1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ELECTRO NIC CIT

ATION: 2003 FED App . 0348P (6th C ir.) File Name: 03a03 48p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA , Plaintiff- Appellant

,

v.

M ICHAEL J. K

UHN , Defendant-Appellee. X

- - - -
> , - - N No. 02-1031

Appeal from the United States District Court fo r t he Ea st er n D is tr ic t o f M ic hi ga n a t B ay C it y. No. 99-20060—David M. Lawson, District Judge.

Argued: May

6, 2003
Decided and Filed: October 1, 2003 Before: BOGGS, Chief Circuit Judge; GUY and DAUGHTR

EY, Circu

it Judges.

_________________ COUNSEL

ARGUED: J ennifer J. Peregord, UNI TED STATES ATTORNEY, Detroit, Michigan, for Appellant. William A. Brisbois
, BRISBOI S & BRISBOI S, Sag ina w, Michigan, for Ap pellee. ON BRI EF: Jennifer J. Peregord, UNITED STATES ATTORNEY , Detroit , Michig an, for A ppellant

. 2 United States v. Kuhn No. 02-1031

William A. Brisbo is, BRISBOI S & BRISBOI S, Saginaw, Michigan, for Appellee.

_________________ OPINION

_________________ BOGGS, Chief C ircu it Judge. Michael J. Kuhn was sentenced to six months at a halfway house and six months of supervised

release following his conviction for improper

ly discharging

a pollutant into navigable waters, causing an emp loyee to falsify test results in rec ords submitted to t h e gover nment, and signing and submitting a report to the government

that he knew conta

ined fal se te st results. The governm ent now appeals a four-level downward de parture granted by t he distric t c ourt to Kuhn. For the reasons set forth below
, we reverse, and remand the c ase for resentencing.

Kuhnwas the Su

perinte nd en t o f t he Ba y Ci ty, Michigan, Wastewater

Treatment Plant (the Plant). The wastewater that
comes into the Plant goes through a number of stage s before being released into the Saginaw River. On or about August 25, 1996, during the midnight shift, staff at thePlant began cleaning the chlorine contact cha mber, which is the penultima

te stage of the proce ss. The Plant had a National Pollutant Disch arge Elimi nation System (NPDES) permit that governed its opera tion under

the Clean

Wate r Act ( CWA). The plant was obligated

to notify the

Michigan Department of Environm ent al Quality (DEQ) w ithin five days of any accidental spill or

bypass of the

treatment system. At the end of August 1996, sludge from the chl orine contact chamber
was ille ga ll y pumped into a ditch while the chlorine contact cham ber was being cleaned. This was done on Kuhn’s orders. InNovember 1996, Kuhn had the soil from the ditch
ex ca va te d a nd ha ul ed aw ay.No. 02-1031 United States v. Kuhn 3

1 “BOD-5" refers to a test whic h mea sures a wastew ater sam ple’s “Bio chem ical O xygen De man d” o ver a 5 -day p eriod

.
2 Kuhn mainta ins t

hat t he h igh numbers were only for the i nfluent fl ow and tha t th e n umbers for the eff luent f low were in li ne with the

mon thly averages. He the r efore purportedly concluded that the i nfluent flow nu mbe rs must h ave b een inc orre ct. Pursuant to the Plan

t’s NPDES p ermit, the

Pl ant was required to submit mon

thly dischar ge monit ori ng rep orts to the DEQ. As superintendent, Kuhn certified the accuracy

of the information in these reports. The reports contained data

r egarding laboratory f

indings charting both the mater ia l coming into th e Plant (“influent”) and the material being discharged

from the Plant

(“e ffluent”). A Plant technician drewKuhn’s a

ttentio n to very hig

h numbers for BOD-5 1 on a sample drawn Ma

y 3, 1997. Kuh

n asked the techni cian to change the resu

lts, and the technician refused. The technician made a copy of the or

iginal printout, suspecting that the numbers might be altered in the final r eport to the DEQ. Later, another

technic ian gav e the final repor t for the m

onth of May to Kuhn for his review and signature. He told her that the test resu lts for suspended solids, total phosphorous, and BOD-5 for May 3 must be wr ong and asked

her to change the numbers to the averages for the month. She ref used. However, when she chec kedthe final report, the data for May 3 had b een chang ed to the monthly averag es. 2 Kuhn thenasked y

et anothe r te chnici an to cha

nge the test resu lts, whichhe did. Th e techni cian wrote a memo me morial izing the fact tha

t he had c

hange d the test re sults at Kuhn’s direction. Kuhn signed the final, altered report on June 10, 1997, and submitted it to the DEQ.

Kuhnwas subsequently indicted in a four-count indictment that charged: first, that between August 23 and 30, 1996, Kuhnknowi ngl y

caused plant worker s to d ispo se of s ewage slud ge improperly, which resul ted in the sl udge flowing into
a ditch on the plant

property a

nd then into the Saginaw

River,
a navigable waterway

, in violation of 33 U.S.C. § 1345(a) and 4 United States v. Kuhn No. 02-1031

18 U.S.C. § 2; second, that between the same dates he knowing ly

caused the sewag e sludge to be discharged from th e ditch into the Saginaw River, in violation of 33 U.S.C

. § 1311(a) and 18 U.S .C. § 2; third, that on June 9, 1997, he
c aused an employee

to assist in falsifying test re sults that
were included in records that, under the CWA, were required to be fi led , in violation of 33 U.S.C. § 1319(c)(4) and 18 U.S.C. § 2; a

nd fourth , that on June 10, 1997, he signed and submitted to the DEQ a discharge monitori ng r eport, required by the CWA, which he knew contained

the false test results, in violation of 33 U.S.C. § 1319(c)(4).

After a three-week

jury trial, the jury

returned a

verdict of guilty on all counts. Kuhn filed a p ost-verd ict motion for judgment of acquittal. The district court granted this motion inpart, dismissing count two on dou ble je opardy

ground s. The presentence report (PSR) calculated Kuhn’ s sentencing range at 30-37 mont

hs, with a total offense level of nineteen. Th is numb er was reached by finding a base offense level of six for count one (U.S.S.G. § 2Q1.3(a)). The PSR then recommended

two four- level incre ases for specific offense charac teristic s: pursuant to § 2Q1.3(b)(1)(B), due to the offense involv ing a discharge or re lease of a pollutant; and pursuant to § 2 Q1.3( b)(4), due to the of fense i nvol ving a disch arge without a permit or in v iolation of a permit. The PSR recommended two additional two-level inc r eases: pursuant to § 3B1.1(c ) for Kuh

n’s role as an organizer, leader, manager, or su pe rv is or in a c ri mi na l a ct iv it y; and pursuant to § 3B1.3 due to his abus e of a position of public trust in a
manner tha t significantly f

acilitated the commission or concealment

of this offense. This resulted in a recommended adjusted offense level of eighteen f or count one.

For counts three and four, the PSR rec om mended a base offense level of six (§ 2Q1.3(a)) with the same two increases for leadership role and abuse of a position of publ ic trust. This resulted in a recommended adjusted offense level of ten for counts th r ee and f our. Acc ording t

o the gr ouping r ules, found at § 3D1.4 , one off

ense lev el was added to the groupNo. 02-1031 United States v. Kuhn 5

with the highest adjusted offense level. The refore, the recommended

combined

adjusted offense level was nineteen.

At th e sentencing hearing, the defense objected to th e addition of the inc

reases for the two specif

ic offe nse cha ra cteristi cs. The court overruled this objection, finding that application of the two specific offense charac teristic s did notc on stitute double-counting. Next, the government
o bjected to the PSR’s omission of its requested 11-lev e l enhanc emen tpursuant

to § 2Q1.3(

b)(2) be cause the offen se resulted in asubstantial likelihood of death or serious bodily in ju ry. The court ov e rruled the government’s objection. Next, the government objected to the PSR’s failure to include
a two-leve l increa se for ob struction of justice , pursuan

t to § 3C1.1 and application note 4(b), based on Kuhn’s false testimony given a

t tr i al. The court overruled the government’s objection.

T he defense

did not obje ct to the tw

o two-lev el in crease s for Kuhn’s leadership role and abuse of a position of pu blic trust. The defense, however, did move for a downward adjustmentor departure, based on § 2Q1.3, application notes 4 a nd 7, which advise the court that upward and downward departures are appropriate depending up on the harm or risk associated

with the offense. The court departed downwa rd t wo levels with regard to each offe nse characteristic, for a total of four levels subtracted from theadjusted offense level for count one. The court explained that testing of the affected
areas did not indicate any pre sence of PCBs, that the chlorine contact chamber was the last stage that polluted water reached before it was re leased i

nto the en

vir on ment, and that there
were serious questions in the court’s mind “as to whether any of th e contents of that ditch ever made it into the Saginaw River.”

At this point, the adjusted offense level for count one stood at fourtee n. The co

urt then c alc ulatedthat, pur suant to § 3D1.4, tw o levels were to be added to that for grouping purposes

. This re sulted i n a combined offense level of 6 United States v. Kuhn No. 02-1031

sixteen. The defense then moved for a downward

departure based on Kuhn’s acts of a charitable or public service nature within the community.

The cour t denied the motion, b

ut went on

to state that it doubted that a 21- to 27-month term of incarceration “serves the ends of justice i n this cas e.” The court sta ted that it quest i oned

the two two-level adjustments for role in the offense and abuse of a position of pub li c tr ust . It stated that “the offense

in this case did not necessarily entail an abuse of trust that was separate and apart from the de fendant’s position that permitted him to be a

leader or organizer of the activity .” Therefore, the court

concluded, scoring the two adjustmen ts ina single case constituted an over-counting. Moreover, the
cour tstated tha

t, althoug h apply ing the t wo speci fic offe

nse chara cteristics did not constitute double-counting, it “put undue weight on the of

fense charac

teristic s for this s

pecific offense,” because the offense for which K uhn was convicted consisted of a single discha

rge. T he court also note d that it felt that the sentence in the case ought to be fashi oned a round the fac t that the di scharge inthis case resulted from

essentia lly a single incident that occurred over a day

or two, and was motivated by the defendant’s desire to make the plant more ef fic ient so that it would pe

rform the fu nction of enhancing the environmental qua

lity as oppose d to deg

rading it. Therefore, the co urt d eparted downward by four additional levels.

Inits judgment, the court added more reasons for g ranting the additional four-level downward departure, indica ting that “[t]he c irc umstances of this case, including the defendant’s motivation and purpose, takes this case out of the ‘heartland’ of offenses contemplated by the Sen t encing Guidelines.” First, the cour

t reiterat ed th at Ku hn “w as mo ti va te d b y a desire to clean up and improve the eff i cient operation of the Bay City Wastewat

er Trea tment Pla nt.” Apparently, the

courtNo. 02-1031 United States v. Kuhn 7

3 Th e ini ti al f

our- leve l down ward depa rture, purs uant to § 2Q1.3, app lication n otes 4 and 7 , was a gu ided dep arture. concluded

that Kuhn

was takin

g a sh ortcut, e

ngag ing in conduct not authorized by

the permit issued to the plant, and violated the Clean Water

Act in so doing. The court went on to say :
Giventhe defen dant ’s backg round, ho wever, his leng

th of service in the area of public waste mana gement, and other minor

factors such as his community involveme nt and exemplary

persona l r e cord of achievements in the
co mm un it y, t he Court finds credible the defendant’s professed m ot ive that the efficient, pollution-free operation of the Bay

City Wastewater Trea

tment Plant was his ult

imate g oal. Therefore, the court imposed a sentenc e based on offens e level twelv e a nd a criminal history ca tegory of I. Kuhn was sentenced to six mo nths at a halfway house, six months of supervised release, and the minimum fine of $6,000. The government filed a timely notice of appeal, appealing the unguided four-level downward depa rture. 3 It fi

rst argues that the district court gave no noticeto the government of its intention to depart

on the bas is of Kuhn ’s role in the off ense and abuse of a

position of

public tru st enhanc ements, nor on the basis of the appl icati on of the s pecific offense enhanc ements of § 2Q1.3. The government argue s that even if it had received proper notice, t he downward departure on thesebases was improper. Finally
, the gov ernment argues that the additional reasons for the downward departure added inthe district court’s judgment were not supported by any fac tu al bases and are discourage d factors for downward depa rt ures under the sentencing guidelines, and tha t the district cou rt did not give notice of its intent to depart downward on these bases. 8 United States v. Kuhn No. 02-1031

We review a district

court’s decision to gran t a downward departure for an

abuse of discretion. See United States v. Reed
, 264 F.3d 6 40, 646 (6 th Cir. 2001 ) (citing Koon v. United States , 518 U.S. 81, 100 (1996)). A sentencing court may impose a sentence outside the guidelines rang e o nl y i f the court finds “that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consider

ation by th e S entenci

ng Commiss ion in formulating the guideli

nes . . . .” U.S.S.G. § 5K2.0 (quoting 18 U .S.C. § 3553(b)). A district court abuses its discret io n when it f ails t o gi ve notice of its intention to depart. See Burns v. United States , 501 U.S. 129, 135 n.4 (1991); United States v. Yang , 281 F.3d 534, 547 (6th Cir. 2002). The districtcourt departed downward based on three r easons. We consider the validity of these reasons separately

below.

1. Departur

e based on enhancements for

Kuhn’s role

in the offen se and abu

se of a posi tion of publ

ic trust.
The district court

failed to give notice to the government of its intention to depart on this basis. Rule 32 of the Federal Rules of Cr

iminal Proc edure pr

ovides tha

t:
Before the court may de part from the app lic able sentencingrange on a ground not identified for departure either in th e prese ntenc e repor t or in a party's prehearing submission, the court mus t give th e partie s reasonable notice that it is contemplating such a de partu re. The notice must specify

a ny g round on w

hich the c ourt is contemplating a departure.

Fed. R. Crim. P. 32. The district court’s failure to notify the government

that it was planning to de part on this basis was
error. See Yang , 281 F.3d at 547.

Even if the district court had given the governme nt notice, the d ownward departure based on these e nhancements was improper. During the sentencing hear ing, defense co unsel conceded, and the di s trict court fo und, that b othNo. 02-1031 United States v. Kuhn 9

enhanc ements were proper in this case. However, the district
cour tstated that the enhancements, if applied cumulatively , over-counted

be ca use “the offense in this case did not
necessa rily entail an abuse of trust that was sepa rateand apart fr om the defendant’s position that permitted him to b e a leader or o rga nize r of the activity.”

In its judgment, the districtcourt added to its rat iona le, stating that the abuse of trust enhance m ent should be discounted because “a significant

number of members of the general public did not
en j oy a beneficial or quasi-fiduciary relationship with the defendant in his role as a public servant.”

The abuse of

a positi o n of public trust enhancement “applie s to persons who abuse their positions of trust . . . t o facilita te signific antly

the commission or concealment of a crime.” U.S.S.G. § 3B1 .3, c ommen t. (ba ckg ’d.) . “[A position of public or priva te trust is] characterized by professional or managerial discretion ( i.e. , substantial discretionary

judgmen t that is ordina

rily given c onsidera

ble de ference).” Id. at comment. (n.1). As the district cou r t impliedly found when it applied the enhancemen t, Kuhn satisfie d these e lements.

The distr ict c ourt’s re asoning that the a

buse of tr

ust enhancement

should be discounted bec ause “a significant number of me mb er s o f t he ge ne ra l p ub li c d id no t e nj oy a beneficial or quasi- fiducia ry relation sh ip with the defendant inhis role a s a public

servant” is invalid under our opinion in United States v. White
, 270 F.3d 356 (6th Cir. 2001). There
we held that “the gener al public may be victims of a government

employee’s c

rimes for purpos es o f deciding whether the employee’s

sentence may

be enhanced pursuant to § 3B1.3.” Id. at 371. T he de fendant in White was a gener al superintendent at a drinking water trea tment plant who was convicted of filing false repor ts. Although the question there was whether the enhancement

should app ly to White, while here we are reviewing a downward d eparture after the enhancement has already be e n applied, the court’s ho lding is relevant here. The district court’s statem ent i n 10 United States v. Kuhn No. 02-1031

departingdown ward s eems to indicate that it believes the enhancement

should not have been applied. If th is is the case, thenthe district court should not have applied the enhancement

in the fir st place . Howeve r, it i s c lear that the enhancement

was properly

applied. Kuhn was a government employee, charged with the safe and e ffici en t operation of a wastewater

treatment operat ion. He was convicted of know ingly

causing sewage sludg e to be discharged into a navigable waterway

and falsifying

reports. The statutes that
were violated

were in p lace toprotect

the general public from this sort of

activity. I

t is difficult to see how members of the general public were not in a beneficial re lati onship with Kuhn, as signi fic ant numbers of the public depended upon Kuhnto prevent or ameliorate water pollution in the area. Moreover, his high-level position with respect to h i s public functionof wastewater treatment, “con trib uted in some significant

way to fac ilitating the commission” of his offense. U.S.S.G. § 3B1.3, comment. (n.1).

The aggr avating role enhanceme

nt “incr ease[s] the

offense level based upon the size of the criminal organization . . . and th e d egree to which the defenda nt was responsible for committing the offen s e.” U.S.S .G. § 3B1 .1, comme nt. (backg’d.). It gener

ally addresse s a defen dant’ s relative responsi bility for the crime. Again, the distri c t court found that Kuhn s atisfie d these elements when it applied the enhance ment

. The ag grava ting rol e enhancement r

elates to Kuhn’s role as a supervisor over others in the operation of the Plant. Kuhn d ire cted others to discharge the contents of the chlorine contac t cha mber into the ditch, and directed technicians to change test results. Applying these two enhancements cumulatively does not “over-count,” as each enhancement haselements that are not
necess ary for the determination of the other. I n White , this court addressed the appropriateness of appl ying both a leader ship and an abuse-of-trust enhan c ement. See White
, 270 F.3d at 3 71-73. The district court in White applied the § 3B1.3 enhancement solely because it found

the defe ndantsNo. 02-1031 United States v. Kuhn 11

used a specia l skill in committing their offenses. Id. at 370. When it d eclined also to apply the e nhancement because of the abuse of a position of public trust, the district court foreclosed the government from seeking an agg ravatin g role enhancement

under § 3B1.1. Ibi d. (citing § 3B1.3 “ if this adjustmentis based s olely on the use

of a special skill, it may not be emp loy ed in

addition to

an adjustment under § 3B1.1 (Aggravating

Role).”) We reversed, and

remande d the cas e to the dis tri ct court , direct ing that it apply the abuse -of-tru st enhancement

and to “consider the propriety of also enhancing White’s sentence pursuant to Section 3B1.1.” Id. at 373.

“Absent an instruc tion to t

he contrary , the adjustments from different guideline sentences are app lied cumu latively (added together).”U.S.S.G. § 1B1.1, comment. (n.4). As the district court found that Kuhn satisfied the requirements for the enhanc ements, it was an abuse of discretion to find that the applicationof

the enhancements together constituteddoublecounting and therefore merited a downwar d departure. A sentencingcourt may impo se a sentence outside the gu i delines range only

if the court finds “that there exists an aggravating

or mitigating circumstance of a kind, or to a degree, not adequately ta k en in to consideration by the Sentencing Commission in formulating the guidelines . . . .” U.S.S.G. § 5K2.0 (quoting 18 U .S.C. § 35 53(b)). It is clear that the SentencingC ommission took into consideration the applicationof two or m ore enha ncements for the s ame conduct. Th e d is tr ic t c ou rt di d n ot id en ti fy a ny fa cts or ci rcumst ances that would take Kuhn’s case outside of the “heartland” of offenders who violate their position of

public trust while simultaneously supervising other s in illegal activity.

The district court erred first by not not ifyin g the government

that it intended to depart on this basis. E ven if proper notice ha d been pr ovided, the district court a bused its discretion in departing on this basis. 12 United States v. Kuhn No. 02-1031

2. Departur

e based on the specific offe

nseenhance

ments of Section 2Q1.3

Sec tion 2Q1.3 addresses the offense for which Kuhn was convicted. The relevant specific offense c haracteristics are: b) Specific Offense Character istics (1) (A) If the offen se resul ted in an ongo ing, continuous,
or repetitive discharge, release, or emission of a pollutant into the environment, increase by 6 levels; or (B) if the offe nse other wise involved a discharge, release
, or emission of a poll

utant, inc rease by 4 l evels. (2) If the offense r

esulted in a substantial likelihood of death or serious b odily

injury , increa se by

11 levels

. (3) If the offense r

esulted in disruption of public utilities
or evacuation of a community , or if cleanup required a substantia l expenditu

re, incr ease by 4 levels. (4) If the offense involved a d ischa rge wi

thout a pe rmit or in violation of a permit, increase by 4 levels . . . .
U.S.S.G. § 2Q1.3.

The district court enhanced Kuhn’s base off e nse level by four levels for both § 2Q1. 3(b)(1)(B) and § 2Q1.3(b)(4) , as the offen se i nvolved “ a discha rge” a nd “a disc

harge . . . in violation of a permit.” In doing so, the district court specific ally

stat ed that a

pply ing both s

pecific offense characteristics did “not constitute double counting.”

The appl icat

ion no tes to

eac h enh ance

ment a uthor ize downward

or upward departures based on several factors. For § 2Q1.3(b)(1)(B), applicable if the of fense involved a disch arge of a pollutant, application note 4 contemplates an upward or downward

departure based on “the harm resulting fromthe . . . discha rge, the quantity and nature of the substance or

pollutant, the dura

tion of the offense and the r isk associated

with t he vio lation . . . .” U.S.S.G. § 2Q1.3, comment. (n.4). For § 2Q1.3(b) (4), app licable i f the off ense involved a discharge without a permit or in violation of aNo. 02-1031 United States v. Kuhn 13

4 The government argue s that the d istrict cou rt erred in stating that “a sing le discha rge o ccurr ed,” s tating that tria l testimon y confirm ed th a t sludge was discharge d on two se para te occasions, alt hough the government does not ci te any trial testi mony to this ef fect. However, whether the t rial test imony re flec ts t

his f act i s not di sposit ive on t his i ssue. permit, application n ote 7 contemplates an upward or downward

departure based on “the

nature and

quantity of the sub sta nce involved a

nd the ris k associa

ted with th e offen se

. . . .” U.S.S.G. § 2Q1.3, comment. (n.7). The district court granted Kuhn two two-level guided downward depar tures pursuant to these two application notes, noting that the environmental harm did not seem to be ver y g reat. The government

does not challenge these two guided departu res.
The district court then gave as one reason for its additional unguided four-l evel downward departure, the applica tion of both these sp ec ific off

ense cha racter istics, sta ting tha t “[a]ll d ischarges or emissions of a pollutant, in the context of a violation of the applicable statutory sec tion in this case,
necessa rily must be accomplished

in violation of or ab sent a perm it. Where a single discharge oc curred, the scori ng o f both these fa ct ors puts un

due weig ht on these

offense characteristics in this case.” 4

The government

first ar gues tha t the distr ict cour t failed t o give notice th at it intende d to depar t downwar

d for this
reason. However, the defendant moved for a downward departure on this basis and objected to the PSR

on this bas is; thus, the government was sufficiently on notice that

this issue would be addre ssed at th e sent encing hearing. See Fed. R. Crim. P. 32.

The gover

nment also

argue s that the c ourt h ad a lready determined

that applying

both offense characteristicsdid not constitute doub le-counting and had already granted Kuhn a two-level downward adjustment f or each of subsections (b)(1)(B) and (b)(4), and it contends tha t t his more than 14 United States v. Kuhn No. 02-1031

5 On bases not

relev ant her e, thi s judgment was vacat ed by the United States Sup reme Co urt, Rapanos v. United States , 533 U .S. 9 13 (200 1), and rema nde d to this c ourt. W e in turn remanded the c ase to t he dist rict

cou rt, United Stat es v. Rapanos , 16 Fed. Appx. 345, 2001 WL 868006 (6th Cir. July 13, 2001). The d is trict cou rt set aside the de fenda nt’s convi cti on and d ismissed the case

. Un ited States v . Rapan os , 190 F. Supp. 2d 101 1 (E .D. M ich. 20 02) . On a ppe al, we re verse d. United States v. Rapanos , 339 F.3d 44 7 (6th Cir. 2003). accounted

for the frequency

of the discharges and the nature of the harm posed by

Kuhn’s offenses. We agree.

A district court abuses its discretion when it departs based
ona factor alr eady c o nsidered by the Commission in the guideline s. Koon , 518 U.S. at 111. The district court noted that the offense-level characte ristics accounted fo r the fact that Kuhn’s offense w as n ot ongoing or repetitive, y et went
onto say that it was“persuaded that the sentence oug htto be fas hioned around the fact that the disc harge in this cas e resulted from essentially a single incident that occurred over
a day or two . . . .” B ut as we indi cated i n United States v. Rapano s , 235 F.3d 256 (6th Cir. 2000), 5 quoting § 5K2.0, “[D]issatisfaction with the a vailable s entencing range or

a preference

for a different sentence than that authorized

by the guidelines is not an appropriate basis for a s entence outside the applica

ble guideline range.” Id. at 260. In Rapanos , we found that the district cour

t abu sed its disc

retion when it gr a nted two additional one-level downward departures af ter g ranting two two-le

vel downw ard depa

rtures p ursuant t o applicationnotes 4 and 7. Ibid. We noted that although the guided departu res w ere au thorized by the facts found by the districtcourt, the facts found did not authorize the additional unguided departu res, bec ause “[a] district c o urt abuse s its discretionwhen it takes into account a factor already considered

by the Commission in the guidelines.” Id. at 259- 61.

Inthis case, the guidelines take into account the factors that concerned

the distri ct court. S ection 2Q1. 3(b)(1)(B)No. 02-1031 United States v. Kuhn 15

contemplates its application in the e v ent of “a discharge,” meaninga single discharge as does section 2Q1.3(b)(4). The districtcourt also was able to address its concernsby granting the two guid

ed depar ture s and by decl ining

to ap plya sixlevel enh anc ement applicable to discharges that wer e “ongoi ng, continuous , or repetitive.” U.S.S.G

. § 2Q1.3(b) (1)(A) . The sen tencing guideli nes more than adequately

take into account the frequency of the discharges and the threat of environmental harm posed by Kuh n’ s crimes. The distri ct co urt’s comment that it had “consid er able thoughts and doubt about whether the sentence,
a custod ial s entence, of 21 months to 27 months serves the ends of justice

in this cas e,” indic ates a

“dissatisfaction

with the avai lablesente ncing r ange or a preference for a different sentence than that au thori ze d by the g uidelines,” which we noted in Rapanos “is not an appropriate basis for a sentence outside the applicable guideline range .” 235 F .3d at 260 (quoting the commentary to § 5K2.0).

The district c ourt also

reasone d that the

applica tion of bot

h enhanc ements placed u ndue wei g ht on the offe nse characteristics because

“[a] ll discharges or emissions of a pollut ant , in the con

text of a vio lation of t

he applic able statutory sectio n in this case, necessarily must be accomplished

inviolation of

or absent a permit.” However, when it applied both specific offense characte ristics, the districtcourt not

ed that th e senten

cing g uideline s will contain
anapplica

tion note to

direct the court w

hen it should not ap ply both of

two over lapping specific offense charac teristic s. The court stated that while it believed one coul d not violate § 2Q1.3(b)(1)(B) without vi olating § 2Q1.3(b)(4) , “that’s how the sentencing guidelines are c onstituted.” It then stated that “in this parti cular c ase . . . a

pply ing off ense charac

teristic s in B1B [sic] and a lso in subpara graph (4) does not consti

tute double counting.”

Section2Q1.3(b)(1)(B) and section 2Q1.3(b) (4) are two distinctoffense level adjustments within an offense guideline and are intended to be applied cumulatively . The guidelines 16 United States v. Kuhn No. 02-1031

instruct that “[t]he off ense lev el adjustments from more than
one specific

offense characteristic within an

offense guideline
are cumulative (added together) unless the g uideline specifies t hat on ly t he greater (or g reatest) is to be used.” U.S.S.G. § 1B1.1, comment. (n.4); see also United States v. Perkins , 89 F.3d 303, 308 (6th Cir. 1996).

The applica

tion of bot

h specif ic offe nse char acteris tics is either double counting orit is not. The district court cannot first apply both spec ifi c offense characteristics and the n revi sit its decisi on when de ciding w hether t o gran t a downward

departure. If

the Sentencing Commission b elieved the appli catio n of bo th con stit uted d oubl e coun ting, it would have added an application note, as contemplated in § 1B1.1. Without such an application note, it seems that the Sentencing Commission has alre ady

taken the applica tio n of both spec ific offense characteristics into account when it designed the guideli nes. “A distri ct court

abuses it s d iscret ion when i t takes into account a factor already considered by

the Commission in the guidelines.” Rapanos , 2 35 F.3 d at 259. The district court did not provide any indicationof facts that would place Kuhn’s case out side the “heartland” of environmental crimes involving one or two discharges. Any
concerns with the fairnes s of wh et he r o ne wo ul d a lw ays qualify for an enhancement

pursuant to § 2Q1.3(b)(4) if one qualified for an enh an cement pursu ant to § 2Q1 .3(b)(1)(B) are best addressed to Congress.

The distr

ict cour t abused i

ts dis cret ion in departing downward on this basis.

3. Departur

e based o n Kuhn’s mo tivation an d purpose

The district court

offered as a further re ason for granti ng a downward

dep ar tu re K uhn ’s m ot iv ati on a nd p urp ose . It stated that giv en his bac

kgroun d, leng thof service in the area of public waste m anagem ent, and o ther fa ctors suc h as his community

involve men t and “exemplary per sonal record of achieve ments in the community,” it found “cre dible th eNo. 02-1031 United States v. Kuhn 17

defendant’s professed motive that the efficie nt, pollution-free operation of the B ay

City Wast e water Treatment Plant was his ultimate

goal.” The court concluded that bec ause of this pure motive, Kuhn’s case fell outside of the “heartl and” of pollution offenses. First, we note

that the district court erred by not giving notice to the governmen

t that it inte

nded to de

part on thi s basis. Second, we are unable to find any authorization in the guidelines for a downward departure based on

a defendant’s good motive for committing a cri me. We reserve judgment
onwhether some permissible grou nd may be found that would incorporate this reason. I n any event, the government shou ld have be en afforded the opportuni

ty to present it s argume nts to the di strict court. The district court must give the gover nment the

proper n otice of any intended basi s fo r departure, should it choose to do so again.

4. Conclusion

Therefore
, we VACATE Kuhn’s sentence and REMAND to the district court for resentencing.