# Amicus Curiae Brief — Pozsgai v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 812

## Text

Pw > .
oN iL Be
ou £. SPAMIGL, JR

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

No. 89-1735

JOHN POZSGAI,
Petitioner,
V.
THE UNITED STATES OF AMERICA,

Respondent.

On Petition For A Writ of Certiorari
To The United States Court of Appeals
for The Third Circuit

BRIEF OF
SOUTHEASTERN LEGAL FOUNDATION, INC.
AS AMICUS CURIAE IN SUPPORT OF PETITIONER

Robert L. Barr, Jr.*
G. Stephen Parker
Robert B. Baker, Jr.

Southeastern Legal Foundation, Inc.
2900 Chamblee-Tucker Road, Building 4
Atlanta, Georgia 30341
(404) 458-8313

Attorneys for Amicus Curiae
Southeastern Legal Foundation, Inc.

July, 1990 * Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES il
INTEREST OF AMICUS l
STATEMENT OF CASE 2
SUMMARY OF ARGUMENT 3
ARGUMENT
I. The History of The Guidelines. 4
Il. The Guidelines Prescribe The 6

Maximum Statutory Sentence for

Certain Categories of Environmental

Violations.

A. By Prescribing The Statutory 8

Maximum, The Guidelines Violate

Their Enabling Statute.

B. The Specific Offense Characteristics 11

Bear Little Relation To Policy Choices

Made In The Underlying Statutes.
III. Certiorari Should Be Granted - 12

CONCLUSION 13

(i)

TABLE OF AUTHORITIES
Cases:

Chesapeake Bay Foundation vy. Gwaltney of
Smithfield,791 F.2d 304 (4th Cir. 1986), rev'd
108 S.Ct. 376 (1987)

McMillan vy. Pennsylvania, 477 U.S. 79 (1986)
McNabb y. U.S., 318 U.S. 332 (1943)

Mistretta v. U.S., ____ U.S. __, 109 S.Ct. 647
(1989)

U.S. v. Anderson, 895 F.2d 641 (9th Cir. 1990)
U.S. v. Mills, No. 88-03100-01/WEA (N.D.
Fla. 1989), aff'd without opinion, (11th Cir.
No. 89-3325, May 15, 1990)

U.S. v. SCM Corp., 667 F.Supp. 1110 (D.-Md.
1987)

U.S. v.T & S Brass, Inc., 681 F.Supp. 314
(D.S.C. 1988)

Constitution, statutes, and regulations:
U.S. Const., Art. 1, Section 1

7 U.S.C. Section 1361(b)

15 U.S.C. Section 2615(b)

18 U.S.C. Section 3559(b)
(ii)

Page

9,10

12

12

10

18 U.S.C. Section 3553(b) 4

28 U.S.C. Section 991 (a) 4
28 U.S.C. Section 994(b)(1) 9
28 U.S.C. Section 994(b)(2) 9
28 U.S.C. Section 994(j) 10
33 U.S.C. Section 1319(c)(1) 6
33 U.S.C. Section 1319 (c)(2) 7

33 U.S.C. Section 1362(6)

42 U.S.C. Section 6928(d) 10

U.S. Sentencing Guidelines:

Section 5E1.2 8, 12

Section 5SG1.1 8

Section 5G1.2 12
| Section 2J1.3 11

Section 2Q1.2 6, 11

Section 2Q1.3 8, 11,13

Miscellaneous:

C. Ogletree, Jr., “The Death of Discretion? 4

Reflections on the Federal Sentencing
Guidelines,” 101 Harvard L. Rev. 1938 (1988)

(iii)

1
IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

No. 89-1735
JOHN POZSGAI,
Petitioner,
v.
THE UNITED STATES OF AMERICA,
Respondent.

On Writ of Certiorari
To The United States Court of Appeals
for The Third Circuit

BRIEF OF
SOUTHEASTERN LEGAL FOUNDATION, INC.
AS AMICUS CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICUS

The Southeastern Legal Foundation, Inc. (hereafter
“Southeastern’”’) submits its brief amicus curiae in this case.
The parties have consented to the filing of this brief, and their
consent letters have been filed with the Clerk of this Court.

Southeastern is a non-profit corporation organized in
1976 for the purpose of advancing public interest view-
points in adversarial proceedings involving significant
issues. Dedicated to economic and social progress through
the equitable administration of law, Southeastern presents

2

the views of its supporters who believe the rights of all per-
sons should be properly protected and balanced in the courts.
Towards that end, Southeastern has participated as amicus
curiae in a number of cases before this Court, including
Common Cause v. Schmitt, 455 U.S. 129 (1982); Federal
Energy Regulatory Commission v. Mississippi, 456 U.S. 742
(1982); South Florida Chapter of the AGC of America, Inc.
v. Metropolitan Dade County, Florida, 723 F.2d 846 (11th
Cir. 1984), cert. denied 469 U.S. 871 (1984); Aetna Life
Insurance Co. v. Lavoie, 475 U.S. 813 (1986); and City of
Richmond y. JA. Croson Co., ___ U.S. __, 109 S.Ct. 706
(1989). Additionally, Southeastern has recently submitted
amicus curiae briefs in Astroline Communications Company
Limited Partnership v. Shurberg Broadcasting of Hartford,
Inc., No. 89-700 (decided June 27, 1990); U.S. v. Eichman
and U.S. v. Haggerty, Nos. 89-1433, 89-1434 (decided June
11, 1990); and Pacific Mutual Life Insurance Company v.
Haslip, et al,, No. 89-1279, which is currently pending
before this Court.

Southeastern believes this case merits review by this
Court because it presents serious questions of how individual
rights can be protected from governmental excesses in the
enforcement of laws for the ostensible protection of the envi-
ronment and the administration of justice by the lower feder-
. al courts. It is vitally important for the courts to protect these
individual freedoms in the face of the increased criminal
enforeement of the myriad of environmental laws, both cur-
rent and future. While Amicus supports all four of the ques-
tions presented by Petitioner, this brief will focus on question
III, dealing with the validity of the Sentencing Guidelines.

STATEMENT OF THE CASE

Southeastern adopts the statement of the case contained
in Petitioner Pozsgai’s Petition for A Writ of Certiorari.

3
SUMMARY OF ARGUMENT

The 27-month sentence Petitioner Pozsgai received
under the Sentencing Guidelines for violating the Clean
Water Act highlights some of the problems contained in
the Sentencing Guidelines for environmental offenses.
One of the most significant problems with the environ-
mental guidelines is that they result in sentences which
exceed the maximum sentence permitted by the underly-
ing environmental statute. This not only alters or
reverses the Congressional determination of the serious-
ness of the category of offense, but impermissibly
reduces the range of sentences required by the
Comprehensive Crime Control Act to a single term of
imprisonment — the statutory maximum.

Furthermore, the Guidelines fail to contemplate sen-
tences other than imprisonment for first offenders of
environmental laws. The Guidelines both violate the
Sentencing Commission’s enabling statute and conflict
with the underlying environmental laws.

Due to the importance of the issues raised by the trial
court’s application of the Sentencing Guidelines, this
Court should grant certiorari to review this conviction
under the Court’s supervisory powers over the adminis-
tration of criminal justice in the lower federal courts.

4
ARGUMENT!

I. The History of The Guidelines.

Beginning in the 1970s, Congress considered sever-
al pieces of legislation designed to improve federal sen-
tencing practices. See generally, C. Ogletree, Jr., “The
Death of Discretion? Reflections on the Federal
Sentencing Guidelines,” 101 Harvard L. Rev. 1938, 1944,
n. 34 (1989). The most frequent criticism of the existing
sentencing practice was that it gave excessively broad dis-
cretion to sentencing judges, resulting in widely disparate
treatment for similarly situated individuals. /d.

In 1984, Congress enacted the Comprehensive
Crime Control Act, which established the United States
Sentencing Commission as “an independent commission
in the judicial branch.” 28 U.S.C. Section 991(a). The
Commission was tasked with drafting sentencing guide-
lines that would result in more definitive sentences and
narrow the disparity in sentences imposed on similarly
situated offenders for comparable criminal conduct. 28
U.S.C. Section 991(b)(1)(B). However, the Sentencing
Commission was expected to leave federal judges with
sufficient flexibility to impose individualized sentences
warranted by mitigating or aggravating factors not taken
_ into consideration in the general sentencing guidelines.
18 U.S.C. Section 3553(b).

Following its creation, the Sentencing Commission
conducted extensive public hearings and a research pro-

| Many of the arguments presented in Amicus’ brief are drawn
directly from Benjamin S. Sharp and Leonard H. Shen’s paper, “The
(Mis) Application of The Sentencing Guidelines To Environmental
Crimes,’ which was presented at the ALI-ABA Course of Study
Criminal Enforcement of Environment Laws seminar on April 19-
20, 1990 in Washington, D.C. Messrs. Sharp and Shen are attorneys
with the Washington, D.C. law firm of Perkins Coie.

5

gram analyzing approximately 100,00C federal criminal
cases. After receiving considerable public comment on
a preliminary draft of the guidelines issued in September
_1986, a revised draft was submitted for public comment
in January 1987 and became final on November 1, 1987.

Insofar as relatively few environmental crimes had
reached actual sentencing before the final Guidelines
were released in 1987, the guidelines that deal with
environmental crimes did not have as extensive an
“experience baseline” to guide the drafters, as did all
other guidelines. As a consequence, the Commission
appears to have ignored existing historical sentencing
data in this area and filled the experience void with its
own arbitrary choices. The policy decisions ultimately
made by the Commission seem unconstrained by con-
gressional directives and at odds with policy choices
made by Congress when it enacted the substantive envi-
ronmental statutes. ;

Indeed, the paucity of environmental prosecutions
and the relatively lenient sentences imposed before the
Guidelines were promulgated (See Petition for Cert.
Appendix 30A-39a) underscore the regulatory nature of
these environmental infractions. Unlike crimes such as
bank robbery, arson, and rape, the government is able to
control, correct, and civilly punish environmental infrac-
tions. Consequently, even the sentencing data that does
exist On environmental criminal cases is, in effect, not
truly representative of how society deals with this
“crime,” because the same conduct, and sometimes even
worse conduct, is disposed of outside the criminal jus-
tice system.

6

Il. The Guidelines Prescribe The
Maximum Statutory Sentence For
Certain Categories of Environmental
Violations.

Several categories of environmental crimes are mis-
demeanors. All Toxic Substances Control Act (TSCA)
criminal violations are misdemeanors, with a maximum
imprisonment term of one year and a maximum fine of
$25,000 per day of violation. 15 U.S.C. Section
2615(b). Most Federal Insecticide, Fungicide and
Rodenticide Act (FIFRA) violations are similarly pun-
ishable by up to one year imprisonment, although a pri-
vate applicator may only be imprisoned for up to 30
days. 7 U.S.C. Section 1361(b). Clean Water Act
(CWA) negligent violations also trigger a one-year
imprisonment maximum. 33 U.S.C. Section 1319(c)(1).?

Yet because the Guidelines fail to distinguish between
misdemeanors and felonies, the statutory maximum terms
may often be exceeded by a sentence calculated under the
Guidelines. For example, the shortest Guideline sentence
available for a base level offense violation of FIFRA by a
private pesticide applicator (base level 8) is from 2 to 8
months, which is from two to eight times the statutory
maximum (30 days). See Section 2Q1.2.

A violation of the Clean Water Act has been trans-
formed by application of the Guidelines into a much more

2 The Application Notes accompanying Section 2Q1.2 (Note 4) and
Section 2Q1.3 (Note 3) indicate that downward departures may be
appropriate for negligent violations. No guidance is provided sug-
gesting how great a departure may be warranted or whether whole-
sale abandonment of the guidelines for misdemeanors is appropriate.
Some courts have likened the notes to legislative history that cannot
override the guideline or be resorted to unless there is facial ambigu-
ity in the guideline. See, e.g., U.S. v. Anderson, 895 F.2d 641, 645
(9th Cir. 1990).

7

serious transgression than the statute itself would suggest.
The CWA sets a statutory maximum of three years impris-
onment for so-called “knowing” violations (one year for
negligence) that do not rise to the level of a “knowing
endangerment.” 33 U.S.C. Section 1319(c)(2).

Despite this statutory maximum, however, the
Guidelines’ choice of specific offense characteristics
will in virtually all cases assure a minimum offense
level of 14 to 18 for any CWA violation, including those
involving a non-hazardous pollutant such as fill dirt,
which happened in this particular case with Mr. Pozsgai.
This would result in a sentence just within the statutory
maximum range for a felony and well above the maxi-
mum for a misdemeanor, for a defendant with no prior
criminal history, and a sentence above the statutory
maximum for defendants with any prior history.

For example, specific offense characteristic (b)(4)
requires a four-level increase for discharges without a per-
mit or in violation of a permit (in the case of non-hazardous
water pollutants), or for disposal without a permit or in vio-
lation of a permit (in the case of hazardous water pollu-
tants). Since virtually all violations of the CWA involve
discharge in violation of or without a permit, this will auto-
matically result in an effective base level of 10 (6 + 4).

Next, characteristic (b)(1) requires a four-level
increase for any discharge of a pollutant, which by defi-
nition will always be the case whenever there has been a
discharge in violation of a permit.> (If the discharge is
ongoing, continuous, or repetitive, again the likely sce-
nario for CWA violations, there will be a six- level

3 Although the Guidelines do not define pollutant, the CWA does.
A pollutant includes “dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical waste, biologi-
cal materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt and industrial, municipal, and agri-
cultural waste discharged into water.” 33 U.S.C. Section 1362 (6).

8

increase.) Finally, many discharges into publicly owned
treatment works (POTWs) would qualify as “disruption
of a public utility,” requiring an additional four points.

Therefore, the total offense level for virtually any
Clean Water Act violation is at least 14, and in a sub-
stantial portion of CWA cases, closer to 18 or 20 —
right at the statutory maximum level. Thus, for exam-
ple, the court in United States v. Ocie Mills and Carey
Mills, No. 88-03100-01/WEA (N.D. Fla. 1989), aff'd
without opinion (11th Cir. No. 89-3325, May 15, 1990),
sentenced the defendants each to 21 months in prison
for filling a 75 * x 300’ wetlands area with dirt, invoking
the “ongoing or repetitive release” characteristic of
Section 2Q1.3(b)(1) and the “discharge without a per-
mit” characteristic of Section 2Q1.3(b)(4).

In Mr. Pozsgai’s case he was charged with discharging
earth and clean fill without a permit in violation of the
Clean Water Act, 33 U.S.C. Sections 1311(a),
1319(c)(2)(A), 1344(a). He received six points, which
was the base offense level, for discharging a pollutant
without a permit. Section 2Q1.3(a). In addition to the base
offense points, he received six more points for discharging
a pollutant (Section 2Q1.3(b)(1)(A)), and four more points
for not having the permit (Section 2Q1.3(b)(4)).

A. By Prescribing The Statutory
Maximum, The Guidelines Violate Their
Enabling Statute.

The Guidelines do provide that where the guidelines
sentence would exceed the statutory maximum, the statuto-
ry maximum controls. See 18 U.S.C. Section 3559(b);
Section 5G1.1 (statutory maximum governs as to an impris-
onment term); see also Section 5E1.2(c)(4) (statutory fine
if based on a per day violation will govern instead of the

9

Guidelines fine). It is, of course, clear that an independent
agency cannot lawfully preempt the Congressional judg-
ment in the original substantive statute by prescribing a reg-
ulatory sentence more severe than the appropriate maxi-
mium sentence for particular environmental violations.

However, the Guidelines effect an analogous result
of questionable validity. The Sentencing Commission
has compressed the range of sentences available, turning
the penalty into a mandatory minimum (and maximum)
for many types of crimes. Although there is no per se
constitutional defect in statutes providing mandatory
minimum sentences — see, e.g., McMillian v.
Pennsylvania, 477 U.S. 79, 92, 106 S.Ct. 2411 (1986) —
by establishing what amounts to a flat sentence, the
Guidelines here violate the Comprehensive Crime
Control Act itself, which requires that the Commission
establish a sentencing range for each category of
defense. See, 28 U.S.C. Section 994(b)(1); see also,
Mistretta v. U.S., ___ U.S. ___, 109 S.Ct. 647, 656
(1989). Furthermore, for sentencing involving imprison-
ment, Congress mandated that “the maximum of the
range established for such a term shall not exceed the
minimum of that range by more than the greater of 25
percent or six months.” 28 U.S.C. Section 994(b)(2).
Where the Guidelines result in a minimum sentence of
one year for misdemeanors, or a sentencing range for
felonies where the minimum is less than 25 percent
below the maximum, it is clear that the Guidelines are
inconsistent with their enabling legislation.

This result also violates Congress’ mandate that “the
Commission shall insure that the guidelines reflect the
general inappropriateness of imposing a sentence to a
term of imprisonment in cases in which the defendant is
a first offender who has not been convicted of a crime of
violence or an otherwise serious offense.” 28 U.S.C.

10

Section 994(j). Insofar as very few of the misdemeanor
violations of TSCA or FIFRA, or a negligent violation
of the CWA, can be considered a “crime of violence or
an otherwise serious offense,” the imposition of not only
a sentence of imprisonment, but the maximum available
sentence, clearly violates the leniency Congress intend-
ed and required for a first offender. /d.

Finally, as a policy matter it is troubling that whole
categories of environmental crimes have suddenly been
transformed into mandatory minimum violations by a
Commission that was not charged by Congress to rewrite
priorities in environmental enforcement. Apart from tend-
ing to transform a statutory maximum into a sentencing
minimum, the fact that the specific offense characteristics
are virtually always triggered in the Clean Water Act con-
text, for example, means that a CWA violation will per se
be treated much more seriously than another environmen-
tal violation — even if Congress assigns a lower statutory
maximum to the CWA than, for example, many RCRA
permit violations. Compare 33 U.S.C. Section 1319(c)
with 42 U.S.C. Section 6928(d).

Indeed, this uniform aggravation of sentencing for
Clean Water Act violations disrupts the carefully crafted
hierarchy of criminal penalties (with different terms for
’ negligent, knowing, and knowing endangerment crimes)
established by Congress’ 1987 CWA amendments. A
specific and substantive statutory scheme — the CWA
— setting forth explicit offenses and sentencing ranges,
cannot constitutionally be overridden by a general statu-
tory framework intended by Congress to set overall sen-
tencing parameters. In this instance, the Guidelines, and
the Sentencing Commission, have become the tail wag-
ging the environmental dog. This violates principles of
separation of powers. U.S. Const., Art. I, Sec. 1; see
Mistretta v. U.S., supra.

11

B. The Specific Offense Characteristics
Bear Little Relation To Policy Choices
Made In The Underlying Statutes.

Most guidelines in other areas cover specific crimes
(e.g., perjury) and use the offense characteristics to differ-
entiate common circumstances surrounding the crime
(e.g., Causing physical injury to a person or resulting in
substantial interference with the administration of justice)
as aggravating or mitigating factors. See, Section 2J1.3.
By contrast, the environmental guidelines attempt to
encompass an extensive range of offenses under two
guidelines that cannot reasonably be tailored to the diver-
sity of crimes to which they apply. The offense character-
istics and their Application Notes cannot apply the myriad
factual circumstances that may aggravate or mitigate so
many offenses. As a consequence, neither the base levels
nor the offense characteristics are common to the bulk of
the offenses covered. Moreover, the specific offense char-
acteristics used as adjustment factors fail to follow the
logic of the underlying environmental statutes.

In the case of single as opposed to repetitive releas-
es, both Section 2Q1.2 and Section 2Q1.3 provide for
increasing the base offense level by six levels “[i]f the
offense resulted in an ongoing, continuous, or repetitive
discharge of a. . . pollutant into the environment,” while
the base offense level may only be increased by four
levels “if the offense otherwise involved a discharge,
release, or emission of a pollutant.” Section 2Q1.2(b)
(1); Section 2Q1.3(b)(1).

While it may make good policy sense to impose a
greater sentence where a continuous or repetitive envi-
ronmental discharge is occurring, this guideline ignores
the fact that the substantive environmental statutes
passed by Congress already provide for separate counts

12

for such discharges, and the criminal fine provisions of
both the statutes and the guidelines already allow per-
day fines. Section 5E1.2(c); Cf. Chesapeake Bay
Foundation v. Gwaltney of Smithfied, 791 F.2d 304, 316
(4th Cir. 1986) (assessing protracted Clean Water Act
civil violations at approximately $5,000 per day), rev'd
on other grounds, 108 S.Ct. 376 (1987); U.S. v.T & §
Brass, Inc., 681 F.Supp. 314, 322 (D.S.C. 1988) (impos-
ing $1,000 per day for RCRA civil violation); and U.S.
v. SCM Corp., 667 F.Supp. 1110, 1128 (D.Md. 1987)
(assessing sequential Clean Air Act violations at
$10,000 per day).

The underlying statutes are thus already finely tuned
to increase the ultimate penalty in accordance with the
continuous or repetitive nature of the discharge; yet the
Guidelines now double count a multiple discharge viola-
tion, by increasing the offense level for each individual
violation as well as allowing sentencing for multiple
counts. See, Section 5G1.2. Insofar as many Clean Air
Act and Clean Water Act discharge violations involve
dozens or even hundreds of days of effluent or air emis-
sion releases, increase of the penalty will be applicable
in the vast majority of circumstances under the
Guidelines — despite the fact that Congress, when it
established the availability of per-day violation fines in
the environmental laws, had already considered and
allowed charging for repetitive violations.

III. Certiorari Should Be Granted.

Amicus submits that the circumstances of this case
present important and unanswered questions as to the
application of the Sentencing Guidelines to a conviction
such as Petitioner’s, and to environmental crimes gener-
ally. Moreover, there is a serious question as to whether

13

the U.S. Sentencing Commission followed the congres-
sional mandate in enacting Section 2Q1.3 of the
Guidelines.

This Court has jurisdiction sub judice for the same
fundamental reason set forth in McNabb v. U.S., 318
U.S. 332, 63 S.Ct. 608, 613 (1943). “Judicial supervisior
of the administration of criminal justice in the federal
courts implies the duty of establishing and maintaining
civilized standards of procedure and evidence.” /d. Due to
the harshness of the sentences imposed on Petitioner, and
because of the questions as to the legality and appropri-
ateness of the Guidelines for environmental law crimes,
this Court should grant review.

CONCLUSION

This Court should grant Petitioner Pozsgai’s petition
for certiorari.

Respectfully submitted,

Robert L. Barr, Jr.*
G. Stephen Parker
Robert B. Baker, Jr.

Attorneys for Amicus Curiae

Southeastern Legal Foundation, Inc.
2900 Chamblee-Tucker Road
Building 4
Atlanta, Georgia 30341
(404) 458-8313

July 1990 Counsel of Record*

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1485%3A6. Public record. Not legal advice.