*1 of an or offense.” U.S.S.G. ate fictitious mortgages help concealment second 2B1.1(b)(9)(C) 8(B) § (emphasis cmt. n.' buyers qualify and fool the title and finan- added). have also held that “[t]he We cial institutions involved. require every step not Guidelines do reasons, For these district court did particularly to be defendant’s scheme so- not commit clear error in its factual find- phisticated; ... rather the enhancement err in ings application nor its deferential applies when the execution or concealment 2B1.1(b)(9)(C) § the facts this case. scheme, whole, ‘espe- viewed as a Instead, it reasonably applied two-level ” or cially especially intricate.’ complex in Mr. increase Snow’s offense level under Weiss, at 1279. 2Bl.l(b)(9)(C) by sophisti- for conduct In Mr. Snow did not under- means, cated which especially involved or merely single
take to execute conceal complex conduct in the scheme’s execution using fraudulent transaction docu- false as well concealment. See mentation but orchestrated a vast and 2Bl.l(b)(9)(C) 8(B). cmt. n. complex partici- scheme in he fraud which pated forty mortgage- in over fraudulent III. Conclusion related transactions defraud least reasons, the foregoing financial For we twelve different institutions. Evi- AFFIRM complexity dence of Mr. of this scheme is Snow’s sentences.
demonstrated, only lengths Mr. it,
Snow took to execute but actions he
took successfully conceal the scheme
from the financial institutions and title involved,
companies which included suffi-
cient sophistication the execution and
concealment of the scheme to fool trained experienced closing person- bank and ENVIRONMENTAL, COMPASS nel approving forty fraudulently- into over INC., Petitioner, loans. obtained home is abso- record lutely replete with instances of Mr. Snow successfully executing concealing OCCUPATIONAL SAFETY AND through especially scheme con- complex COMMISSION; HEALTH REVIEW duct, his providing, directing included Department Labor, Respondents. provide, others to fraudulent documenta- tion and information sufficient fool those No. 10-9541. it; reviewing disbursing, instructing disburse, others to United States of Appeals, funds below the curren- Court cy threshold; reporting pro- transaction Tenth Circuit.
curing, or instructing procure, others to Dec. 2011. cashiers’ to disguise checks the true source buyers’ payments; down providing payments, funds, down closing and debt buyers loans;
reduction for qualify
circulating, instructing to circu- his son
late, through funds his and his busi- son’s
ness detection; and bank accounts to avoid
and teaching a loan originator how to cre- *2 Hansen, M.
Jim Michael Hansen of Jim Golden, CO, P.C., for Petitioner. Stearman, Gary Attorney, K. United hose metal dispens- metal with a nozzle (M. Labor Department ing grease States Patricia was connected to the —which Labor; Smith, M. Joseph Solicitor excavator. performed He this work after *3 Woodward, by excavator, Associate Solicitor of Labor for cut generally each at the Health; Safety maintenance, and Occupational and same time other including James, Appellate refueling, Charles F. Counsel for performed. was brief), Litigation, with him on the Wash- The trench employee hand was a new D.C., ington, Respondents. joined who team one week into the project. During pro- first week of the HARTZ, McKAY, and Before ject, Compass Safety prepared Analy- Job GORSUCH, Judges. Circuit and employees ses instructed on the haz- McKAY, Judge. Circuit ards Safety identified therein. The Job Analysis specific to the operator excavator In we called to upon are re- and trench hand identified various hazards Occupational view a final order of the Safe- excavation, associated with the trench in- ty and Health Review finding Commission cluding posed by energized hazard a a safety regulation serious violation of power line that crossed over one end of the $5,500 assessing penalty against a Pe- construction to According site. the Job Compass Specifi- titioner Environmental. Safety Analysis, operator the excavator cally, Compass the Commission held that and trench were hand to be instructed to violated 29 C.F.R. fail- maintain a “20 ft. clearance between [the ing a employee to train now-deceased to (R. excavator overhead lines.” and] recognize and avoid the electrocution haz- 19533.) However, because of the trench presented high-voltage ard a overhead date, hand’s present later start he was power at his Lupton, line worksite Fort during training Job Safety In review, Colorado. Com- Analysis. Moreover, while he was given pass argues that the Commission failed to individual training, training did apply legal the correct test and erred not include instructions on the over- concluding reasonably prudent em- power head line. ployer anticipated employ- would have potential ee’s exposure power to the line. power This line crossed end one of the at maximum construction site height of
BACKGROUND 7,200-volt ground. 34 feet above the The 2006, In early Compass began construc- was being power line used to the electrical tion underground on an slurry wall at a pump at the gravel pit, surface mine’s surface mine site in Lupton, Fort Colora- thus the mine keep owner wanted to do. part project, As of this energized mobile exca- possible. as long When the vator awith 75-foot dig boom was used to digging began approach power line a trench slurry for the wall. The two-man in the middle of March excavator crew consisted the excavator informed the mine owner that the line operator hand, and a trench respon- whose would soon de-energized need sibilities included checking the trench removed so Compass could move its equip- depth, greasing excavator, and watch- into ment this area. line was still ing for problems however, with the energized, excavator that on March the operator could not see. When the point when the excavator reached a less excavator, greased hand he two than hundred feet from the overhead would a grease hold line—a rubber and line.
H67 of the ALJ’s dismissal specific instruc- for review given had pertained as it training violation on how or where employees tions review, excavator, manag- trench hand. On the Commission but refuel always reasonably prudent that a em- that the excavator was concluded testified ers anticipated end the trench way. ployer same At the would have refueled power move the overhead exposure day, operator work hand’s him with ad- twenty thirty away provided feet line about excavator hazard. The ground more this electrocution dressing trench onto stable from the 300-gallon reversed ALJ’s portable for a Commission therefore then wait *4 by of citation and portion to the excavator vacatur of this the brought fuel tank to be $5,500. policy penalty Compass there of Although was assessed a forklift. so, managers testi- this for review. doing then filed against 2006, 18, the prior March fied that the off its moved excavator
operator never DISCUSSION anything or compacted pad dirt work did the Commission’s fac We review bring forklift to the except wait for the a substantial findings tual under evidence fuel tank to the excavator. “ standard, if ‘a reason which satisfied however, the excavator On March the able mind’ would consider evidence to call the forklift decided not operator adequate support the conclusion portable fuel tank him. bring the v. Universal Constr. Co. Occu reached.” Instead, of moved the excavator off the he Comm’n, pational Safety & Health Review it towards the fuel pad and walked work Cir.1999). (10th 182 732 We forklift, tank, operator had left which the legal review the Commission’s conclusions power line. The energized the beneath arbitrary, they “to if are capri determine beside the excavator trench hand walked discretion, cious, an abuse of or otherwise line in grease his with the excavator’s with Id. Our re not in accordance law.” hand, boom was so the and the extended under standard is narrow and view grease could reach with the trench hand agency. the Id. highly deferential to Unfortunately, when the excavator gun. The first issue we must consider tank, fuel its 75-foot boom came near the the correct whether the Commission used power line for enough came to the an close the legal test to determine whether Secre line to pass current to from the electric 29 tary a violation of C.F.R. proved through grease then line excavator and 1926.21(b)(2), provides: which hand, killing him. each em employer shall instruct each Following investigation, an the Secre- recognition and avoidance ployee Compass a tary of Labor issued two-item regulations of and the unsafe conditions failing adequately citation for serious to his work environment to applicable and trench hand operator train the or eliminate hazards or oth control clearance of the failing proper to maintain injury. er to illness or exposure challenged The citation was power line. argues that an violation OSHA and vacated an administra- held, alia, through application only can be established law who inter judge tive energized four-part of test set forth exposure to the trench hand’s Co., BNA Battery 16 OSHC The Sec- Atlantic power line was not foreseeable. (1994), other and several Com- petitioned Occupation- 2138 retary of Labor test, to cases. estab- mission Under Safety al and Health Review Commission occupational safety ably present violation or the alleged lish a of where violative standard, health must inadequate training employ- condition is “(a) standard, applicability See, Co., of the cited e.g., ees. Andrew Elec. BNA (b) (No. employer’s noncompliance 2009) (ALJ) with the 08-0103, OSHC 1593 (c) terms, employee standard’s access to (“The standard C.F.R. (d) conditions, the em- violative safety training, addresses knowledge ployer’s actual or constructive the employer necessarily so knows wheth- (i.e., violation either employee er not it each instructed knew, or with the exercise of reasonable recognition avoidance unsafe known, could have diligence violative ”); Corp., conditions.... Lane Constr. conditions).” In Id. rather than (No. 2009) 09-0348, BNA OSHC test, applying generic four-part (ALJ) (“As employer, Lane had actual applied training-spe- Commission more knowledge program.”). As cific test and focused on the issue of prong employee for the third access to — *5 a reasonably prudent whether employer the inap- violative condition—this factor is anticipated have trench the hand’s its in plicable on face the context of exposure to power the overhead lines 1926.21(b)(2), § where the violative condi- provided him on training with this hazard. inadequate tion or nonexistent training. Contractors, Inc., See N & N 18 BNA It nonsensical to ask whether an em- (No. 2000) (“To 2121, 96-0606, OSHC 2125 ployee access a training. had lack of noncompliance training establish with a adjudicators Even where have stretched standard, the must show that language the of the test to ask instead employer the to provide cited failed the employees whether a had access to hazard reasonably a prudent instructions that em- training that against, should have warned ployer given would have in the cir- same prong proven very this has not useful. cumstances.”). See, Elec., e.g., Andrew 22 BNA OSHC We are not persuaded the Commis- (concluding 1593 that an employee was focusing inquiry sion erred in its on this exposed necessarily hazardous condi- question. Nothing pertinent stat- tion because this hazardous condition regulations utes or application mandates death). caused his four-part the Battery Atlantic test an Moreover, under training- even the 1926.21(b)(2) § alleged violation, nor has applied Commission specific test in Compass pointed us to any binding prece- will employer an not be found to dent that so requires. note We this is training have committed a violation unless case in first which the has Commission provide it “failed to the instructions that a foregone generic four-part test in favor reasonably prudent employer would have specific a more training test for viola- in See, Inc., given the same circumstances.” El e.g., Capform, tions. 19 BNA Co., (No. 99-0322, Rigging Paso Crane & 16 2001); 1374 BNA OSHC OSHC Baker 1419, (No. 1993). Co., (No. 90-1106, 1424 An Tank 17 em BNA 90- OSHC 1995). 1786, Indeed, test, ployer’s obligation accordingly to train is generic “dependent upon appropriate specific while many types [at conditions OSHA violations, worksite], proven has in whether those ill-fitted determin- conditions hazard, ing whether create a training employer and whether the industry standard has recognized been violated. The or its has fourth the hazard.” Co., prong employer knowledge of this of W.G. 19 BNA OSHC test — Fairfield (99-0344, 2000). the violative condition—-will almost invari- “Employees must ‘(1) its has recog- employer recog- on how to instructions given be Co., 19 nized the hazard.” W.G. conditions which avoid the unsafe nize and Fairfield Here, BNA at 1236. the overall (2) OSHC job, on the they may encounter lines, high-voltage power worksite included to those hazardous applicable regulations ” hazard em- posed which a severe BNA OSHC Capform, 19 conditions.’ contact them in some ployee might who Cabinet Superior Custom (quoting Moreover, recognized way. (No. 94- Co., 18 BNA OSHC as it particularly applied 1997)). hazard — Thus, train- the Commission’s operator— the trench hand excavator not untethered to test is ing-specific employees at and trained most of its workplace specific conditions take near worksite measures employees hazards to which particular argues, lines. now overhead consid- simply This test may exposed. however, training was unneces- through approach bet- factors ers these sary reasonably does not than particular for this context ter tailored have prudent employer would trained the Battery test. We see generic Atlantic hand on this hazard as well. use of a in the Commission’s error argu- persuaded We are not to assess whether test training-specific ment. An of and employer’s identification 1926.21(b)(2).1 Compass violated certainly on a hazard is specific decided, con we next Having so question relevant to the of whether rea- erred whether the Commission sider *6 employer pro- have sonably prudent would analysis training-specific of this application training Cape this hazard. vided on & Cf. prove a the facts of the instant case. To to Vineyard Safety Occupational Div. v. & standard, Sec training violation of Comm’n, 512 F.2d Health Review prove Compass to that retary required Cir.1975) (“The was (1st company’s own that a provide failed to instructions certainly safety may rules be treated as employer have reasonably prudent would awareness of the evidence its hazard death.”).2 same circumstances. See El given Thayer’s which caused More- Crane, over, BNA at 1424. recognized Paso OSHC this hazard Compass specific being applicable include “the to the exca- particularly These circumstances hand, worksite], those vator and trench and this operator whether [at conditions train- hazard, recognition, in combination with the create a whether conditions suggest practices. conclusion holding, The court reached this we do not mean to 1. In so Battery prongs company general are all that the four Atlantic the relevant rule—a because to a violation. A violation irrelevant requirement protective wear “sufficient'' to where, cannot found for of instance, covering working “close to live while inapplicable. And the standard broadly general too wires”—was far Battery prong will neces- the second Atlantic prove reasonably prudent phrased that sarily if the shows non- be satisfied required specific employer have would training-specific compliance test. under by safety measures asserted additional however, required, was not The Commission Secretary. Cape, 512 In this 1154. four-part Atlantic the mantra of the recite contrast, Compass spe- this identified Battery in to evaluate the relevant test order particular position training about cific case. in the instant factors Thus, Compass’s job safety electrical hazard. regarding analysis clear evidence constituted notes, Cape ulti- the court in 2. As the dissent key in this a reason- issue case—whether violation, finding mately reversed the ably employer have trained the prudent would company at issue holding that the rule trench hand on this hazard. that the insufficient to in that case was reasonably prudent company follow failed to ing provided operator companies other without some evidence the employees, support is sufficient has law been violated. Yet that’s what reasonably that a Commission’s conclusion being we’re asked to in countenance prudent have employer would trained the why I grant case would trench hand on this hazard. Nor does it for review. unduly require seem burdensome to charge sustain her Compass To that vio employees train its on 1926.21(b)(2), lated C.F.R. the Secre known hazard at a mobile severe construc- tary concedes she bore an bur evidentiary tion unanticipated worksite where contin- Aden. of showing reasonably burden that gencies may arise. “One purpose of the prudent in employers prevent Act the first is to accident.” Lee anticipated have the sort of electrical haz Way Freight, Motor v. Secretary Inc. that Christopher ard trench hand Carder (10th
Labor,
Cir.1975).
511 F.2d
provided
in
encountered
this case and
him
Although Compass might not have been with more training
about it than
predict
able
manner in which the
Environmental,
Inc.,
did. See
exposed
trench hand would be
to this haz-
23 BNA OSHC
CONCLUSION Though well aware of the burden she The Commission’s decision is AF- case, in faced the FIRMED. —remark- ably present any proof satisfy —failed GORSUCH, J„ dissenting: The it. ALJ against dismissed the citation reason, exactly explain- agencies Administrative enjoy remarka- ing that ble powers legal our order. Their inter- pretations ambiguous of statutes control Wren, Donnie experi- [i]n a[n] even everyone when Congress most thinks operator, enced crane failed maintain really meant something else. Their regu- feet 20 of clearance the between Komat- long they lations bind as can make the su power [excavator] and the [overhead modest boast they haven’t behaved lines], in training contravention of his arbitrarily capriciously. Their factual years experience....
findings day rule unless someone can they show just have not clearly erred but Still,
erred. thing there remains one even record establishes [that] federal agencies administrative cannot do. ... operator trained Komatsu in the they Even penalize private persons cannot moving hazards associated the exea- “arbitrary capricious” forgiving [overhead electrical] near vator be, may of the APA formulation lines.... utterly isn’t court’s role so ineffectual as (or us require permit) agency to affirm an accident,] Ko- day of the [t]he [On (as found) unsup- ALJ decision feet from the digging 200 matsu was ported by any (concededly) on the proof and was not ex- power lines [overhead] legal law dispositive question. The re- under the lines pected to reach the area evidence, Secretary to quires produce week, following at which time until the Delphic declarations, issue about the been removed. were to have the lines practices employers of reasonable testified that ... [ser- All the witnesses Ray Welding See Evers field. Co. on vicing fueling performed [and were] (6th Cir.1980) OSHRC, 625 F.2d where [at the Komatsu in situ (explaining the reasonable power operated, nowhere near the it standard doesn’t mean “whatever require- lines].... ment ALJ and two Commissioners why explain of the witnesses could None objective on but “an agree” test which operating from standard Wren deviated on the must determined basis evi- by walking Komatsu procedures record”). dence in the No doubt if the away work area with [its from site rule were otherwise—if day of the acci- power lines] companies could for violations cite based Secretary introduced no evi- dent. The on a mere assertion unreasonableness— establishing Compass should have dence process substantial constitutional due so, taking would do Carder [he] foreseen vagueness questions quickly follow. with him. vagueness (rejecting pro- See id. and due Environmental, Inc., No. 06- challenges regulation cess OSHA 2008). (OSHRC *5-6, Jan. precisely only because reasonable These are the sad facts of the case as guarantees that “an employer standard Secretary’s proof comes to us. The shows with employer familiar the circumstances years operator that the excavator defied adequate warning ... of the [has] experience by moving —first required regula- conduct refuel- the excavator from trench for tion”). failing and then to maintain feet ing, *8 of from the overhead electrical clearance problem, the Perhaps recognizing when did. The shows that a proof lines he
point we long recognized have in analogous industry of practice, enough. To the contexts. See generally contrary, Hinds v. the First acknowledged Circuit Co., Sprint/United Management, 523 F.3d that merely company’s evidence about (10th Cir.2008) 1198-99 (holding safety in usefully internal rules can contrib- the employment project discrimination context ute of obtaining to an accurate that “the mere failure of a company’s picture industry em- of prop- norms—a modest ployees employer’s Then, to follow their disputes. having manuals osition no one said more, that, ... nothing without does to suggest the First Circuit to proceeded re- verse, affirm, explaining discrimination” and that a con- an OSHA citation based
H73 ly Respectfully, I would grant stretch. company internal rules. of a violation on review. reasons it offered among the various And observed that holding, court for that needlessly discour-
contrary result “would exhorting employees from
age [employers] every precaution.” possible
to take
Id. Exactly so. Secretary has
Having that said industry of prove
failed to violation power to say to she lacks the
norms isn’t from it. industry from norms. Far
deviate try prove the stan- Secretary can
The industry are question in too
dards prudent employ- a reasonably
lax even negligence of course “such on though er— KERNS; Kerns; Mary Archie Jason industry cannot be part of a whole Kerns, Ann Plaintiffs- proven” “must be lightly presumed” and Appellees, Co., Ray Welding Evers with evidence. 732; see L.R. Willson & also F.2d at Sons, Inc., (“In F.2d at 514 ab- Albuquerque Department Offi Police evidence, [industry] sence BADER; Thompson; cers Drew Matt alternative, probative evi- provide must Carter, Russell in their individual ca proof.”). ... meet his burden dence pacities, Defendants-Appellants, Alternatively, can even more straightforwardly engage “the standard- in the machinery provided Act” making safety regulations employers announce Board of Commissioners of Bernalillo customary are they
must abide whether
County
County; Bernalillo
Sheriff
places
all
process
not—a
comers
White,
in
Darren
his individual
and higher
notice
the need meet new
capacity;
his official
Bernalillo Coun
Insulation,
B
& B
583 F.2d
standards.
Lindley;
ty
Brian
Sheriffs Detectives
1371.
Hamsten,
Ralph Gonzales; James
capacities; Bernalillo
their individual
The
case
problem this
Secre-
County
Deputies Lawrence
Sheriff
tary
pursue any
of these
made
effort
Koren;
Connors;
Wright;
Aaron
Sean
Instead,
proceed
she chose to
options.
Hix;
Moya,
Timothy
in their
Rhonda
regulation
required her to
under a
capacities;
City Al
individual
reasonably
employers
prudent
buquerque; Albuquerque Police De
provided
have
Mr.
Johnston;
partment Officers Robert
training than he' re-
Carder with more
Montoya, in their individual ca
James
Compass. Then she failed to
ceived from
pacities; Metropolitan Forensic Sci
question.
on that
And
produce
proof
Mark
ence
Firearm and Tool
Center
liable.
now she still seeks
hold
*10
Haag, in his individu
Examiner Mike
Secretary’s
powers
administrative
1-10,
capacity;
their
considerable,
Does
al
John
policy options are
available
capacities, Defendants.
they do not
individual
even vast. But this far
lawful-
notes
Secretary
that
trained oth-
proof
But the
tragic accident ensued.
dangers
er
of electric-
employees about
question
reasonably
on the
whether
silent
says
ity lines. She
that Mr. Carder was
prudent
industry
employers
project began
hired after
construction
anticipate
more to
or train a
have done
everyone
was trained.
and most
else
She
for
than
hand
the accident
everyone
us
tells
that
else heard from
us,
Secretary
that
did. Before
asserts
hazards.
Compass about electrical
She
a
would have done
reasonable
that Mr. Carder received train-
concedes
support
but in
of this assertion she
more
scene,
ing when he arrived late
but
no
offers
evidence.
his
stresses that it’s unclear whether
train-
enough
ing
than
included the same information about
And that should be more
everyone
for
However
electrical hazards
else heard.
grant
review.
this,
Secretary asks
standard
From all
us
little the “substantial evidence”
Compass at least violated its
requires
agency,
of an
however
assume that
review
1172
policies
failing to warn Mr.
trary holding
“[dissuading
own internal
would risk
em-
ployers from implementing
Carder.
programs
policies
prevent discrimination,”
a result
evidentiary
This
fill the
void
can’t
either.
“directly contrary
underly-
to the purposes
willing to
Even if we were
assume with the
law)
omitted).
ing”
(quotation
Secretary
that
violated its inter-
policies
failing
reasons,
nal
warn Mr.
all
Carder
For
it
as
these
comes
no
hazards, that still
surprise
Secretary
about electrical
wouldn’t
that
is unable to
By
norms.
single
any
violated
cite a
from
case
other circuit
admission,
1926.21(b)(2)
Secretary’s
§
holding
company
liable
under
companies
failing
doesn’t
punish
simply
ad-
because it failed to
practices
fact,
here to their internal
cus-
follow
In
policy.
every
internal
punishes
failing
toms.
It
them for
to act
recognized,
other circuit has
as Justice
(then
reasonably prudent employers
Judge)
as
in the
Breyer
explained,
once
that
do.
worded,
field
And the fact remains that the
“a vaguely
open-ended regulation
Secretary presented
proof
1926.28(a)
on that ques-
like [29 C.F.R.
... must
]
[or-
dinarily]
tion.
penalize
be read to
only conduct
unacceptable
light
common un-
problem
Neither can we
overcome
derstanding
experience
work-
those
Secretary by
for the
that
presuming
Com-
ing
industry.”
F.A. Gray, Inc. v.
practices
pass’s
industry prac-
internal
OSHRC,
(1st
23,
Cir.1986)
785 F.2d
25
tices are one and the same.
Internal com-
J.)
omitted)
(Breyer,
(quotations
(emphasis
(and
do)
may
pany
go
rules
often
above
added);
see
Roofing
also Tri-State
&
beyond industry
Compa-
standards.
Metal,
OSHRC,
Sheet
v.
Inc.
685 F.2d
nies,
all, compete
after
for labor and busi-
(4th Cir.1982);
Insulation,
880 n.
BB &
ness,
safety
and worker
is one dimension
(5th Circuit);