.3(b)(4). The          one specific offense characteristic within an offense guideline
district court also was able to address its concerns by granting     are cumulative (added together) unless the guideline specifies
the two guided departures and by declining to apply a six-           that only the greater (or greatest) is to be used.” U.S.S.G.
level enhancement applicable to discharges that were                 § 1B1.1, comment. (n.4); see also United States v. Perkins, 89
“ongoing, continuous, or repetitive.” U.S.S.G.                       F.3d 303, 308 (6th Cir. 1996).
§ 2Q1.3(b)(1)(A). The sentencing guidelines more than
adequately take into account the frequency of the discharges            The application of both specific offense characteristics is
and the threat of environmental harm posed by Kuhn’s                 either double counting or it is not. The district court cannot
crimes.      The district court’s comment that it had                first apply both specific offense characteristics and then
“considerable thoughts and doubt about whether the sentence,         revisit its decision when deciding whether to grant a
a custodial sentence, of 21 months to 27 months serves the           downward departure. If the Sentencing Commission believed
ends of justice in this case,” indicates a “dissatisfaction with     the application of both constituted double counting, it would
the available sentencing range or a preference for a different       have added an application note, as contemplated in § 1B1.1.
sentence than that authorized by the guidelines,” which we           Without such an application note, it seems that the Sentencing
noted in Rapanos “is not an appropriate basis for a sentence         Commission has already taken the application of both specific
outside the applicable guideline range.” 235 F.3d at 260             offense characteristics into account when it designed the
(quoting the commentary to § 5K2.0).                                 guidelines. “A district court abuses its discretion when it
                                                                     takes into account a factor already considered by the
   The district court also reasoned that the application of both     Commission in the guidelines.” Rapanos, 235 F.3d at 259.
enhancements placed undue weight on the offense                      The district court did not provide any indication of facts that
characteristics because “[a]ll discharges or emissions of a          would place Kuhn’s case outside the “heartland” of
pollutant, in the context of a violation of the applicable           environmental crimes involving one or two discharges. Any
statutory section in this case, necessarily must be                  concerns with the fairness of whether one would always
accomplished in violation of or absent a permit.” However,           qualify for an enhancement pursuant to § 2Q1.3(b)(4) if one
when it applied both specific offense characteristics, the           qualified for an enhancement pursuant to § 2Q1.3(b)(1)(B)
district court noted that the sentencing guidelines will contain     are best addressed to Congress.
an application note to direct the court when it should not
apply both of two overlapping specific offense characteristics.         The district court abused its discretion in departing
The court stated that while it believed one could not violate        downward on this basis.
§ 2Q1.3(b)(1)(B) without violating § 2Q1.3(b)(4), “that’s how
the sentencing guidelines are constituted.” It then stated that        3.    Departure based on Kuhn’s motivation and purpose
“in this particular case . . . applying offense characteristics in
B1B [sic] and also in subparagraph (4) does not constitute              The district court offered as a further reason for granting a
double counting.”                                                    downward departure Kuhn’s motivation and purpose. It
                                                                     stated that given his background, length of service in the area
  Section 2Q1.3(b)(1)(B) and section 2Q1.3(b)(4) are two             of public waste management, and other factors such as his
distinct offense level adjustments within an offense guideline       community involvement and “exemplary personal record of
and are intended to be applied cumulatively. The guidelines          achievements in the community,” it found “credible the
No. 02-1031                       United States v. Kuhn     17

defendant’s professed motive that the efficient, pollution-free
operation of the Bay City Wastewater Treatment Plant was
his ultimate goal.” The court concluded that because of this
pure motive, Kuhn’s case fell outside of the “heartland” of
pollution offenses.
  First, we note that the district court erred by not giving
notice to the government that it intended to depart on this
basis. Second, we are unable to find any authorization in the
guidelines for a downward departure based on a defendant’s
good motive for committing a crime. We reserve judgment
on whether some permissible ground may be found that
would incorporate this reason. In any event, the government
should have been afforded the opportunity to present its
arguments to the district court. The district court must give
the government the proper notice of any intended basis for
departure, should it choose to do so again.
  4.   Conclusion
  Therefore, we VACATE Kuhn’s sentence and REMAND
to the district court for resentencing.
