USA v. Technic Services Inc et al

Filing 198

Order on Motion for Miscellaneous Relief

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
RICK RUSHING
[D-02]
)
)
Defendant.
)
___________________________________)

No. A00-0023-CR (HRH)

O R D E R
Motion for Resentencing1
Defendant Rushing moves for resentencing pursuant to
United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005).
motion is opposed.

The

The court perceives no need for oral argument

on this matter.
Defendant Rushing was charged in a federal grand jury
indictment with one count of violating the Clean Air Act, 42 U.S.C.
§§ 7412(f)(4) and (h) and 7413(c)(1), one violation of the Clean
Water Act, 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A), and seven counts
of

obstructing

proceedings

18 U.S.C. § 1505.2

before

departments

and

agencies,

After a jury trial, the defendant was convicted

1

Clerk's Docket No. 189.

2

Clerk's Docket No. 1.
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of all the foregoing charges. Defendant was sentenced to a term of
imprisonment (which, by the time of the instant motion, had been
served in full such that the defendant is now on supervised
release) and was fined $520,000.00.3

Although the judgment did not

specify that the fine was imposed under the Clean Water Act, the
court's personal notes as well as the presentence report make it
clear that that sentence was imposed with reference to 33 U.S.C.
§ 1319(c)(2)(A). That statute authorizes (some would say requires)
a minimum fine of $5,000.00 per day of violation up to $50,000.00
per day of violation.

Rushing appealed, and the Ninth Circuit

Court of Appeals affirmed except as to Count 8 (one of the
obstruction counts) which was reversed.

The fine imposed upon

defendant was expressly affirmed, but his sentence of imprisonment
was vacated and the case remanded for reconsideration in light of
the circuit court opinion.

United States v. Technic Services,

Inc., 314 F.3d 1031, 1053-54 (9th Cir. 2002). On remand, the court
imposed the exact same sentence of imprisonment and fine for
violation of the Clean Water Act. Defendant took a sentence appeal
— which appears to have been focused upon the term of imprisonment
— that was pending when the Ninth Circuit Court decided Ameline.
The case was again remanded to this court "for further proceedings
consistent
October

with

19,

United

2005,

this

States
court

v.

Ameline...."4

entered

its

order

By

order

setting

3

Clerk's Docket No. 109.

4

Memorandum Decision at 2, Clerk's Docket No. 183.
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of
out

proceedings to be followed on remand.5

In due course, the instant

motion was filed by defendant and opposed by the Government.
Because

defendant

has

completed

the

service

of

his

sentence of imprisonment, the focus of these proceedings has
shifted from the term of imprisonment to the court's imposition of
a $525,000.00 fine under the Clean Water Act.

Defendant makes

three contentions:
(1)

The fine imposed by the court exceeded
the maximum allowed by law.

(2)

The

court

should

resentence

in

consideration of defendant's ability to
pay a fine.
(3)

The verdict made no specific finding as
to the number of days that the Clean
Water Act was violated.

As set out in this court's order for proceedings on
remand,6 there is but one question before the court at this time.
That question is formulated in the foregoing order.

The court's

statement of the matter before it came directly from Ameline, which
states:
If the district court determines that the
sentence imposed would not have differed
materially had he been aware that the
Guidelines were advisory, the district court
judge should place on the record a decision

5

Clerk's Docket No. 184.

6

Id.
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not to resentence,
explanation. ....

with

an

appropriate

If the district court determines that the
sentence
imposed
would
have
differed
materially if the district court judge were
applying the Guidelines as advisory rather
than mandatory, [the district judge will
vacate the judgment and] will resentence with
the defendant present.
United States v. Ameline, 409 F.3d at 1085.
Defendant's first contention — that the fine imposed by
the court was an illegal sentence — is not properly before the
court under Ameline.
versus

advisory

defendant's

first

The issue has nothing to do with mandatory

Sentencing
issue

Commission

were

properly

contention could be quickly resolved.

guidelines.
before

the

If

the

court,

the

Defendant contends that

18 U.S.C. § 3571 sets the maximum for lawful fines at $250,000.00.
Not

so.

Indeed,

the

very

statute

to

which

defendant

makes

reference expressly provides that the court may fine an individual
"the greatest of – (1) the amount specified in the law setting
forth the offense...."

Here, the law in question is the Clean

Water Act, 33 U.S.C. § 1319(c)(2).

It expressly provides for "a

fine of not less than $5,000.00 nor more than $50,000.00 per day of
violation...."

Defendant's first contention does not comport with

the limited remand of this case and is frivolous on the merits.
Defendant's second contention is that the court should
reconsider its sentence of fine based upon the defendant's ability
(or lack thereof) to pay a fine.

This issue also has nothing to do

with the distinction between mandatory and advisory Sentencing

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Commission guidelines.

Rather, this issue has to do with the

court's expression of willingness to consider remitting some of the
fine that it imposed once defendant's financial situation was
better known and after he was on supervised release.

Defendant is

now on supervised release, but these proceedings are about Ameline
and the remand of this case pursuant to Ameline, and have to do
with the question of whether or not defendant should be resentenced
under Ameline.

The court declines to change the nature and scope

of these proceedings at this time.
Finally, defendant argues that the jury that convicted
him made no specific finding as to the number of days of violation
of the Clean Water Act.7

In the belief that the Government's

evidence supported 104 days of violation(which appears not to have
been contested at sentencing), the court did employ 104 days for
purposes of calculating the fine in this case.

In deciding the

defendant's merits appeal, the court dealt squarely with this issue
and concluded that "[t]he jury ... found that Defendants violated
the Clean Water Act for 104 days...." Technic Services, Inc.,
314 F.3d at 1053.
affirmed on appeal.

The court's sentence of a fine was expressly
Id. At 1053-54.

The issue of who should have made the finding as regards
the days of violation is as close as defendant gets to an Ameline
argument.

Defendant argues that in the aftermath of Blakely v.

Washington, 542 U.S. 296 (2004), United States v. Booker, 543 U.S.

7

See Rushing Verdict No. 2, Clerk's Docket No. 90.
- 5 -

220 (2005), and Ameline, the court should reexamine the conclusion
that there were 104 days of Clean Water Act violation.

But the

court of appeals has already held that the trial jury found 104
days of violation, and whether there were or were not 104 days of
violation really has nothing to do with the distinction between
guidelines which mandate a particular sentence depending on the
facts of the case and guidelines which are advisory as regards
sentences depending upon the facts of a case.

The court concludes

that the accuracy of the finding of the number of days of Clean
Water Act violation is not a matter presently before the court.
Not wishing to figuratively stick its head in the sand,
much less thumb its nose at the good purpose behind Ameline, this
court has seriously rethought the fine imposed in this case based
upon everything the court knows and recalls about the case in the
light of 18 U.S.C. § 3553(a).

Having performed that exercise, the

court concludes that it would not have sentenced differently as
regards the fine in this case had it know that the guidelines were
advisory rather than mandatory.

The court so says for reasons

which are based upon the court's consideration of the sentencing
factors set forth in 18 U.S.C. § 3553(a)(1), (2)(A), (2)(B),
(2)(C), and (3).
First, as should have been apparent to all concerned from
the outset of these remand proceedings, the question of the nature
of the Sentencing Commission guidelines as regards the fine imposed
in this case is irrelevant.
guideline fine.

The court did not impose a pure

The guideline Fine Table range for a fine in this
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case was $7,500.00 to $75,000.00.8

However, the guidelines also

provide for the accommodation of greater statutory fines9 such that
the final guideline range for this case actually became $7,500.00
to

$5.2 million.10

Thus, the fine of $520,000.00 which the court

imposed was not so much a function of the then mandatory guidelines
which would themselves have capped the fine at $75,000.00 as it was
a function of the statute that arguably called for a mandatory fine
of not less than $5,000.00 per day of violation.

In other words,

in fixing a fine, the court really was being guided by the kind of
fine available under the statute, not the guidelines — irrespective
of whether the guidelines were mandatory or advisory.
Second, this court must candidly acknowledge that many of
the cases which it has handled over the years have left no lasting
impression whatever.

In many cases, the court might find it

difficult to say with conviction what it would have done had it
known that the guidelines were advisory rather than mandatory. Not
so in this case, which created a very lasting set of memories about
the defendant and his violations of the Clean Air Act, Clean Water
Act, and obstruction statute.

Defendant's offenses were not the

result of ignorance, inadvertence, or other careless conduct.
Defendant willfully — and with glee as shown on a videotape —
violated federal environmental laws.
8

USSC Guideline § 5E1.2(c)(3).

9

And when his conduct came

USSC Guideline § 5E1.2(c)(4).

10

104 days of violation times $50,000.00 per day equals
$5.2 million.
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under scrutiny, he actively obstructed the investigation, coercing
employees

into

signing

false

statements.

Even

without

consideration of the obstruction offenses, this case involved the
most flagrant violations of environmental laws the court has ever
handled. With the obstruction offenses, defendant's conduct was at
the outer limit of illegal environmental offenses.
Finally, the egregious nature of defendant's offense made
the

need

for

deterrence

and

protection

of

the

public

high

priorities.
In consideration of the foregoing, this court entertains
absolutely no doubt that its sentence of a fine of $520,000.00
would

have

been

the

same

had

it

known

that

the

Sentencing

Commission guidelines were advisory, not mandatory. The motion for
resentencing is denied.
Any appeal from this order must be taken within 10 days.
Fed. R. App. P. Rule 4(b).
DATED at Anchorage, Alaska, this 27th day of January,
2006.

/s/H. Russel Holland
United States District Judge

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