                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-18-2006

USA v. Abrogar
Precedential or Non-Precedential: Precedential

Docket No. 06-1215




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                   PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT

                   Case No: 06-1215

         UNITED STATES OF AMERICA

                           v.

                NOEL ABROGAR,

                          Appellant



   On Appeal from the United States District Court
              for the District of New Jersey
             District Court No. 05-cr-00649
  District Judge: The Honorable Joseph H. Rodriguez



                Argued July 11, 2006

Before: SMITH, ALDISERT, and ROTH, Circuit Judges


              (Filed: August 18, 2006)



        Counsel:      Carl R. Woodward, III (Argued)
                      Kenneth L. Winters
                      Carella, Byrne, Bain, Gilfillan,
                      Cecchi, Stewart & Olstein
                      5 Becker Farm Road
                      Roseland, New Jersey 07068
                      Counsel for Appellant

                      Michael T. Gray (Argued)
                      Sue Ellen Wooldridge
                             John Smeltzer
                             Joseph Poux
                             Department of Justice
                             P.O. Box 23795 (L’Enfant Plaza
                             Station)
                             Washington, D.C. 20026-3795
                             Counsel for Appellee



                   OPINION OF THE COURT


SMITH, Circuit Judge.
        Appellant Noel Abrogar pleaded guilty to a one-count
Information charging him with failing to keep an accurate “oil
record book” in violation of 33 U.S.C. § 1908(a), part of the
legislation implementing an international anti-pollution treaty to
which the United States is a signatory. On appeal, Abrogar
challenges the District Court’s application of a six-level sentencing
enhancement pursuant to § 2Q1.3 of the United States Sentencing
Guidelines (the “Guidelines”), arguing in relevant part that under
the text of § 2Q1.3 and other applicable Guidelines provisions, his
offense did not “result[] in” the repeated discharges of oily waste
upon which the sentencing enhancement was based. We agree.
Accordingly, we will vacate Abrogar’s sentence and remand the
case to the District Court for resentencing.1
                                 I.
                                 A.
       Pollution discharges from ships are regulated by both U.S.
and international law. The Act to Prevent Pollution from Ships
(“APPS”), 33 U.S.C. § 1901 et seq., implements two related

  1
   Abrogar also argues that the proper definition of “environment”
in § 2Q1.3 excludes the discharges at issue here, and that, in any
event, foreign conduct may not be considered in sentencing under
the Guidelines. Because our reading of the “resulted in” language
of § 2Q1.3, without more, dictates that we remand the case for
resentencing, we need not reach these issues.
                                 2
treaties to which the United States is a signatory. The first is the
1973 International Convention for the Prevention of Pollution from
Ships, referred to as the MARPOL Protocol. The second is the
Protocol of 1978 Relating to the International Convention for the
Prevention of Pollution from Ships. Together, the two treaties are
generally referred to as MARPOL 73/78 (“MARPOL”), and more
than 95% of the world’s shipping tonnage is transported under the
flags of signatories to these treaties.
       Annex I to MARPOL sets forth regulations for the
prevention of pollution by oil from ships. APPS authorizes the
U.S. Coast Guard to issue regulations implementing the
requirements of these two treaties. 33 U.S.C. § § 1903 and 1907.
The Coast Guard has issued such regulations incorporating
MARPOL requirements. See 33 C.F.R. § 151.01 et seq.
       Annex I sets out, inter alia, the international standards for
the maximum amount of oil permitted to be discharged from ships.
MARPOL also requires ships to have and maintain several pieces
of equipment intended to work together to measure the oil content
of various waste and bilge discharges from ships and to divert
discharges containing too much oil to storage tanks rather than
allowing them to be discharged from the ship into the ocean.
        In addition to prohibitions on oily waste discharges, the
treaties require each oil tanker over a given weight to maintain a
record known as an oil record book. MARPOL Annex I, Reg.
20(1). The oil record book must include records for (1) all
transfers of oil; (2) management and disposal of oily wastes
generated on board the vessel, including any discharges of dirty
ballast or cleaning water from fuel oil tanks; and (3) the disposal of
oily residues such as sludge, as well as discharges of bilge waste
that has accumulated in machinery spaces. Id. at Reg. 20(2).
Accidental or emergency discharges of oil or oily waste greater
than 15 or 100 parts per million (“ppm”) must also be recorded.
These entries in the oil record book must be signed by the person
in charge of the operation (in this case, Abrogar). Id. at Reg. 20(3).
The oil record book must be maintained on board for not less than
three years and must be kept on board the vessel and readily
available at all reasonable times. Id.
        The Coast Guard has the authority to board and examine the
oil record book of any vessel while that vessel is in U.S. waters or

                                  3
at a U.S. port. 33 U.S.C. § 1904(c); 33 C.F.R. § 151.23(a)(3) and
(c). The U.S. is a party to the international regime embodied in
MARPOL and other treaties that require the country in which a
ship is registered, known as the “flag state,” to certify a ship’s
compliance with international standards. “Port states,” such as the
U.S. in this instance, conduct inspections to ensure compliance in
their ports and waters. In conducting inspections, the Coast Guard
typically relies on a ship’s oil record book and statements of the
crew to determine whether the crew is properly handling oil-
contaminated water and its disposal. Failure of a ship to comply
with MARPOL requirements can form the basis for U.S. action to
refuse to allow that ship to enter port, to prohibit the ship from
leaving port without remedial action, to refer the matter to the flag
state of the vessel, or where appropriate, to prosecute the violation
in the United States. See 33 U.S.C. § 1908.
                                 B.
      Noel Abrogar is a citizen of the Philippines and served as
the Chief Engineer on the Motor Vessel Magellan Phoenix (the
“Magellan”), a Panamanian-flagged ship managed by a Japanese
company with corporate headquarters in Tokyo, Japan. Abrogar’s
term of service as Chief Engineer began when he boarded the
Magellan on or about December 23, 2004, in Rotterdam. He was
responsible for supervising the other engineers and oilers who
worked in the engine room and for maintaining the ship’s oil record
book.
       On March 25, 2005, Coast Guard inspectors conducted a
port-control inspection of the Magellan to determine, inter alia,
compliance with MARPOL requirements. In the course of their
inspection and subsequent investigation, inspectors discovered that
shortly after departing Rotterdam in December of 2004, Abrogar
learned that a crew member intended to execute an improper
discharge of bilge waste into the ocean. Abrogar did nothing to
prevent the discharge. Prior to the ship’s arrival in Panama on
January 4, 2005, Abrogar made an entry in the oil record book
indicating that the bilge waste and oily water from the improper
discharge (and perhaps other, earlier improper discharges) had been
incinerated.
      The inspectors also learned that at least four other times,
Magellan crew members under Abrogar’s command – and with his

                                 4
knowledge – discharged oil sludge and other oil-contaminated
waste into the ocean. Abrogar himself issued the order to
discharge on at least one of these occasions. He continued to
knowingly make false entries in the oil record book and
intentionally failed to record the improper discharges in an attempt
to conceal those discharges. During the inspection and subsequent
Coast Guard investigation, Abrogar lied to inspectors and denied
knowing about any illegal discharges. He maintained that his
recordings in the oil record book were accurate.
        Abrogar eventually admitted to his knowledge of the
improper discharges, his ordering of one such discharge, and his
falsification of the oil record book. On September 7, 2005,
Abrogar pled guilty to a one-count Information charging him with
failing to maintain an accurate oil record book as required by 33
C.F.R. § 151.25, in violation of 33 U.S.C. § 1908(a).
        The Pre-Sentence Report correctly stated that the applicable
Guidelines section in the case is § 2Q1.3, which provides for a base
offense level of six. The report also recommended a six-level
enhancement pursuant to § 2Q1.3(b)(1)(A) (“Specific Offense
Characteristics”), which provides for such an enhancement if “the
offense resulted in an ongoing, continuous, or repetitive discharge,
release, or emission of a pollutant into the environment.” Although
the District Court noted the tension between a “jurisdictional
question and . . . what appears to be the broad sweep of the relevant
conduct factors,” the Court accepted the recommendation for the
six-level enhancement and, owing to the enhancement as well as
other sentencing factors, sentenced Abrogar to 12 months and one
day of imprisonment followed by three years of supervised release.
Abrogar timely appealed, specifically challenging the six-level
increase under § 2Q1.3(b)(1)(A) as an “incorrect application of the
sentencing guidelines” under 18 U.S.C. § 3742(a)(2). We granted
Abrogar’s motion to expedite the appeal and now address the
District Court’s application of the sentencing enhancement.
                                 C.
       The District Court had original jurisdiction pursuant to 18
U.S.C. § 3231. We exercise appellate review under 28 U.S.C. §
1291 and 18 U.S.C. § 3742(a)(2), granting U.S. courts of appeals
jurisdiction to review sentences “imposed as a result of an incorrect
application of the sentencing guidelines.” 18 U.S.C. § 3742(a)(2).

                                 5
We review the District Court’s interpretation of the Guidelines de
novo.2 United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir.
2005) (quoting United States v. Booker, 543 U.S. 220, 259 (2005)).
                                 II.
                                 A.
        The Government’s primary argument in favor of the
sentencing enhancement is textual in nature and runs essentially
thus: the repeated discharges directed and knowingly allowed by
Abrogar are “relevant conduct” vis-a-vis his offense of failure to
maintain an accurate oil record book. Under the text of the
Guidelines, the definition of “offense” includes the “offense of
conviction” and all “relevant conduct.” As such, Abrogar’s
“offense” as defined by the Guidelines “resulted in” repeated
discharges of a pollutant, and the District Court properly applied
the six-level sentencing enhancement.
       We begin our analysis with the text of the relevant
provisions of the Guidelines. As mentioned above, the six-level
sentence enhancement adopted by the District Court was proper
under § 2Q1.3 of the Guidelines only if Abrogar’s “offense
resulted in an ongoing, continuous, or repetitive discharge, release,
or emission of a pollutant into the environment.” Id. Section 1B1.1
of the Guidelines defines one’s “offense” as “the offense of
conviction and all relevant conduct under § 1B1.3 (Relevant
Conduct).” U.S.S.G. § 1B1.1, application note 1(H). The parties
here have referred to § 1B1.3(a)(1), which defines “relevant
conduct” as “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by
the defendant; and . . . that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for that


   2
    This Court has held that even under the post-Booker advisory
Guidelines regime, district courts must accurately “consider,
among other things, ‘the Guidelines’ sentencing range established
for . . . the applicable category of offense committed by the
applicable category of defendant.’” United States v. Pojilenko, 416
F.3d 243, 246 (3d Cir. 2005) (quoting United States v. Booker, 543
U.S. 220, 259 (2005)).
                                 6
offense.” U.S.S.G. § 1B1.3(a)(1).
        In order to determine the scope of “relevant conduct” under
the Guidelines, we must first define Abrogar’s “offense of
conviction.” As Abrogar correctly points out, Congress did not
make every violation of MARPOL by every person a crime under
U.S. law. The APPS, the federal law implementing MARPOL,
restricts applicability of the substantive provision violated by
Abrogar. 33 U.S.C. § 1902, entitled “Ships subject to preventive
measures,” states as follows:
       (a) Included vessels


       This chapter shall apply –


       (1) to a ship of United States registry or nationality,
       or one operated under the authority of the United
       States, wherever located;


       (2) with respect to Annexes I and II of the
       Convention, to a ship, other than a ship referred to in
       paragraph (1), while in the navigable waters of the
       United States;


       (3) with respect to the requirements of Annex V of
       the Convention, to a ship, other than a ship referred
       to in paragraph (1), while in the navigable waters or
       the exclusive economic zone of the United States;
       and


       (4) with respect to the regulations prescribed in
       section 1905 of this title, any port or terminal in the
       United States.
33 U.S.C. § 1902(a) (emphasis added). In sum, Congress made §
1908(a)’s criminalization of MARPOL violations applicable only
to U.S. ships, wherever located, and foreign ships in three specific


                                 7
circumstances: (1) “while” the ship is within “the navigable waters
of the United States”; (2) “while” in the “exclusive economic zone
of the United States”; and (3) when at a port or terminal in the
United States.
       Pursuant to the plain text of the APPS, the Coast Guard
regulations giving rise to Abrogar’s violation contain restrictions
on their applicability that are substantially identical to those set
forth in the APPS. The substantive regulation that requires the
proper maintenance of an oil record book is 33 C.F.R. § 151.25. 33
C.F.R. § 151.09, however, is entitled “Applicability,” and it
provides:
       § § 151.09 through 151.25 apply to each ship that –
       [is operated “under the authority of the United
       States” in four specific circumstances], “or (5) Is
       operated under the authority of a country other than
       the United States while in the navigable waters of
       the United States, or while at a port or terminal
       under the jurisdiction of the United States.
Id. (emphasis added).
        We conclude, therefore, that under the APPS and
accompanying regulations, Congress and the Coast Guard created
criminal liability for foreign vessels and personnel only for those
substantive violations of MARPOL that occur in U.S. ports or
waters. Stated differently, a MARPOL violation by such a vessel
or its personnel is only an “offense” under U.S. law if that violation
occurs within the boundaries of U.S. waters or within a U.S. port.
As such, the precise nature of Abrogar’s “offense of conviction”
under the Guidelines is most accurately described as “failure to
maintain an accurate oil record book while in the navigable waters
of the United States.”
       By contrast, the Government’s argument in favor of the
enhancement assumes that the “offense of conviction” of which
Abrogar is guilty – failure to maintain an accurate oil record book
– occurred for “offense-defining” purposes not only within U.S.
waters, but during the whole of Abrogar’s tenure on the Magellan
– or at least from the moment at which he entered the first false
entry in the oil record book. At oral argument, however, the
Government conceded that to conceive of Abrogar’s offense of


                                  8
conviction in those terms would require a “broad” reading of the
APPS and relevant Coast Guard regulations. Indeed, we believe
that the reading of the relevant provisions urged by the
Government is so broad as to contravene the very meaning of those
provisions. As discussed above, the United States has no
jurisdiction to prosecute a foreign vessel or its personnel for
“failure to maintain an accurate oil record book” outside of U.S.
waters.     Furthermore, no provision of the APPS or its
accompanying regulations indicates that “failure to maintain an
accurate oil record book” by a foreign ship outside U.S. waters is
a crime.3 Stated differently, the terms of the Act and its regulations
exclude from criminal liability the “failure to maintain an accurate
oil record book” by foreign vessels outside U.S. waters.
        Assuming that the proper scope of Abrogar’s offense of
conviction is the knowing “failure to maintain an accurate oil
record book within U.S. waters,” the Government’s assertion that
“[u]nder the Sentencing Guidelines, th[e] [improper] discharges are
relevant conduct for purposes of determining the total offense
level” is incorrect. The Government acknowledged at oral
argument – and the paper record before us indicates – that none of
the improper discharges at issue occurred within U.S. waters. As
such, none of the illegal discharges “occurred during the
commission of the offense of conviction.” § 1B1.3. Nor can it
reasonably be asserted that the discharges took place “in
preparation for that offense.” Id. Nor did the discharges take place
“in the course of attempting to avoid detection or responsibility
for” maintaining a false oil record book within U.S. waters. Id. In
fact, the reverse is true. The “offense of conviction” – maintaining
a false oil record book – occurred in the course of attempting to
avoid detection of the illegal discharges. In short, the improper
discharges simply do not fit within the textual parameters of §


   3
     We find this latter point particularly significant analytically.
The APPS provisions and regulations cited above do not merely
implicate jurisdiction. They are worded in such a way as to define,
for purposes of U.S. law, the scope within which MARPOL
violations constitute crimes at all, irrespective of implications for
jurisdiction proper. As such, the provisions and regulations speak
substantively to what can be called an “offense” under the
Guidelines.
                                  9
1B1.3’s definition of “relevant conduct” vis-a-vis the “offense of
conviction” as properly defined.
        If the discharges are not relevant conduct, then the
Government’s argument collapses. The Government summarizes
its textual argument by asserting that because the improper
discharges “are relevant conduct, they are considered part of the
‘offense’ as that term is used in the Guidelines, and therefore the
‘offense’ resulted in the repeated discharge of oily bilge wastes and
oily sludges into the ocean.” We conclude that the converse of the
Government’s position is true: because the improper discharges are
not relevant conduct, they cannot be considered part of the
“offense” under the Guidelines, and therefore the “offense” did not
“result[] in” repeated discharges, as is required before the six-level
enhancement under § 2Q1.3 may be applied. Accordingly, we
reject the Government’s argument that the text of the APPS and the
Guidelines supports the sentencing enhancement applied by the
District Court in this case.
                                 B.
        Perhaps sensing the weakness of its textual argument under
the Guidelines, the Government also raises a policy argument in
favor of the sentencing enhancement. It argues that the structure
of § 2Q1.3 reflects a general policy of enhancing sentencing for
recordkeeping offenses to account for damage wrought by any
underlying substantive offense. The Government relies on §
2Q1.3(b)(5), which provides that “[i]f a recordkeeping offense
reflected an effort to conceal a substantive environmental offense,
use the offense level for the substantive offense.” Id.
        We find this argument unavailing for at least two reasons.
First, because criminal liability for MARPOL violations by a
foreign vessel does not attach until that vessel enters U.S. waters,
the improper discharges at issue here – all of which occurred
outside U.S. waters on this record – do not constitute “substantive
environmental offense[s]” under U.S. law any more than the failure
to maintain an accurate oil record book outside U.S. waters
constitutes a recordkeeping offense under U.S. law. Thus, the
policy contemplated by § 2Q1.3(b)(5) – seeking to punish
substantive environmental offenses under U.S. law – would not be
frustrated by vacating the enhancement as applied in this case.


                                 10
        Second, even if we were to accept the Government’s policy
argument as to § 2Q1.3 considered in isolation, any policy
concerns implicit in § 2Q1.3(b)(5) must yield to the plain meaning
of the other Guidelines and statutory provisions at issue in this
case. As discussed above, the Government’s assertion that the
improper discharges constitute “relevant conduct” fails under the
plain meaning of § 1B1.3. In addition to the general rule that plain
text trumps implicit policy concerns as a matter of statutory
construction, we must consider the fact that § 1B1.3 applies to all
of the individual substantive provisions of the Guidelines and
reflects the broader will of Congress as to a fundamental aspect of
sentencing policy – the scope and type of collateral conduct to be
included in sentencing. Furthermore, any policy concern implied
by the Guidelines must be subordinated to the scope of liability and
applicability explicitly set forth by Congress as part of the
substantive statute at issue. Here, criminal liability under 33
U.S.C. § 1908(a) is plainly limited by § 1902 and the regulations
accompanying the APPS. The Government’s policy argument is
thus unavailing.
                                III.
       In sum, we conclude that Abrogar’s “offense of conviction”
– taking into account the text of the relevant provisions of the
APPS and accompanying regulations – was the “failure to maintain
an accurate oil record book while in U.S. waters or in a U.S. port.”
Under that definition of the “offense of conviction,” the improper
discharges are not “relevant conduct,” they cannot be considered
part of the “offense” under the Guidelines, and therefore the
“offense” did not “result[] in” repeated discharges of a pollutant.
As such, the District Court erred in applying the six-level
sentencing enhancement.
      For the foregoing reasons, we will vacate Abrogar’s
sentence and remand the case to the District Court for resentencing.
