United States v. Pruett

underlying of an assault. injury attempt proof or or tion lacks or quire any contact injury. government The Because the has not shown contact threat of offensive distinguishes was harmless under our any such element that such error absence of cited Esparza-Perez’s from the cases sentence is precedent, Arkansas statute States v. REMAND this case See United VACATED and we government. (5th 10803,at *2 Jan. resentencing. Cir. Bailey, 2012 WL Ramirez, 3, 2012); v. States United (5th Cir.2009); United 205-07 Torres-Salazar, Fed.Appx. v. (5th Cir.2008); United States 329-30 Fernandez, Fed.Appx.

Cir.2008); Mungia-Portillo, 484 F.3d Guillen-Alvarez,

816-17; States v. United Cir.2007). Each 200-01 America, UNITED STATES of aggravated involved an as of those cases Plaintiff-Appellee, requiring the defendant sault statute or at actually injury caused another Thus, tempted or threatened to do so. Jeffrey PRUETT; Louisiana Land & J. fall common those statutes within the Company; Management Water LWC aggravated assault because meaning Company, Incorporated, Defendants- out un they proscribe an assault carried Appellants. aggravating der certain circumstances. any That the Arkansas statute lacks such No. 11-30572. significantly element makes it different Appeals, States Court of Penal from the Model Code definition Fifth Circuit. assault, aggravated and takes it outside meaning of the term. the common May Indeed, conviction does Esparza-Perez’s a crime of as the

not constitute violence “aggravated offense of as-

enumerated essentially

sault” for the same reason the not, it

government concedes does under

existing precedent, constitute a crime of

violence under the residual clause. See (“ l(B)(iii) § 2L1.2 cmt. n. ‘Crime

U.S.S.G. any ... ... offense ...

of violence’ means use, attempted

that has as an element the

use, physical or threatened use of force another”). Assault,

against person of , understood, by nature commonly its use, use, attempted

requires proof

or threatened use of offensive contact

against person. another

Esparza-Perez “ag- was not convicted of

gravated sentencing assault” for enhance- purposes

ment because his crime of eonvie- Cassiere, Atty.

Josette Louise Asst. U.S. (argued), Campbell, Shreveport, Earl M. LA, Smeltzer, Dept, John Luther U.S. Justice, Environment & Natural Re- Div., DC, Washington, sources Thomas C. Walsh, Jr., Alexandria, LA, for Plaintiff- Appellee. Wiener, Allyn (argued),

Michael Stroud Madison, A.P.C., LA, Shreveport, Weiss & Defendants-Appellants. KING, Before BARKSDALE and PRADO, Judges. Circuit PER CURIAM: Defendants-Appellants Jeffrey J. Pruett, Co., Louisiana Land & Water and and Management, operate LWC who own facilities, Inspectors wastewater treatment facilities. discovered numerous violations facilities, knowingly violating many at of these charged were six which are (1) (2) trial, Gabon, issue here: ten-day Bayou Act. After a Clean Water (3) Charmingdale, on Donovan Defendants-Appellants were convicted Woods and (4) (5) They Daywood, Park, their Fleetwood multiple appeal counts. now Love (6) Estates, Bayou. Pine convictions and sentences. For the rea- After discov- violations, herein, ering government we these ini- sons stated AFFIRM. prosecution tiated a criminal against I. AND FACTUAL PROCEDURAL Pruett, LLWC, Management. and LWC

BACKGROUND The seventeen-count indictment charged offenses, categories four broad all in Defendanh-Appellant Jeffrey J. Pruett 1311(a), §§ violation of 33 U.S.C. (“Pruett”) president was the and chief ex- 1319(c)(2)(A): (1) failure to provide proper Defendants-Appellants officer of ecutive facilities; operation and maintenance of (“LLWC”) Louisiana Land & Water Co. (2) failure to maintain (“LWC monitoring results Co., Management Inc. and LWC (3) required by permits; discharge Pruett, Management”). through LLWC limitations; excess effluent Management, responsible and LWC unpermitted discharge. Several counts operation twenty-eight for the wastewa- government’s were dismissed on the mo- ter treatment facilities in northern Louisi- tion. ana. Following ten-day during trial which discharged

Pruett’s facilities treated and government presented twenty the wastewater, wit- known as “effluent.” Under nesses, jury the (“CWA”), was instructed that for the Act Clean Water 33 U.S.C. (1) each offense it could return a verdict of required § Pruett was a obtain (a (2) a guilty knowing felony), of violation Pollutant Discharge National Elimination (a (“NPDES”) guilty negligent of a violation misde- System permit for each waste- (3) meanor), guilty. jury The re- facility that operated. water treatment he (1) following guilty turned the verdict: a required permits Pruett obtained the against Appellants verdict all for a know- through Department the Louisiana En- of ing violation of effluent limitations at Love Quality (“LDEQ”), vironmental which ad- (2) (Count 13), guilty a verdict Estates program ministers the NPDES Louisi- against knowing Pruett and LLWC for a Among ana. other things, the NPDES violation keeping require- of the record permits imposed “effluent limitations” on (Counts 2, 5, 8, 11, 12, at all ment facilities discharge pollutants of certain from 15), guilty against a verdict required treatment facilities. Pruett was negligent Pruett a opera- for violation of samples to collect to ensure that effluent requirements tion and maintenance at Pine discharges from his facilities were within (Count 14). Bayou limits, Appellants were permit regularly and to submit the results, acquitted on all remaining counts. Discharge Monitoring test called Reports, LDEQ. Pruett was also twenty-one Pruett was sentenced required to maintain detailed of records felony months incarceration on the convic- monitoring provide his activities and in- tions and twelve months on the misde- spectors access to his records. conviction, concurrently, meanor to run $310,000.

In November the Environmental and a fine of LLWC was fined (“EPA”) $300,000 Agency LDEQ Protection Management and the and LWC was fined $240,000, began inspections joint of imposed series Pruett’s with the fines on cence, long totality all against Appellants. so as the of the evi- and several basis permits guilt beyond dence a conclusion of followed. appeal This a reasonable doubt.” United States v. II. DISCUSSION Hicks, (5th Cir.2004) (citations omitted). challenge sufficiency Appellants evidence, jury negli- instruction on gence, evidentiary rulings, certain and the Sufficiency Support 2. Evidence to juror. They mid-trial dismissal of also Felony Convictions imposed by the appeal the sentences dis- CWA, any “discharge Under each issue in turn. trict court. We address unlawful,” pollutant by any person shall be when, alia, except discharge inter Sufficiency A. the Evidence in compliance permitting require with the Review Standard of 1311(a). § ments of 1342. See 33 U.S.C. properly moved Appellants prescribes As Section 1319 both civil and judgment acquittal pursuant penalties for a criminal for violations of these requirements. Federal Rule of Criminal Procedure penalties Criminal are di (misde they sufficiency preserved “[negligent their of the evi vided into violations” meanors) (felo claim appellate “[k]nowing dence review. We re violations” nies). Appellants’ challenge 1319(c)(1)(A),1 view de novo. See 33 U.S.C. Ollison, (c)(2)(A).2 United States (5th Cir.2009). assessing a challenge to Appellants appeal felony their convic- evidence, sufficiency we must respect tions with to certain effluent and “whether, viewing determine after the evi keeping record violations. We find that light dence in the most favorable to the government presented sufficient evi- prosecution, any rational trier of fact could support dence to the convictions. have found the essential elements of the beyond a crime reasonable doubt.” Jack i. Violations Effluent 307, 319, Virginia, son v. U.S. S.Ct. (emphasis Appellants 61 L.Ed.2d 560 appeal felony their convic- original). a respect there is conflict over tions with to “When Count which al- testimony, leged May the court will defer to the fact that from August 2005 to finder’s with respect Appellants resolution knowingly discharged pollu- weight credibility the of evidence. To tants at the Love Estates treatment facili- sufficient, be the ty evidence need not ex in excess of effluent limitations set forth every hypothesis clude reasonable of permit. inno- their NPDES appeal, they On 1319(c)(1)(A), applicable 1319(c)(2)(A), negli- 1. Section applicable to 2. Section to know- violations, violations, gent provides: ing provides: wlm— n Anyperson Any person who— (A) (A) negligently knowingly violates section 1311 ... of violates section 1311 ... of title, title, any permit any permit this or condition or limita- this or condition or limita- implementing any implementing any tion of such sections in a tion of such sections permit permit issued under section 1342 of this under issued section 1342 of this by by title by by the Administrator or a State .... title the Administrator or a State .... punished by shall punished by be a fine of not less than shall be a fine of not less than $2,500 $25,000 $5,000 $50,000 per day nor more per day than nor more than violation, violation, by imprisonment by imprisonment or for not more or for not more year, by years, by than 1 or .... both than 3 .... both triple by permit. the levels allowed the government produced the concede government testimony also introduced viola- prove to the evidence sufficient inspector from an that Pruett had installed occurred, govern- that the argue but tions (an an unorthodox makeshift measure old evidence of produce did not sufficient ment car) rail at facility, the Love Estates even responds The government their intent. though Pruett knew that the car rail requisite the intent it demonstrated pur- not authorized for water treatment constancy “the near and extended through poses. Estates violations” of the Love duration four-year period. evidence, over a In light of this which we must light view in the to most favorable the intent neces general, “[t]he prosecution, we find that rational trier of a conviction can be demon sary support beyond fact could have found a reasonable or circumstantial evi strated direct that Appellants knowingly doubt violated of unlawful dence that allows inference permit limitations at Love Estates. intent, inno every hypothesis and not Therefore, there was sufficient evidence to States v. cence need be excluded.” United support Appellants’ convictions on (5th Cir.1994). 737, 740 17 F.3d Aggarwal, Count prove may Prior acts be introduced to 404(b); see United intent. Fed.R.Evid. ii. Records Violations El-Mezain, 549-50 challenge Pruett and also LLWC Cir.2011). In United States Greul sufficiency respect evidence 95-50705, 1996 WL 460109 ing, No. 2, 5, 8, 11, 12, to Counts which 1996), we found sufficient evi Aug.1, Cir. alleged keeping of record re violations factory owner’s convic support dence to quirements. We find sufficient evidence 1319(c)(2)(A) tion under 33 U.S.C. support the convictions. into a knowingly discharging pollutants 1319(c)(2)(A), it is a Under U.S.C. There, government city system. sewer knowingly “any permit felony to violate Greuling’s evidence of sub presented had implementing” or limitation condition industry, in the his experience stantial Among things, other Pruett’s CWA. factory condi knowledge inadequate him to ensure permits required NPDES tions, reports citations and repeated factory, at and his discharges excess [inspectors] copy, access to and [h]ave money repair failure to allocate times, any records that the reasonable factory. at *2-3. Similar evidence Id. department representar or its authorized industry in here. Pruett worked the exists necessary are for the five determines permit and was familiar with his since 1986 permit. enforcement of this For rec- presented obligations. government The in a central or ords maintained either the effluent demonstrating evidence only private open during office that is at Love Estates were constant violations at normal office hours and is closed the charged in up including period to and inspection, the records shall be time of (a period approximately the indictment as the office is made available as soon than the close years).3 points, open, four At some dis but in no case later day. were double or next business charges at Love Estates contrast, defense to an temporary noncompliance set” "constitutes an affirmative 3. mere In "upset,” and not evi brought noncompliance” would be considered an if certain action knowing 122.41(n)(2). See 40 C.F.R. dence of a violation. conditions are met. Id. 122.41(n)(1f). "up- of an A demonstration LDEQ at inspections provide EPA and Pruett therefore did not During “access” facilities, required by permits.4 records as his Appellants’ inspectors several of produce Pruett certain op- demanded that We also find in- sufficient evidence of Pruett claimed that he erating records. light tent. In experience, Pruett’s he the records he produce could not because knew or should have known that he was attorney had sent them to his civil in Ba- required to maintain inspec- records for Rouge response subpoena. ton in to a The tors. The permits put themselves also jury convicted Pruett and on six LLWC Pruett on notice that a duty he had violations, upon counts of records based maintain produce during records and them inspections at his facilities November inspections. inspectors likewise August December stressed to Pruett importance pro- viding during documentation their Novem- argue Pruett and appeal, On LLWC inspections. ber 2007 Pruett nevertheless records, inspectors had “access” to the provide failed to inspec- the records when required permits, though even tors returned December 2007 and Au- Rouge the records were in Baton and not gust August 2008. In Pruett did not In inspected at the facilities. the alterna- provide even subpoena civil as an excuse tive, they any maintain that violation of the for this failure. repeated These incidents keeping requirement record was uninten- constitute sufficient jury evidence for the tional. to conclude that Pruett knew of his obli- gations, intentionally but failed to turn his We conclude there is sufficient records inspectors. over Although evidence to support keeping the record attempted provide Pruett an innocent convictions. provide Pruett did not “ac failures, explanation for his the jury was merely by cess” to the in telling records free to disbelieve him and conclude that he vestigators that those records located were intentionally provide failed to inspectors attorney’s Rouge. his office in Baton with access to his records. Although permits contemplate might records be maintained at an office sum, we conclude that there was suf- that is closed at the inspection, time of ficient evidence to support Pruett’s and permits require nevertheless that the rec 2, 5, 8, 11, LLWC’s on convictions Counts ords “shall be made available as soon as and 15.

the office open, is but no case later than Sufficiency S. Sup- the Evidence to day.” the close of the next business Con port Misdemeanor Conviction requirement, sistent with inspectors this twenty-four allowed Pruett pro hours to Finally, challenges Pruett his con records, duce the but Pruett never did negligent operation so. viction for and mainte- 848, 858, argue 4. Pruett and LLWC also that the rule of U.S. 120 S.Ct. 146 L.Ed.2d lenity requires (2000) (citation reversal of the records convic- quotation and internal tions, requirement ambigu- as the "access” omitted). rule, marks "To invoke the we interpreted ous and should be in their favor. grievous must conclude that there is a ambi- We apply lenity. decline to the rule of Under guity uncertainty or in the statute.” Muscarel- interpretation, this rule of "when choice [a] States, 125, 138-39, lo v. United 524 U.S. 118 readings has to be made between two of what S.Ct. (emphasis 141 L.Ed.2d 111 crime, Congress conduct has made a it is added) (citations quotation and internal appropriate, [a before court] choose[s] omitted). "grievous marks We find no ambi- alternative, require Congress harsher to guity” requirement in the "access” sufficient spoken language should have in that is clear apply lenity. to the rule of States, and definite.” Jones v. United support conviction facility treatment sufficient Pruett’s on Bayou the Pine nance of 14). 14. (Count evidence to Count find sufficient We as well. this conviction

support Negligence Jury B. Instruction trial, inspector EPA Patricia Willis At 1. Standard Review a operation normal of of about the testified of facility handling and the treatment Where, here, jury a instruction that when she visited sludge. She testified in presents question statutory issue a of sludge no Bayou, Pine there was terpretation, we review the issue de novo. bed,” usually where it is “sludge drying Ho, See United States located, approxi- she found and instead (5th Cir.2002). in the “chlorine

mately sludge four feet of chamber,” Analysis to treat which is used contact prior to dis- with disinfectant wastewater above, As noted U.S.C. normally sludge. contains no charge, and 1319(c)(1)(A) imposes penalties criminal into ultimately discharged sludge This “negligent permit violations” of condi- Bayou the Pine receiving stream near Appellants requested tions. that the dis- that the dis- facility. Willis also testified jury give gross negligence trict court a originat- Bayou the Pine creek charge into 2.02(2)(d) definition based on of the discharge pipe, and facility’s from the ed Code, proposed Model Penal the fol- facility sludge from the the creek received lowing instruction: that in “nor- acknowledged Pruett itself. A negligently defendant acts with re- cham- contact operation, [chlorine mal of the when he spect to a violation CWA sludge,” full but con- not be ber] would is a substan- should be aware there estimate of the amount tested Willis’s unjustifiable that the viola- tial and risk explanation her sludge in the chamber and from his con- tion exists will result discharge the creek. sludge for the a duct. The risk must be of such nature Duthill, testified expert, Charles Pruett’s degree that the failure defendant’s facility at a like Pine sludge discharge it, perceive considering the nature and that the facili- Bayou expected, can be his and the cir- conduct purpose limitations. ty operated permit within him, known to involves cumstances from the standard gross deviation tes- jury ultimately credited Willis’s person would ob- care that reasonable at Pine timony regarding the conditions serve in the defendant’s situation. Pruett’s and Dut- Bayou, and discounted objection, the court in- Appellants’ Over testimony. The evidence demon- hill’s following gave stead instruction: ap- aware of the strated that Pruett was care, but allowed the propriate standard of to use reason- Negligence is the failure in a inconsistent facility operate manner care is that able care. Reasonable- standard, in the resulting thus reasonably pru- care that a amount of Although provid- Pruett cir- discharge. excess would use similar person dent incident, may Negligence ed a different account consist cumstances. reasonably among something all reason- which a jury doing was “free to choose do, may or it person of the evidence.” Unit- would not prudent able constructions Ibarra, something failing of a to do ed consist Cir.2002) (citation prudent person reasonably quotation and internal which omitted). person Thus, reasonably prudent A was would do. the evidence marks exceptionally language. is cautions or skill- We must therefore conclude individual, 1319(c)(1)(A) person ful but a of reason- § requires only proof of ordinary carefulness. able and ordinary negligence. See Under Hartford Bank, writers Ins. v.Co. Union Planters Appellants argue ordinary that the court’s N.A., 1, 6, 1942, 530 U.S. 120 S.Ct. erroneous, negligence was instruction as (2000) (“[W]hen L.Ed.2d 1 the statute’s 1319(c)(1)(A) § requires proof gross language plain, is the sole function of the 1319(c)(1)(A) negligence. § Whether re- courts—at least where disposition re quires ordinary gross negligence or ais quired by the text is not absurd —is to in question impression of first this circuit. terms.”) (cita enforce it according to its must, begin, we We with the quotation tions and internal marks omitt statutory text. See Consumer Prod. Safe ed).5 Inc., ty Sylvania, Comm’n v. GTE 102, 108, 2051, U.S. 100 S.Ct. 64 L.Ed.2d This conclusion is consistent with our (1980) (“[T]he starting point interpretation for inter of other criminal statutes preting a language statute is the require negligence. In United States itself.”). 1319(c)(1)(A) statute O’Keefe, Section re Cir.2005), 426 F.3d 274 we fers explicitly “negligent” to violations of addressed the proper interpretation of Negligence the CWA. an ambigu is not “negligence” 1115, § in 18 U.S.C. which term, ous and is understood to provides: mean “[e]very captain “[t]he ... by whose failure misconduct, to exercise the standard of care negligence, or inattention to reasonably prudent that a person would his duties on vessel the any [a] life of have exercised in a similar situation.” person destroyed ... shall ... be im- ” Dictionaby (8th ed.2004). prisoned not more than years ten .... Black’s Law It is well established that “applying courts Id. at 277. The rejected district court generally criminal laws must follow the argument defendant’s gross negli- plain unambiguous and meaning gence required statute, under the and statutory language,” “[o]nly and the most this court affirmed. The court O’Keefe extraordinary showing contrary explained, inten plain “when the meaning of the legislative history tions justify will face, statute is clear on its courts are departure that language.” from required Salinas v. give effect to language States, 52, 57, 522 U.S. 118 S.Ct. according statute to its terms.” Id. 469, (1997) (citation 139 L.Ed.2d 352 § The court then evaluated quotation omitted); internal marks see found “nothing in the sug- statute’s terms Inc., Sylvania, GTE 447 U.S. at gesting ‘misconduct, the words negli- S.Ct. 2051. As we have gence inattention,’ found no such were ever meant to contrary intentions legisla imply statute’s gross negligence or passion heat of ” history, tive we are bound .... Id. This equally rationale is appli- 1319(c)(1)(A)’s § plain and unambiguous 1319(c)(1)(A), § cable to and bolsters our Congress 5. Where has in only fact intended re- "[njegligent refers violations.” Where quire gross negligence negligence, rather than "Congress particular language includes explicitly, it has said so as it did in 33 U.S.C. one section of a statute but omits it in another 1321(b)(7)(D). § This section the CWA Act, section of the same generally pre- it is provides for penalties any increased civil "[i]n Congress sumed that intentionally acts case in which a violation of [33 U.S.C. purposely disparate in the inclusion or exclu- 1321(b)(3)] § gross negli- was the result of States, sion.” Russello v. United 464 U.S. gence or willful misconduct.” 33 U.S.C. (1983). 104 S.Ct. 78 L.Ed.2d 17 1321(b)(7)(D). contrast, 1319(c)(1)(A)

243 public not a welfare stat imposes an that the CWA is this subsection that conclusion ute, standard. the court determined the mens ordinary negligence requirement applied non-juris rea to each have like and Tenth Circuits The Ninth element of the offense. Id. The dictional 1319(c)(1)(A) requires § held wise “public welfare” determination was rele In United ordinary negligence. only provision in that a vant case because Hanousek, 176 F.3d 1116 v. States require rea statute was silent on the mens Cir.1999), rejected a sim the Ninth Circuit States, Staples ment. v. United 511 See Appellants to the one ad argument ilar 600, 604-06, 1793, 114 U.S. S.Ct. 128 upon relied here. The court vance (1994). Here, contrast, in no L.Ed.2d 608 of the statute and reasoned plain language investigation public into the welfare issue imposed have a Congress could necessary explicitly because the statute if it at standard so chose. Id. heightened requires negligence.7 The Tenth has reached 1120-21. Circuit United States v. similar conclusion. See 1319(c)(1)(A) sum, § In we find that re- (10th Cir.2005) Ortiz, 1278, 1283 427 F.3d ordinary negligence, quires only proof of (“Under an plain language, the statute’s jury and thus hold that district court’s by failing to violates the CWA individual proper. instruction was degree of care that someone exercise the have exercised ordinary prudence of would Evidentiary Rulings C. ”).6 .... in circumstance the same 1. Standard Review of rely largely upon holding our Appellants evidentiary rul A district court’s Ahmad, 101 F.3d 386 v. United States reviewed for abuse of ings typically are (5th Cir.1996), the CWA is not Sanders, v. 343 discretion. United States statute, requires and thus welfare” “public (5th Cir.2003). 511, This stan Ahmad, mens rea. Id. 391. criminal in criminal “heightened of review is dard There, however, the court point. is not on case, however, which demands that evi “knowingly” to decide whether had 1319(c)(2)(A) strictly partic ... be relevant to the dence § to requirement applied v. offense, charged.” ular offense United States or instead each element of the Hernandez-Guevara, 863, 162 F.3d Noting only “discharge” element. however, not, un- acknowledge 2201. This concern does Appellants Hanousek 6. While Ortiz, While Hanousek looked they rely upon unpublished an dis dermine Hanousek. decision, when consid- provision a civil of the CWA v. Atlantic trict court United States Co., 03-852(MLC), Congress “gross negli- ering meant whether Pipe Iron No. States Cast (D.N.J. 2007), “negligence” gence” instead Aug. 2007 WL 1391(c)(1)(A), only to note the § it did so negligence argument. support gross their used, language terms not plain differences in misplaced. Atlantic Such reliance is Moreover, Hanousek did to define the term. negligence applied ordinary court upon support Hanousek, rely solely this distinction to standard, not but in consistent with 1391(c)(1)(A). § interpretation its reliance on the dicta criticized Hanousek's “gross negligence” in cer CWA'sreference that, provisions incompatible incorrectly with the Appellants tain civil contend ab- 7. also Supreme gross negligence, Insurance "the standard for a Court's decision sent Safeco Burr, CWA a criminal 551 U.S. 127 S.Ct. violation of the Co. civil (2007). negligence would be exact- Id. at *14 based on L.Ed.2d 1045 n. violation Burr, ly violation of 1319 does Supreme cautioned that the same.” A civil Court negligence. require proof See in fact vocabulary the criminal side of [a “[t]he EPA, 1319(b); Kelly construing see also point in 33 U.S.C. is ... beside the statute] Cir.2000). S.Ct. the civil side.” 551 U.S. at (5th Cir.1998) (citation quota- and internal probative value that is not substantially omitted). grounds outweighed by Error is not prejudice.” tion marks its undue Unit- Cockrell, it “substantially preju- for reversal unless ed States v. 587 F.3d (5th Cir.2009) (citation rights. quota- diced” the defendant’s United and internal omitted). (5th tion marks “In Lopez, weighing States v. Cir.1992); 52(a); probative prejudice, value and unfair see Fed.R.CRIM.P. this Fed. 103(a). court must make a ‘commonsense assess- R.Evid. ment of all the surrounding circumstances 101(b) 2. Rule Evidence the extrinsic offense.’ Probative value ‘must be regard determined with object large Appellants amount of extent to which the defendant’s unlawful uncharged conduct that the district court by evidence, intent is established other pursuant admitted into evidence to Feder ” stipulation, or inference.’ Id. at 678-79 404(b).8 al Rule Although of Evidence Beechum, 914). (quoting 582 F.2d at Oth- they concede that the evidence was admis “ er factors to be considered include ‘the intent, prove they sible to contend that the overall similarity of the extrinsic and evidence should have been excluded be offenses, charged and the amount of time probative cause it had little value in light that separates the charged extrinsic and significant of the charged amount of con offenses’ as well any limiting as instruc- already They duct at issue. further argue tions.” Id. at 679 (quoting United States if proba even the evidence had some Richards, (5th 204 F.3d 199-201 value, tive substantially value was out Cir.2000)). weighed danger prejudice. of undue part The first of the Beechum test Under Federal Rule of Evi is not disputed; Appellants concede that 404(b), crime, dence of a “[e]vidence the evidence was relevant to intent or ab wrong, or act other is not admissible to sence of mistake. We find that the second prove a in person’s character order to part of satisfied, Beechum is also as the particular show on a occasion the probative value of the evidence is not sub person acted accordance with the char stantially outweighed by preju its undue acter,” may but evidence “[t]his be admis Contrary contention, dice. Appellants’ purpose, sible for another such proving as probative value uncharged acts motive, intent, opportunity, preparation, evidence was not “minimal.” Intent was a plan, knowledge, identity, absence of mis trial, central matter in dispute Appel at take, lack of accident.” Fed.R.Evid. lants had asserted that the various viola (2). 404(b)(1), analyzes This court Rule tions were isolated and accidental inci 404(b) admissions under the two-prong dents. The evidence of other violations test first outlined United States Beec refuted this defense. hum, Cir.1978). “First, crimes, the evidence of other arguing that the uncharged conduct wrongs, or acts must be relevant an conduct, overwhelmed charged Appel- issue other than the defendant’s character attempt lants to analogize their case to Second, .... possess the evidence must Fortenberry, States v. 860 F.2d 628 types 8. Two (unin- of extrinsic permit offense evidence are evidence of violations at other (1) dicted) issue permit here: evidence of plants operated by viola- Appellants. At tri- al, plants tions at wastewater treatment named exclusively two witnesses testified as to occurring the indictment uncharged but after the time conduct and five others testified as indictment, period charged in the charged uncharged to both conduct. prejudice by instructing unfair Cir.1988). danger of no basis for such seeWe case, jury regarding purposes court found the limited In that analogy. so do- uncharged conduct the evidence.” which it could consider that evidence preju- Charles, trial that the Fortenberry’s Fed.Appx. minated 366 United States “substantially outweighed” (5th Cir.2010); it created dice see also United Fortenberry was probative (5th value. Booker, its States v. de- explosive a small placing with charged .2003). Cir car, caused unoccupied which

vice in an sum, conclude that the we district trial, government At the damage. minimal the Rule admitting court did not err involving evidence introduced extrinsic 404(b) at issue here. evidence arrows, three crossbow three attacks with arson, an act of vandalism incidents Negative Evidence 3. Character rifle, that For- prove failed to a but of these of- tenberry perpetrator the trial, was government At called external at 632-33. These fenses. Id. negative as a character Richard Crockett prejudicial,” were “highly were offenses regarding evidence provide witness to crimes,” far magnitude of “a were “violent for truthfulness Pruett’s character offenses,” and charged than the greater honesty, to Federal Rule of Evi pursuant time than the jury’s more of the “occupied 608(a). had worked for dence Crockett Id. at charged offenses.” evidence three months. Pruett Pruett for about that, Therefore, the court concluded 632. testimony was inadmissi argued that the a dog,” and ordered wagged tail “this Rule of Evidence 403 ble under Federal This case is trial. 636. new Id. value of probative because the Crockett’s Appel- dispute no There is different. by the risk of opinion outweighed was of- perpetrators were the lants Although the prejudice. undue district were fenses, uncharged offenses and the initially concerned that Crockett court was crimes as type of environmental the same employee, the disgruntled a former was Although the evi- charged offenses. to ex ultimately no reason court found was substan- uncharged conduct dence stand, testimony. On the Crock clude the tial, charged con- it not overwhelm the did of Pruett’s truth opinion was asked his ett duct. “there is fulness, only, answered Finally, we see no indication maintains appeal, On Pruett none.” played more extrinsic evidence have been excluded the evidence should than it did to the issue jury’s emotions past light of Crockett’s under Rule 403 legiti- have found this to be intent. We Pruett. relationship with employment extrinsic of- where “[t]he mate concern testimony this was Pruett contends nature; [such ... is ... of a heinous fense credibility because his unfairly prejudicial jury to irra- would ... incite the that it] case, testimony in the and the was critical human emo- by its force on tional decision him as dishonest. cast Beechum, F.2d at 917. The tion.” “may ex Rule a court Under here, relating to testimony mainly at issue val probative if its clude relevant evidence sewage and Pruett’s discharge of raw by danger substantially outweighed ue is repair ongoing prob- makeshift efforts Fed.R.Evid. prejudice.” of ... unfair lems, emotionally particularly is not Rule alleged an of review for The standard incendiary. To the extent charged or “ high’ and re effect, ‘especially 403 violation is may improper have had evidence for re- of discretion’ ‘a clear abuse quires “minimized the properly court the district Setser, versal.” States v. admitting witness’s dishonest act or —a Cir.2009) (citation omitted); 609(a)(2). false statement.” Fed.R.Evid. El-Mezain, (“Giv- 664 F.3d at 511 see also Gonzales, In Howard v. 658 F.2d 352 deference significant en the this court Cir.1981), we held that the crime of theft court in shows to the district Rule 403 not dishonesty a crime of and was not matters, rulings the district court’s will not 609(a)(2) admissible under Rule impeach disturbed.”). be credibility. witness’s Ap- Id. at 358-59. find that the district court We did Howard, pellants recognize but contend admitting abuse its discretion in Crockett’s longer by we are no it light bound testimony. Crockett worked with Pruett subsequent amendments to Rule for three months could therefore offer which can now be larceny read to include opinion a valid as to Pruett’s truthfulness. dishonesty. as crime of If Pruett concerned about Crockett’s Howard, Since Rule 609 was substan motivations, credibility and he could have tively amended in 1990 and 2006.9 Rele inquired into these issues on cross-exami- here, vant the advisory committee notes nation. Pruett never did so. accompanying the 2006 amendments ex Impeachment Witness Jh plain “dishonesty and false state ment,” trial, government

At means “crimes perjury, called such as testify Columbus L. to regarding Smith perjury, statement, subornation of false Appellants’ repeated failures rectify fraud, embezzlement, criminal pre or false sewage of raw overflows from a ditch at tense, any or other offense in the nature of Daywood the Donovan Woods and Subdivi crimen commission which in falsi sion. In response, Appellants sought to deceit, volves some element of untruthful impeach testimony Smith’s with evidence ness, or bearing falsification on the [wit larceny he was convicted 2004 of a propensity testify ness’s] truthfully.” violation of 18 U.S.C. The dis 609, advisory committee’s note Fed.R.Evid. trict court ruled that Appellants could not (internal omitted). quotation marks The question Smith about this conviction be notes direct a court to consider “the statu cause larceny is not a “crime of dishones tory elements of the crime” to determine ty” under Federal Rule of Evidence whether it dishonesty is “one of or false 609(a)(2). Appellants now contend that statement.” Id. Where the deceitful na they should have permitted been to cross ture of the crime is not apparent from the subject. examine Smith on this We con statute and the face of judgment, “a clude that properly the district court pre proponent may offer information such as cluded such cross examination. indictment, an a statement of admitted 609(a)(2), Rule applies which when a facts, jury or instructions to show that the party seeks to “attaek[ ] witness’s char- find, factfinder had to or the defendant acter for truthfulness evidence of a admit, had to dishonesty act of or false conviction,” criminal provides any that “for statement in order for the witness to have crime regardless of the punishment, been convicted.” Id. evidence must if be admitted the court can readily establishing determine that the ele- statute under which Smith was con- ments of required victed, the crime proving provides: 18 U.S.C. —or 9. The only 1990 amendments made two be relevant here. See Fed.R.Evid. advi- changes to sory Rule neither of which we find committee's note. steals, D. Juror embezzles, Replacement or purloins, Whoever the use his use or converts to knowingly trial, day the fifth of the Juror On sells, another, authority, or without informed the court that his car had No. 8 record, any disposes of conveys or and he had no alternative broken down voucher, thing fifty or of value money, transportation means of to make the to the court trip or mile from his residence any department or of United States juror’s transportation prob house. The thereof, made or any property or agency were in a conference call lems confirmed the Unit- under contract for being made Although and counsel. court agency or any department ed States initially suggested that a U.S. mar court punished.] .... be [shall thereof juror could drive the to and from the shal jury pattern criminal The Fifth Circuit courthouse, objected counsel be defense of theft state the elements instructions appear cause such a transit method could prop- as follows: under section this replaced The court then “heavy-handed.” “belonged to United erty at issue the juror an alternate. Defense the with coun in had a value ex- government well, and arguing objected sel to this as (2) $1,000 alleged;” underway, the and at the time the trial was well alterna cess of ar transportation could have been tive for his own property stole the defendant ranged. appeal, Appellants On contend another; “defen- and the use or of use juror perform” not “unable to that the was was not knowing property the dant did so provided by Federal of his duties Rule of his, deprive to the owner and intent 24(c), Procedure and the Criminal district 5th [property].” ... of the Cir. the use in abused its discretion court therefore § Jury Instructions 2.38. Pattern Criminal dismissing juror. the defined as “the “convert” is “Steal” or money 24(c)(1), or be- wrongful taking property to Rule a Pursuant jurors may “replace any court who deprive district another with intent to longing to are perform disquali unable to or who are tem- of its use or benefit either the owner their duties.” performing fied from Fed. light of permanently.” or Id. porarily 24(c)(1). “A district court’s deci R.CrimP. instructions, statutory jury the text discretionary juror a is sion to remove was convicted the crime for which Smith judge becomes convinced whenever the act or false does have “a dishonest not perform his juror’s the abilities to Appel- Nor as an element. do statement” impaired.” United States become[ ] duties manner the which argue lants (5th 265 F.3d 288 Virgen-Moreno, out his offense dis- Smith carried involved Cir.2001) (citation quotation and internal there- a statement. honesty or false We omitted). Further, the “[u]nless marks to Rule that the fore conclude amendments juror prejudiced the has court’s removal this departure warrant a from 609 do not defendant, will not [this court] the disturb larceny that the crime precedent court’s court’s decision.” Id. Such the [district] 609(a)(2). under Rule admissible juror “if dis is found was prejudice Entrekin, See, e.g., United States a support factual or for charged without (5th Cir.1980) (shoplift- 598-99 F.2d (citation reason.” Id. legally irrelevant Howard, F.2d at 358-59. ing); omitted). internal marks quotation properly ruled case, juror’s transportation The court thus district In this not ad- in a conference prior conviction confirmed problem that Smith’s was objected 609(a)(2). call, counsel and defense Rule missible under Ollison, proposed resolution. Without a vi- States v. court’s Cir.2009). transportation to the court- significant able means We define facili- house, juror perform” by was “unable to tation considering “whether the defen- 24(c). The dis- occupied superior position, his duties. Fed.R.Crim.P. dant relative therefore within its discre- to all people position trict court was to commit the juror offense, replace job.” tion to excuse the him as a result of her Kay, with an alternate. States v. Cir. 2007) (citation quotation and internal Sentencing E. Enhancement omitted). marks application notes ac- companying explain: 3B1.3 sentencing, At court district guideline range included in Pruett’s a two- adjustment For apply, posi- this pursuant level enhancement to U.S.S.G. public private tion of trust must have 3B1.3, finding that Pruett a posi abused significant way contributed in some in a private tion of trust manner facilitating the commission or conceal- specifically facilitated commission or by ment of the (e.g., making offense appeal, concealment of the offense. On detection of the offense or the defen- argues Pruett that the district court erred responsibility dant’s for the offense applying difficult). this enhancement. He con adjustment, more This position private cedes that he held example, applies in the case of an em- president trust as and chief executive offi bezzlement of a client’s funds at- Management, cer of LLWC and LWC but torney serving a guardian, as a bank ex- argues that position he did not abuse this scheme, ecutive’s fraudulent loan or the in significantly a manner that facilitated criminal patient sexual abuse of a by a the commission or concealment of the off physician guise under the of an exami- ense.10 nation. 3B1.3, § U.S.S.G. cmt. 1.

A application “district court’s of sophisticated section 3B1.3 is a factual de We have found the second element of appellate § termination that [an court] re 3B1.3 to be satisfied where the defen- for clear error.” United position view[s] States v. dant’s made the criminal conduct (5th Miller, 144, 147-48 Cir.2010). 607 F.3d perform easier to or where it facilitated his 3B1.3, See, Miller, § Under in U.S.S.G. two-level crime. e.g., 607 F.3d at 150 (“Miller permitted crease in offense level is if argument “[1] offers no that her posi- position public the defendant abused a of tion the owner of [as a licensed durable or private trust, or used a special skill, ^[2] medical equipment provider] did not facili- in a significantly manner that facilitated offense; tate the commission nor she, the commission or concealment of the of could position since it was her as the 3B1.3; § fense.” U.S.S.G. see United owner ... that enabled her to defraud the 10. The district court based president its determination that a and chief executive officer of upon Pruett’s role as the "sole officer and company occupies position of trust for [Manage- shareholder ment],” LLWC and LWC purposes §of 3B1.3. See United States v. permit as well as his status as a “ Dahlstrom, 1999). 180 F.3d Cir. private holder. 'Public or trust’ refers to a challenge Because Pruett does not the district position public private or trust character- issue, findings court's on this we need not by professional managerial ized discretion consider whether Pruett’s status aas NPDES (i.e., discretionary judgment substantial permit position holder also satisfies deference).” ordinarily given considerable requirement. trust 3B1.3, § U.S.S.G. cmt. 1. We have found falsifying reports .... More- way and such programs with insurance government Reeves, over, high-level position respect his with ease.”); States United Cir.2001) (“Only after of wastewater treat- public to his function 212-13 by posing as ment, way clients’ trust in significant his some gaining contributed them to advise planner [Reeves] did facilitating estate the commission of his of- company. Had fense.”) (citation codefendant’s invest in his quotation and internal trust, the position occupied omitted). he marks not have fol- would presumably clients case, In this the district court did not Moreover, advice. investment lowed his concluding in that Pruett clearly err used that Reeves’s evidence there is substantial and position president his as the chief unique gave him planner as estate position Man- executive officer of LLWC and LWC information, fa- financial clients’ access to agement to facilitate the commission of the schemes.”). fraudulent cilitating his correctly district court rea- offenses. The appli- affirmed circuits have Other was the sole “boss” of soned Pruett 3B1.3 enhancement cation of Management, and con- LLWC LWC Snook, 1319 cases. In- “all aspects trolled businesses.” (7th Cir.2004), the F.3d 439 defendant deed, position, Pruett had discretion his manager of Clark environmental was an should be undertak- to decide what efforts Inc., a Marketing, petroleum & Refining permit obligations. his comply en to “given position in this refinery, and responsible overseeing Pruett was also wastewater to devise Clark’s discretion testing sys- his facilities’ treatment testing systems, well as treatment tems, maintaining accurate as well as for testing.” when to conduct such to decide LDEQ and EPA Although the records. water Although the local Id. at 445-46. they de- inspections, own conducted their own its “periodically conducted] district part upon Pruett moni- pended large part depen- the most testing, it was for position operations. own Pruett’s tor his reported,” the data that Clark dent on therefore facilitated his offenses. We thus waste- years three Clark’s and for “over did not the district court conclude that violations went numerous water had § 3B1.3 en- clearly applying err in Snook, unique in his because undetected hancement. Manager, did as Environmental position at 446. The Sev- report them.” Id. F. Fines concluded, the re- “[g]iven enth Circuit to Snook given and discretion sponsibility following imposed court The district Manager as Environmental position

in his jointly and sever- Appellant, fines on each regula- complying with the District’s (2) $300,000 $310,000 Pruett, for ally: tions, position, his abuse of and (3) $240,000 LLWC, for and LWC for applying did not err district court object to these Appellants Management. Id.; Unit- sentencing increase.” see also grounds. fines on various Kuhn, 431, 437 v. 345 F.3d ed States un- sentencing decisions for “review We Cir.2003) (“[I]t 3B1.3] is clear that the [§ Booker, United States reasonableness.” Kuhn properly applied. was enhancement 125 S.Ct. 543 U.S. employee, charged a government (2005). flexible, the “Though L.Ed.2d 621 a waste- operation and efficient the safe is not unbounded. standard reasonableness He was con- operation. water treatment -Booker post court’s sen- Both a district sewage sludge knowingly causing victed of the reasonableness tencing water- discretion discharged navigable into a to be $15,000 must be inquiry appeal guided by on fine for those dates instead of the $20,000 sentencing considerations set forth in 18 imposed fine for the other dis- 3553(a),” Smith, § charge U.S.C. dates. It was reasonable for the Cir.2006), as well as district court Appellants’ decline re- 3572(a). § quest the factors under 18 U.S.C. even lower fine. Appellants contend, find, do not nor do we that the 1319(c)(2), § a may Under court fines were unreasonable under the statuto- $5,000 impose a fine of “not less than nor ry 3553(a)(2), §§ factors. See 18 U.S.C. $50,000 day per more than of violation.” 1319(c)(2). 33 U.S.C. district court sum, we hold that the imposed fines $10,000 imposed per knowing a fíne upon Appellants were reasonable. violation, $60,000. records for a total of argue they Pruett and LLWC should III. CONCLUSION not have been fined six different times for above, For the reasons Appel- stated violation, the same records and that lants’ convictions and sentences are imposed district court should have ($5,000) minimum statutory per violation AFFIRMED. $10,000. conclude, rather than We howev er, PRADO, that the district court’s fine Judge, was rea Circuit concurring: 1319(c)(2) sonable. Section authorizes I separately write to discuss the court’s violation,” imposed “per day fine to be review of the district application court’s 1319(c)(2), 33 U.S.C. and the district the two-level abuse-of-trust enhancement court in imposing therefore did not err six to Pruett’s sentence under U.S.S.G. separate corresponding knowing fines § 3B1.3. violations at separate six facilities. Standard of review frequently viewed Further, the record demonstrates that the cursory as a precedes statement fully court statutory considered the factors analysis court’s of the relevant issues on 3553(a)(2) provided by §§ 18 U.S.C. appeal. But the maxim that “standard of 3572, and the fines are not unreasonable review decides cases” is crucial to under light of those factors. The choice between standing the actual work of an appellate $5,000 $10,000 fine was well within court.1 As Childress and Davis have writ the district court’s discretion. ten in matter, their seminal treatise on the Appellants also argue that the dis “Although standards of review often are trict imposed court should have baldly the statu stated without explicit reference to tory minimum respect days with to four of degree deference, relevant of defer knowing effluent limitation always violations at ence is the underlying notion.” plant, the Love Estates rather than a Stephen Alan Childress & Martha S. $15,000 fine, per day Davis, because the violations 2 Federal Standards of Review (4th for days ed.2010). those would § not have constituted 7.02 Viewed from the op permit violations under new posite coin, issued after side of the “a review standard charged the incidents in the indictment. positive authority describes appel disagree. We The district court consid late court wields in its review function.” Appellants’ arguments ered regarding § Id. 1.01. Given importance its crucial in permit, response new and in imposed a the scheme of how appellate court case, 1. Oddly enough standard, in this the relevant any § stan- cause under Pruett's 3B1.3 consequence dard of review is of little upheld. be- enhancement would be

251 [Ehrlich, at De 902 F.2d prop- 330.] neous.” works, inattention to the court’s this persuasiveness Kay spite whatever sentencing en- review of for er standard have, rule of orderli may our Sudeen inattention troubling. is Such hancements panel that “‘one of this ness directs troubling upon more rendered even the decision of court cannot overrule of our fed- goal that a central recognizing ” [Lowrey v. Tex. A&M panel.’ another provide for regime is to sentencing eral (5th 242, 117 247 Cir. Sys., F.3d States, Univ. Koon v. United uniformity. See 1997).] 2035, 81, 113, 135 116 S.Ct. 518 U.S. (1996); omitted). States v. Gon- (footnotes Therefore, 392 United

L.Ed.2d Id. Cir.2010). (5th 601, calves, F.3d 608 613 in used the court standard of review one,2 the correct this case—clear error —is chal the enhancement pertains it As 248, on Op. Per Curiam based supra see case, in United by Pruett this lenged controls, see Matter How earliest case of intra-cir acknowledged the v. Dial States (5th Cir.1992). ard, 639, 641 972 F.2d of appropriate standard split cuit as to the § in context of 3B1.3 just It is not § 542 3B1.3 enhancements. review that we have been inconsis- Cir.2008). enhancements (5th 1059, 1060 F.3d of review for Guide- tent our standard error the district for clear We review previously I have lines enhancements. 3B1.3 application court’s split intra-circuit as to written about the facts, including its factual determination that [U.S.S.G.] the determination “whether trust. See position that Dial held justice] require- [obstruction 3Cl.l’s 884, Smith, F.3d v. 203 States United of fact” or question ... a ments are met is (5th Cir.2000); v. United States 893 correspond- of law and what the question 327, Ehrlich, Cir. 902 F.2d 330 question of review is—a ing standard 1990). recently applied de This court split. an inter-circuit produced has also the defendant to whether novo review Claiborne, v. 676 F.3d States See United of trust. See United position held a (5th Cir.2011) (Prado, J., 434, n. 1 Kay, v. States framed, the issue is Broadly concurring). denied, Cir.2007)[, cert. U.S. adjustments under Section 3 whether (2008)]. 172 L.Ed.2d 129 S.Ct. of law re- questions are the Guidelines at 460 & n. Kay, 513 F.3d panel The fact re- questions de novo viewed Sudeen, on States v. relied United error. viewed for clear (5th Cir.2005), 384, 391 n. 19 its statement on United States which based First Circuit (2d (1st Cir.2009), Sicher, nicely Hussey, 254 F.3d 576 F.3d 64 (and Cir.2001), observing uncertainty split that the stan after summarizes circuits) its deci of sen would not affect in this area amongst dard of review law, specific reference sion. tencing § 3B1.3 enhancements. foreclosed, how appears review De novo language of “de used the we have ever, ruling earlier While by this circuit’s judge’s a trial apply § novo” review 3B1.3 application court’s a “district facts, we think from the legal conclusion factual determination sophisticated ais question of law more like a mixed clearly this is unless erro that will be affirmed See, is, however, applied de novo review. post-Dial has noting Dial has worth It 166, Carr, Fed.Appx. up in this circuit e.g., cleared all confusion 303 States United review for proper standard of Cir.2008). about the (5th 170 enhancements, panel as at least one 3B1.3 252 fact, sliding with a scale Fisher, (5th of review 69, States v. 7 F.3d 70-71

depending on whether the trial judge’s Cir.1993))); United States v. Thorn cf. conclusion is more law-oriented or ton, more (9th 1221, 511 F.3d 1227 n. 4 Cir. Recently Circuit, fact-driven. 2008) D.C. (“Before Booker, we reviewed the recognizing that it had used different application of the abuse of trust en review, standards of stated that “insofar hancement —a question mixed of law and applied as the district court the ‘abuse of fact—de novo ... Although the same trust’ Guideline facts of de [the standard of may review well apply after case, due deference ap fendant’s] is the Booker, we need not decide the issue.” propriate standard of review.” United (citation omitted)). * Tann, 868, States v. 532 F.3d 875 n. Id. at 70 n. 6. (D.C.Cir.2008). Keeping the principles of deference that they Several circuits state that review undergird mind, standard of review in application of the Guidelines de novo district court’s determination that a defen- and the district findings court’s factual dant abused a position of trust or obstruct- for clear error. Spear, United States v. justice ed seems to be jury’s similar to a 1150, (10th 491 Cir.2007); F.3d 1153 determination of a guilt. defendant’s The Andrews, 476, United States v. 484 F.3d jury given is a set of legal principles to (7th Cir.2007); 478 United States v. they which must apply the they facts as Thunder, Brave 1062[, 445 F.3d 1065] find them. This is the same sort inqui- (8th Cir.2006); United States v. Eber- ry that the district court conducts: finding sole, (4th 517, 411 Cir.2005); F.3d 535-36 (in facts and then applying the law sen- Britt, 1369, United 388 F.3d Guidelines) tencing, to those facts. (11th Cir.2004) 1371 (per curiam), vacat- Cisneros-Gutierrez, See United States v. 930, ed on grounds, other 546 U.S. 126 (5th 751, Cir.2008) (“[A] 517 F.3d 764 dis- 411, (2005); S.Ct. 163 L.Ed.2d 313 see trict interpretation court’s or application of also Brogan, United States v. 238 F.3d Sentencing Guidelines is reviewed de Cir.2001) 783 (reviewing de novo, and its factual findings are reviewed novo decision of a district court to apply (internal for clear error.” quotation marks 3B1.3). omitted)). ellipsis Other circuits have framed the standard hybrid The nature of process this review differently. somewhat See reflected in the Dullum, standard of review for States v. 560 F.3d (3d Cir.2009) (district convictions a jury. In reviewing the court’s deter- sufficiency of the mination evidence supporting that defendant a occupied posi- jury’s verdict, tion novo; apply of trust we reviewed de deferential vari- ant of de novo court’s determination review. Our review defendant is de novo, but position abused that we evidence, view all of the manner that significantly resolve all credibility determinations, facilitated the offense is a question of fact make all reviewed for reasonable clear er- inferences in favor of ror); Hirsch, jury United States v. verdict. F.3d United States v. Wink- (2d Cir.2001) ler, (same); Cir.2011). see also Ollison, United States v. deference is accorded because of jury’s (5th Cir.2009) (“The application of fundamental role in our criminal justice ... 3B is a sophisticated 1.3 system. factual Apprendi See v. New Jersey, 530 determination 466, 477, reviewed under the 2348, clear- U.S. 120 S.Ct. 147 L.Ed.2d ly erroneous (2000). standard.” (quoting United 435

253 that the dis- recognition tencing and the sentencing judge jury, Similar afforded some should be trict courts criminal in our position special holds a to guidelines flexibility applying v. Book States See United system. justice them. the facts before 738, 265, 125 249-55, S.Ct. 220, er, 543 U.S. (2005) (discussing the Kim, L.Ed.2d assessment (D.C.Cir.1994); also Gall v. United for individualized see

need determining 38, 51, that Guide States, 552 U.S. S.Ct. judges before mandatory); see the stan- (describing as operate L.Ed.2d 445 could not lines outside Koon, 116 S.Ct. review for sentences dard of 518 U.S. also being for ranges in the advisory Guidelines (“It and constant uniform has been deference”). sentencing for the “due tradition judicial federal person every convicted consider judge to court, consisten- We, bring need to as a unique every case as individual sentencing as an review of logic our cy and to sometimes failings that in the human study approach The scattershot enhancements. the crime magnify, sometimes threatens mitigate, this realm we have taken that ensue.”). aAs grap- punishment adequately uniformity and the and does (for years), nineteen of deference judge issues district the difficult ple former with an individualized the law. that such in this of present well area I know justice crucial to ensure is assessment sentenc of federal component a central

is However, determina insulating such

ing. clear error such as

tions with standard uniformity because goal

undercuts the clear error the determination often BENDER; Lampe; Caro Don Willard review functionally foreclose will applies Roger Taylor; Connor; lyn James Therefore, consistent by this court. individually Rohr, Smoker; Ann Rose questions as of these description Sickens and all of themselves and on behalf fact,” 576 law and question[s] situated, “mixed similarly Plaintiffs- persons to revisit ought we n. I think at 70 Appellees, apply to en we of review the standard United Automobile Union International hancements, under 3B1.3. like Implement Agricultural Aerospace and crafted so, has the D.C. Circuit doing In Plaintiff, (UAW), of America Workers of what standard articulation the best deference. be: due of review should FURNISHINGS, WINDOW NEWELL review, standard Operat Division; INC., Newell Kirsch trichotomy: purely Congress crafted Inc.; Newell ing Company, novo; de are questions reviewed legal Pro Health and Welfare Rubbermaid un- affirmed are to be findings factual Defendants-Appellants. gram erroneous”; we are to “clearly less 11-1335. No. to the district “due deference” give guidelines application court’s Appeals, Court United States presumably deference” facts. “Due Circuit. Sixth de between somewhere meant to fall 10, 2012. April Argued: erroneous,” a stan- “clearly novo and 3, 2012. May Filed: Decided and apparent review reflects dard of compromise be- desire congressional uniformity in sen- the need

tween

Case Details

Case Name: United States v. Pruett

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 15, 2012

Citation: 681 F.3d 232

Docket Number: 11-30572

Court Abbreviation: 5th Cir.