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United States v. MacDonald



MacDonald challenged the enhancement of his sentence by the district court for conspiracy to manufacture methamphetamine due to the unlawful discharge of a hazardous substance. The Ninth Circuit affirmed the enhancement of MacDonald’s sentence.

MacDonald pled guilty to the charge of conspiracy to manufacture methamphetamine. The plea agreement set a base offense level with reductions, and the Presentence Report included a recommended two-level enhancement of the sentence for the disposal of hazardous materials.[1] MacDonald objected to the two-level enhancement to his sentence. Finding that the district court did not clearly err or abuse its discretion in enhancing MacDonald’s sentence under the U.S. Sentencing Guidelines (Guidelines), the Ninth Circuit affirmed MacDonald’s sentence, including the two-level addition for unlawful discharge of a hazardous substance.

MacDonald was convicted of conspiring to manufacture methamphetamine on public land. Both the state’s witnesses and MacDonald’s witnesses indicated that hazardous wastes were poured onto the ground at the campsite where the crime occurred. MacDonald argued that the quantity of hazardous waste poured onto the ground was not sufficient to cause a toxic effect and therefore the two-level enhancement did not apply to his case.

The Ninth Circuit noted that the Guidelines require that the courts “increase the base offense level [of a defendant] by two levels ‘[i]f the offense involved (i) an unlawful discharge, emission, or release into the environment of a hazardous or toxic substance; or (ii) the unlawful transportation, treatment, storage, or disposal of a hazardous substance.'”[2] The comments accompanying the Guidelines provide that subsection 5(A) is applicable if the conduct involved in the offense was a violation covered by section 3008(d) of the Resource Conservation and Recovery Act of 1976 (RCRA)[3] or other environmental statutes. RCRA “criminalizes a range of activities related to the unlawful generation, transportation, storage, treatment, and disposal of a ‘hazardous waste’ identified or listed under RCRA”[4] and delegates to the United States Environmental Protection Agency (EPA) responsibility for identifying and listing the items considered hazardous waste. EPA has listed hazardous wastes including naptha and acetone. The Government’s expert stated that the crime involved an illegal disposal of naptha or acetone. The testimony of MacDonald’s expert related only to toxicity levels for the soil that had already been cleaned up, and therefore the Ninth Circuit stated that the testimony of MacDonald’s expert “does not undermine or contradict [the government’s expert’s] conclusion that there was a disposal of waste covered by RCRA.”[5]

MacDonald challenged the two-level addition to his sentence on the theory that the amount of waste poured onto the ground was not sufficient to cause a toxic effect. The Ninth Circuit found MacDonald’s interpretation of the statute misguided. In order to qualify as an emission of hazardous waste, a discharge need only contain a material that EPA considers to be hazardous waste or to have the characteristics of a hazardous waste–it does not matter how much of the material is contained in the discharge or whether that discharge alone could cause a toxic effect.

The Ninth Circuit reviewed the district court’s findings of fact for clear error, and reviewed the district court’s application of the enhancement provision of the Guidelines under an abuse of discretion standard. The Ninth Circuit determined that the district court did not commit clear error in holding that the enhanced sentencing guidelines applied to MacDonald because there was unlawful discharge or disposal of a hazardous substance under RCRA at two of the places where the methamphetamine was produced. The court also determined that the district court did not commit an abuse of discretion by applying the enhanced guidelines to MacDonald. Therefore the Ninth Circuit affirmed MacDonald’s enhanced sentence under RCRA.

[1] SeeU.S. Sentencing Guidelines Manual § 2D1.1(b)(5)(A) (2002) (requiring two-level enhancement for crimes involving disposal of hazardous materials).

[2] United States v. MacDonald, 339 F.3d 1080, 1081 (9th Cir. 2003) (quoting U.S. Sentencing GuidelinesManual § 2D1.1(b)(5)(A) (2002)).

[3] 42 U.S.C. §§ 6901-6992(k) (2000) (amending Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat. 992). RCRA section 3008(d) is codified at id. § 6928(d).

[4] MacDonald, 399 F.3d at 1082 (quoting 42 U.S.C. § 6903(5) (2000)) (citations omitted).

[5] Id. at 1083.

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