1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0348P (6th Cir.)

File Name: 03a0348p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

MICHAEL J. KUHN,

Defendant-Appellee.

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No. 02-1031

Appeal from the United States District Court

for the Eastern District of Michigan at Bay City.

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

DAUGHTREY, Circuit Judges.

_________________

COUNSEL

ARGUED: Jennifer J. Peregord, UNITED STATES

ATTORNEY, Detroit, Michigan, for Appellant. William A.

Brisbois, BRISBOIS & BRISBOIS, Saginaw, Michigan, for

Appellee. ON BRIEF: Jennifer J. Peregord, UNITED

STATES ATTORNEY, Detroit, Michigan, for Appellant.

2 United States v. Kuhn No. 02-1031

William A. Brisbois, BRISBOIS & BRISBOIS, Saginaw,

Michigan, for Appellee.

_________________

OPINION

_________________

BOGGS, Chief Circuit Judge. Michael J. Kuhn was

sentenced to six months at a halfway house and six months of

supervised release following his conviction for improperly

discharging a pollutant into navigable waters, causing an

employee to falsify test results in records submitted to the

government, and signing and submitting a report to the

government that he knew contained false test results. The

government now appeals a four-level downward departure

granted by the district court to Kuhn. For the reasons set

forth below, we reverse, and remand the case for

resentencing. 

Kuhn was the Superintendent of the Bay City, Michigan,

Wastewater Treatment Plant (the Plant). The wastewater that

comes into the Plant goes through a number of stages before

being released into the Saginaw River. On or about

August 25, 1996, during the midnight shift, staff at the Plant

began cleaning the chlorine contact chamber, which is the

penultimate stage of the process. The Plant had a National

Pollutant DischargeElimination System (NPDES) permit that

governed its operation under the Clean Water Act (CWA).

The plant was obligated to notify the Michigan Department of

Environmental Quality (DEQ) within five days of any

accidental spill or bypass of the treatment system. At the end

of August 1996, sludge from the chlorine contact chamber

was illegally pumped into a ditch while the chlorine contact

chamber was being cleaned. This was done on Kuhn’s

orders. In November 1996, Kuhn had the soil from the ditch

excavated and hauled away.
No. 02-1031 United States v. Kuhn 3

1

“BOD-5" refers to a test which measures a wastewater sample’s

“Biochemical Oxygen Demand” over a 5-day period. 

2

Kuhn maintains that the high numbers were only for the influent

flow and that the numbers for the effluent flow were in line with the

monthly averages. He therefore purportedly concluded that the influent

flow numbers must have been incorrect. 

Pursuant to the Plant’s NPDES permit, the Plant was

required to submit monthly discharge monitoring reports to

the DEQ. As superintendent, Kuhn certified the accuracy of

the information in these reports. The reports contained data

regarding laboratory findings charting both the material

coming into the Plant (“influent”) and the material being

discharged from the Plant (“effluent”). A Plant technician

drew Kuhn’s attention to very high numbers for BOD-51 on

a sample drawn May 3, 1997. Kuhn asked the technician to

change the results, and the technician refused. The technician

made a copy of the original printout, suspecting that the

numbers might be altered in the final report to the DEQ.

Later, another technician gave the final report for the month

of May to Kuhn for his review and signature. He told her that

the test results for suspended solids, total phosphorous, and

BOD-5 for May 3 must be wrong and asked her to change the

numbers to the averages for the month. She refused.

However, when she checked the final report, the data for

May 3 had been changed to the monthly averages.

2

 Kuhn

then asked yet another technician to change the test results,

which he did. The technician wrote a memo memorializing

the fact that he had changed the test results at Kuhn’s

direction. Kuhn signed the final, altered report on June 10,

1997, and submitted it to the DEQ. 

Kuhn was subsequently indicted in a four-count indictment

that charged: first, that between August 23 and 30, 1996,

Kuhn knowingly caused plant workers to dispose of sewage

sludge improperly, which resulted in the sludge flowing into

a ditch on the plant property and 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

knowingly caused the sewage sludge to be discharged from

the 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

caused an employee to assist in falsifying test results that

were included in records that, under the CWA, were required

to be filed, in violation of 33 U.S.C. § 1319(c)(4) and

18 U.S.C. § 2; and fourth, that on June 10, 1997, he signed

and submitted to the DEQ a discharge monitoring report,

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 post-verdict motion for

judgment of acquittal. The district court granted this motion

in part, dismissing count two on double jeopardy grounds.

The presentence report (PSR) calculated Kuhn’s sentencing

range at 30-37 months, with a total offense level of nineteen.

This number 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 increases for specific offense

characteristics: pursuant to § 2Q1.3(b)(1)(B), due to the

offense involving a discharge or release of a pollutant; and

pursuant to § 2Q1.3(b)(4), due to the offense involving a

discharge without a permit or in violation of a permit. The

PSR recommended two additional two-level increases:

pursuant to § 3B1.1(c) for Kuhn’s role as an organizer, leader,

manager, or supervisor in a criminal activity; and pursuant to

§ 3B1.3 due to his abuse of a position of public trust in a

manner that significantly facilitated the commission or

concealment of this offense. This resulted in a recommended

adjusted offense level of eighteen for count one. 

For counts three and four, the PSR recommended a base

offense level of six (§ 2Q1.3(a)) with the same two increases

for leadership role and abuse of a position of public trust.

This resulted in a recommended adjusted offense level of ten

for counts three and four. According to the grouping rules,

found at § 3D1.4, one offense level was added to the group
No. 02-1031 United States v. Kuhn 5

with the highest adjusted offense level. Therefore, the

recommended combined adjusted offense level was nineteen.

At the sentencing hearing, the defense objected to the

addition of the increases for the two specific offense

characteristics. The court overruled this objection, finding

that application of the two specific offense characteristics did

not constitute double-counting. Next, the government

objected to the PSR’s omission of its requested 11-level

enhancement pursuant to § 2Q1.3(b)(2) because the offense

resulted in a substantial likelihood of death or serious bodily

injury. The court overruled the government’s objection.

Next, the government objected to the PSR’s failure to include

a two-level increase for obstruction of justice, pursuant to

§ 3C1.1 and application note 4(b), based on Kuhn’s false

testimony given at trial. The court overruled the

government’s objection. 

The defense did not object to the two two-level increases

for Kuhn’s leadership role and abuse of a position of public

trust. The defense, however, did move for a downward

adjustment or departure, based on § 2Q1.3, application notes

4 and 7, which advise the court that upward and downward

departures are appropriate depending upon the harm or risk

associated with the offense. The court departed downward

two levels with regard to each offense characteristic, for a

total of four levels subtracted from the adjusted offense level

for count one. The court explained that testing of the affected

areas did not indicate any presence of PCBs, that the chlorine

contact chamber was the last stage that polluted water reached

before it was released into the environment, and that there

were serious questions in the court’s mind “as to whether any

of the contents of that ditch ever made it into the Saginaw

River.”

At this point, the adjusted offense level for count one stood

at fourteen. The court then calculated that, pursuant to

§ 3D1.4, two levels were to be added to that for grouping

purposes. This resulted in 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 court denied the motion, but went on to state that it

doubted that a 21- to 27-month term of incarceration “serves

the ends of justice in this case.” The court stated that it

questioned the two two-level adjustments for role in the

offense and abuse of a position of public trust. It stated that

“the offense in this case did not necessarily entail an abuse of

trust that was separate and apart from the defendant’s position

that permitted him to be a leader or organizer of the activity.”

Therefore, the court concluded, scoring the two adjustments

in a single case constituted an over-counting. Moreover, the

court stated that, although applying the two specific offense

characteristics did not constitute double-counting, it “put

undue weight on the offense characteristics for this specific

offense,” because the offense for which Kuhn was convicted

consisted of a single discharge. The court also noted that it

felt that the sentence in the case 

ought to be fashioned around the fact that the discharge

in this case resulted from essentially a single incident that

occurred over a day or two, and was motivated by the

defendant’s desire to make the plant more efficient so

that it would perform the function of enhancing the

environmental quality as opposed to degrading it.

Therefore, the court departed downward by four additional

levels. 

In its judgment, the court added more reasons for granting

the additional four-level downward departure, indicating that

“[t]he circumstances of this case, including the defendant’s

motivation and purpose, takes this case out of the ‘heartland’

of offenses contemplated by the Sentencing Guidelines.”

First, the court reiterated that Kuhn “was motivated by a

desire to clean up and improve the efficient operation of the

Bay City Wastewater Treatment Plant.” Apparently, the court
No. 02-1031 United States v. Kuhn 7

3

The initial four-level downward departure, pursuant to § 2Q1.3,

application notes 4 and 7, was a guided departure. 

concluded that Kuhn was taking a shortcut, engaging 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: 

Given the defendant’s background, however, his length

of service in the area of public waste management, and

other minor factors such as his community involvement

and exemplary personal record of achievements in the

community, the Court finds credible the defendant’s

professed motive that the efficient, pollution-free

operation of the Bay City Wastewater Treatment Plant

was his ultimate goal.

Therefore, the court imposed a sentence based on offense

level twelve and a criminal history category of I. Kuhn was

sentenced to six months 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 departure.3 It first argues

that the district court gave no notice to the government of its

intention to depart on the basis of Kuhn’s role in the offense

and abuse of a position of public trust enhancements, nor on

the basis of the application of the specific offense

enhancements of § 2Q1.3. The government argues that even

if it had received proper notice, the downward departure on

these bases was improper. Finally, the government argues

that the additional reasons for the downward departure added

in the district court’s judgment were not supported by any

factual bases and are discouraged factors for downward

departures under the sentencing guidelines, and that the

district court 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 grant a downward

departure for an abuse of discretion. See United States v.

Reed, 264 F.3d 640, 646 (6th Cir. 2001) (citing Koon v.

United States, 518 U.S. 81, 100 (1996)). A sentencing court

may impose a sentence outside the guidelines range only if

the court finds “that there exists an aggravating or mitigating

circumstance of a kind, or to a degree, not adequately taken

into consideration by the Sentencing Commission in

formulating the guidelines . . . .” U.S.S.G. § 5K2.0 (quoting

18 U.S.C. § 3553(b)). A district court abuses its discretion

when it fails to give 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

district court departed downward based on three reasons. We

consider the validity of these reasons separately below. 

1. Departure based on enhancements for Kuhn’s role in

the offense and abuse of a position of public 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 Criminal Procedure provides that: 

Before the court may depart from the applicable

sentencing range on a ground not identified for departure

either in the presentence report or in a party's prehearing

submission, the court must give the parties reasonable

notice that it is contemplating such a departure. The

notice must specify any ground on which the court is

contemplating a departure.

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

government that it was planning to depart on this basis was

error. See Yang, 281 F.3d at 547. 

Even if the district court had given the government notice,

the downward departure based on these enhancements was

improper. During the sentencing hearing, defense counsel

conceded, and the district court found, that both
No. 02-1031 United States v. Kuhn 9

enhancements were proper in this case. However, the district

court stated that the enhancements, if applied cumulatively,

over-counted because “the offense in this case did not

necessarily entail an abuse of trust that was separate and apart

from the defendant’s position that permitted him to be a

leader or organizer of the activity.” In its judgment, the

district court added to its rationale, stating that the abuse of

trust enhancement should be discounted because “a

significant number of members of the general public did not

enjoy a beneficial or quasi-fiduciary relationship with the

defendant in his role as a public servant.” 

The abuse of a position of public trust enhancement

“applies to persons who abuse their positions of trust . . . to

facilitate significantly the commission or concealment of a

crime.” U.S.S.G. § 3B1.3, comment. (backg’d.). “[A

position of public or private trust is] characterized by

professional or managerial discretion (i.e., substantial

discretionary judgment that is ordinarily given considerable

deference).” Id. at comment. (n.1). As the district court

impliedly found when it applied the enhancement, Kuhn

satisfied these elements.

The district court’s reasoning that the abuse of trust

enhancement should be discounted because “a significant

number of members of the general public did not enjoy a

beneficial or quasi-fiduciary relationship with the defendant

in his role as 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 general public may be victims of a

government employee’s crimes for purposes of deciding

whether the employee’s sentence may be enhanced pursuant

to § 3B1.3.” Id. at 371. The defendant in White was a

general superintendent at a drinking water treatment plant

who was convicted of filing false reports. Although the

question there was whether the enhancement should apply to

White, while here we are reviewing a downward departure

after the enhancement has already been applied, the court’s

holding is relevant here. The district court’s statement in

10 United States v. Kuhn No. 02-1031

departing downward seems to indicate that it believes the

enhancement should not have been applied. If this is the case,

then the district court should not have applied the

enhancement in the first place. However, it is clear that the

enhancement was properly applied. Kuhn was a government

employee, charged with the safe and efficient operation of a

wastewater treatment operation. He was convicted of

knowingly causing sewage sludge to be discharged into a

navigable waterway and falsifying reports. The statutes that

were violated were in place to protect the general public from

this sort of activity. It is difficult to see how members of the

general public were not in a beneficial relationship with

Kuhn, as significant numbers of the public depended upon

Kuhn to prevent or ameliorate water pollution in the area.

Moreover, his high-level position with respect to his public

function of wastewater treatment, “contributed in some

significant way to facilitating the commission” of his offense.

U.S.S.G. § 3B1.3, comment. (n.1). 

The aggravating role enhancement “increase[s] the offense

level based upon the size of the criminal organization . . . and

the degree to which the defendant was responsible for

committing the offense.” U.S.S.G. § 3B1.1, comment.

(backg’d.). It generally addresses a defendant’s relative

responsibility for the crime. Again, the district court found

that Kuhn satisfied these elements when it applied the

enhancement. The aggravating role enhancement relates to

Kuhn’s role as a supervisor over others in the operation of the

Plant. Kuhn directed others to discharge the contents of the

chlorine contact chamber into the ditch, and directed

technicians to change test results. 

Applying these two enhancements cumulatively does not

“over-count,” as each enhancement has elements that are not

necessary for the determination of the other. In White, this

court addressed the appropriateness of applying both a

leadership and an abuse-of-trust enhancement. See White,

270 F.3d at 371-73. The district court in White applied the

§ 3B1.3 enhancement solely because it found the defendants
No. 02-1031 United States v. Kuhn 11

used a special skill in committing their offenses. Id. at 370.

When it declined also to apply the enhancement because of

the abuse of a position of public trust, the district court

foreclosed the government from seeking an aggravating role

enhancement under § 3B1.1. Ibid. (citing § 3B1.3 “if this

adjustment is based solely on the use of a special skill, it may

not be employed in addition to an adjustment under § 3B1.1

(Aggravating Role).”) We reversed, and remanded the case

to the district court, directing that it apply the abuse-of-trust

enhancement and to “consider the propriety of also enhancing

White’s sentence pursuant to Section 3B1.1.” Id. at 373.

“Absent an instruction to the contrary, the adjustments from

different guideline sentences are applied cumulatively (added

together).” U.S.S.G. § 1B1.1, comment. (n.4). As the district

court found that Kuhn satisfied the requirements for the

enhancements, it was an abuse of discretion to find that the

application of the enhancements together constituted doublecounting and therefore merited a downward departure. A

sentencing court may impose a sentence outside the

guidelines range only if the court finds “that there exists an

aggravating or mitigating circumstance of a kind, or to a

degree, not adequately taken into consideration by the

Sentencing Commission in formulating the guidelines . . . .”

U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). It is clear

that the Sentencing Commission took into consideration the

application of two or more enhancements for the same

conduct. The district court did not identify any facts or

circumstances that would take Kuhn’s case outside of the

“heartland” of offenders who violate their position of public

trust while simultaneously supervising others in illegal

activity. 

The district court erred first by not notifying the

government that it intended to depart on this basis. Even if

proper notice had been provided, the district court abused its

discretion in departing on this basis. 

12 United States v. Kuhn No. 02-1031

2. Departure based on the specific offense enhancements

of Section 2Q1.3

Section 2Q1.3 addresses the offense for which Kuhn was

convicted. The relevant specific offense characteristics are:

b) Specific Offense Characteristics

(1) (A) If the offense resulted in an ongoing, continuous,

or repetitive discharge, release, or emission of a pollutant

into the environment, increase by 6 levels; or

(B) if the offense otherwise involved a discharge, release,

or emission of a pollutant, increase by 4 levels.

(2) If the offense resulted in a substantial likelihood of

death or serious bodily injury, increase by 11 levels.

(3) If the offense resulted in disruption of public utilities

or evacuation of a community, or if cleanup required a

substantial expenditure, increase by 4 levels.

(4) If the offense involved a discharge without a permit

or in violation of a permit, increase by 4 levels . . . .

U.S.S.G. § 2Q1.3. 

The district court enhanced Kuhn’s base offense level by

four levels for both § 2Q1.3(b)(1)(B) and § 2Q1.3(b)(4), as

the offense involved “a discharge” and “a discharge . . . in

violation of a permit.” In doing so, the district court

specifically stated that applying both specific offense

characteristics did “not constitute double counting.” 

The application notes to each enhancement authorize

downward or upward departures based on several factors. For

§ 2Q1.3(b)(1)(B), applicable if the offense involved a

discharge of a pollutant, application note 4 contemplates an

upward or downward departure based on “the harm resulting

from the . . . discharge, the quantity and nature of the

substance or pollutant, the duration of the offense and the risk

associated with the violation . . . .” U.S.S.G. § 2Q1.3,

comment. (n.4). For § 2Q1.3(b)(4), applicable if the offense

involved a discharge without a permit or in violation of a
No. 02-1031 United States v. Kuhn 13

4

The government argues that the district court erred in stating that “a

single discharge occurred,” stating that trial testimony confirmed that

sludge was discharged on two separate occasions, although the

government does not cite any trial testimony to this effect. However,

whether the trial testimony reflects this fact is not dispositive on this issue.

permit, application note 7 contemplates an upward or

downward departure based on “the nature and quantity of the

substance involved and the risk associated with the offense

. . . .” U.S.S.G. § 2Q1.3, comment. (n.7). The district court

granted Kuhn two two-level guided downward departures

pursuant to these two application notes, noting that the

environmental harm did not seem to be very great. The

government does not challenge these two guided departures.

The district court then gave as one reason for its additional

unguided four-level downward departure, the application of

both these specific offense characteristics, stating that “[a]ll

discharges or emissions of a pollutant, in the context of a

violation of the applicable statutory section in this case,

necessarily must be accomplished in violation of or absent a

permit. Where a single discharge occurred, the scoring of

both these factors puts undue weight on these offense

characteristics in this case.”4

The government first argues that the district court failed to

give notice that it intended to depart downward for this

reason. However, the defendant moved for a downward

departure on this basis and objected to the PSR on this basis;

thus, the government was sufficiently on notice that this issue

would be addressed at the sentencing hearing. See Fed. R.

Crim. P. 32. 

The government also argues that the court had already

determined that applying both offense characteristics did not

constitute double-counting and had already granted Kuhn a

two-level downward adjustment for each of subsections

(b)(1)(B) and (b)(4), and it contends that this more than

14 United States v. Kuhn No. 02-1031

5

On bases not relevant here, this judgment was vacated by the United

States Supreme Court, Rapanos v. United States, 533 U.S. 913 (2001),

and remanded to this court. We in turn remanded the case to the district

court, United States v. Rapanos, 16 Fed. Appx. 345, 2001 WL 868006

(6th Cir. July 13, 2001). The district court set aside the defendant’s

conviction and dismissed the case. United States v. Rapanos, 190 F.

Supp. 2d 1011 (E.D. Mich. 2002). On appeal, we reversed. United States

v. Rapanos, 339 F.3d 447 (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

on a factor already considered by the Commission in the

guidelines. Koon, 518 U.S. at 111. The district court noted

that the offense-level characteristics accounted for the fact

that Kuhn’s offense was not ongoing or repetitive, yet went

on to say that it was “persuaded that the sentence ought to be

fashioned around the fact that the discharge in this case

resulted from essentially a single incident that occurred over

a day or two . . . .” But as we indicated in United States v.

Rapanos, 235 F.3d 256 (6th Cir. 2000),5 quoting § 5K2.0,

“[D]issatisfaction with the available sentencing range or a

preference for a different sentence than that authorized by the

guidelines is not an appropriate basis for a sentence outside

the applicable guideline range.” Id. at 260. In Rapanos, we

found that the district court abused its discretion when it

granted two additional one-level downward departures after

granting two two-level downward departures pursuant to

application notes 4 and 7. Ibid. We noted that although the

guided departures were authorized by the facts found by the

district court, the facts found did not authorize the additional

unguided departures, because “[a] district court abuses its

discretion when it takes into account a factor already

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

61. 

In this case, the guidelines take into account the factors that

concerned the district court. Section 2Q1.3(b)(1)(B)
No. 02-1031 United States v. Kuhn 15

contemplates its application in the event of “a discharge,”

meaning a single discharge as does section 2Q1.3(b)(4). The

district court also was able to address its concerns by granting

the two guided departures and by declining to apply a sixlevel enhancement applicable to discharges that were

“ongoing, continuous, or repetitive.” U.S.S.G.

§ 2Q1.3(b)(1)(A). The sentencing guidelines more than

adequately take into account the frequency of the discharges

and the threat of environmental harm posed by Kuhn’s

crimes. The district court’s comment that it had

“considerable thoughts and doubt about whether the sentence,

a custodial sentence, of 21 months to 27 months serves the

ends of justice in this case,” indicates a “dissatisfaction with

the available sentencing range or a preference for a different

sentence than that authorized by the guidelines,” 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 court also reasoned that the application of both

enhancements placed undue weight on the offense

characteristics because “[a]ll discharges or emissions of a

pollutant, in the context of a violation of the applicable

statutory section in this case, necessarily must be

accomplished in violation of or absent a permit.” However,

when it applied both specific offense characteristics, the

district court noted that the sentencing guidelines will contain

an application note to direct the court when it should not

applyboth of two overlapping specific offense characteristics.

The court stated that while it believed one could not violate

§ 2Q1.3(b)(1)(B) without violating § 2Q1.3(b)(4), “that’s how

the sentencing guidelines are constituted.” It then stated that

“in this particular case . . . applying offense characteristics in

B1B [sic] and also in subparagraph (4) does not constitute

double counting.” 

Section 2Q1.3(b)(1)(B) and section 2Q1.3(b)(4) are two

distinct offense 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 offense level adjustments from more than

one specific offense characteristic within an offense guideline

are cumulative (added together) unless the guideline specifies

that only the greater (or greatest) is to be used.” U.S.S.G.

§ 1B1.1, comment. (n.4); see alsoUnited States v. Perkins, 89

F.3d 303, 308 (6th Cir. 1996). 

The application of both specific offense characteristics is

either double counting or it is not. The district court cannot

first apply both specific offense characteristics and then

revisit its decision when deciding whether to grant a

downward departure. If the Sentencing Commission believed

the application of both constituted double counting, it would

have added an application note, as contemplated in § 1B1.1.

Without such an application note, it seems that the Sentencing

Commission has already taken the application of both specific

offense characteristics into account when it designed the

guidelines. “A district court abuses its discretion when it

takes into account a factor already considered by the

Commission in the guidelines.” Rapanos, 235 F.3d at 259.

The district court did not provide any indication of facts that

would place Kuhn’s case outside the “heartland” of

environmental crimes involving one or two discharges. Any

concerns with the fairness of whether one would always

qualify for an enhancement pursuant to § 2Q1.3(b)(4) if one

qualified for an enhancement pursuant to § 2Q1.3(b)(1)(B)

are best addressed to Congress. 

 The district court abused its discretion in departing

downward on this basis. 

3. Departure based on Kuhn’s motivation and purpose

The district court offered as a further reason for granting a

downward departure Kuhn’s motivation and purpose. It

stated that given his background, length of service in the area

of public waste management, and other factors such as his

community involvement and “exemplary personal record of

achievements in the community,” it found “credible the
No. 02-1031 United States v. Kuhn 17

defendant’s professed motive that the efficient, pollution-free

operation of the Bay City Wastewater Treatment Plant was

his ultimate goal.” The court concluded that because of this

pure motive, Kuhn’s case fell outside of the “heartland” of

pollution offenses. 

First, we note that the district court erred by not giving

notice to the government that it intended to depart on this

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 crime. We reserve judgment

on whether some permissible ground may be found that

would incorporate this reason. In any event, the government

should have been afforded the opportunity to present its

arguments to the district court. The district court must give

the government the proper notice of any intended basis for

departure, should it choose to do so again. 

4. Conclusion

Therefore, we VACATE Kuhn’s sentence and REMAND

to the district court for resentencing.