IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

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)

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)

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)

CASE NO.: 2:15-MJ-605

JUDGE NORA M. KING

v.

SHANNON WAYNE HARROLD,

Defendant.

MEMORANDUM SUPPORTING PROBABLE CAUSE

The United States of America, by and through its undersigned counsel, 

herein submits this memorandum in response to the Court’s concern about whether the 

acts of SHANNON WAYNE HARROLD (the “Defendant”), as alleged in the Complaint 

and the preliminary hearing, constitute disposal. It is the Government’ position that there 

is probable cause to believe that the Defendant’s actions at Roses Discount Store

(“Roses”), on August 25, 2015, in conjunction with other actions by the Defendant, 

constitute “the course of disposal”. The Government provides the following in support of 

this position.

Summary Of Clean Air Act Requirements

The Clean Air Act, 42 U.S.C. § 7401 et seq., and regulations promulgated by the 

United States Environmental Protection Agency (“U.S. EPA”) establish that it is illegal in 

the course of maintaining, servicing, repairing, or disposing of an appliance to knowingly 

vent, release, or dispose a Class I or II substance, which was used as a refrigerant, in such 

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a manner that permitted the Class I or II substance to enter the environment. See 42 

U.S.C. § 7671g and 40 C.F.R. § 82.154(a). Defense counsel and the Court agreed that all 

the elements of the violation had been established by the Government, but for the 

concerns raised about whether the Defendant’s actions should be considered in the course 

of disposal.

The term “disposal” is defined at 40 C.F.R. § 82.152 as the process leading to and 

including: 1) the discharge, deposit, dumping or placing of any discarded appliance into 

or on any land or water; 2) the disassembly of any appliance for discharge, deposit, 

dumping or placing of its discarded component parts into or on any land or water; or, 3) 

the disassembly of any appliance for reuse of its component parts.

Summary Of Facts From The Preliminary Hearing

On August 25, 2015, City of Whitehall Police Officer K.S. Jacobs was dispatched 

to Roses’, located at 4632 East Main Street Whitehall, Ohio, to investigate an attempted 

theft of an air conditioning unit. Employees of Roses told the Officer Jacobs that a male 

approached a Roses’ employee and stated he was there to work on the rooftop air 

conditioning unit, including changing the filters on the unit. The male has been clearly 

identified as the Defendant. The Defendant was wearing a work shirt with a logo for 

“Eagle Heating and Cooling.” Eagle Heating and Cooling is the company contracted by 

Roses to perform maintenance on their air conditioning equipment.

Shortly after the Defendant was granted access to the roof, a Roses’ employee 

contacted Eagle Heating and Cooling. The Roses’ employee was told that no employee 

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from Eagle Heating and Cooling was scheduled to perform service or maintenance at the 

store.

A Roses employee confronted the Defendant on the roof and the Defendant said 

the paperwork for this job was in his vehicle. When the Defendant reached his vehicle, 

he did not produce any paperwork but fled the scene.

Upon returning to the roof, the Roses’ employees found that one of the air 

conditioner units had been vented. Specifically, the tubing on the air conditioner unit’s 

condenser was cut using an electrical saw, releasing the refrigerant from the unit into the 

atmosphere. The Defendant is a former employee Eagle Heating and Cooling. The cost 

to repair/replacement the damage done the destroyed unit was over $20,000. This 

includes replacement of the refrigerant which was vented by the Defendant.

Prior to the Defendant’s venting and destruction of the air conditioning unit at 

Roses the Defendant sold a total of 241 air conditioning components to A-Z Recycling 

Incorporated (“A-Z”) and New World Recycling LLC (“New World”). Both A-Z and 

New World own and operate a scrap metal recycling facilities in Columbus, Ohio. In 

fact, A-Z and New World are located next to one another and share scale for the 

weighing of scrap metal. A-Z and World Recycling purchase air conditioners and air 

conditioner parts, such as coils and compressors, from walk-up customers for recycling. 

 1

 Upon closer examination of the scrap sales, the Defendant sold a total of 24 air conditioner 

components and 13 undescribed metal objects to A-Z and New World over a 30 day period. 

Because a complete description of the metal objects is not included in the scrap sales 

documentation, it is unclear whether or not the 13 metal objects are components from an air 

conditioner.

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The sales by the Defendant started on or about the beginning of August 2015, and 

continued for the next 30 days.

On September 18, 2015, the Defendant fled from Gahanna Police attempting to 

conduct a routine traffic stop on a black Ford Taurus. The Defendant fled from the 

Gahanna officer at a high rate of speed, in excess of 90 M.P.H., and during the pursuit he 

repeatedly disregarded multiple traffic lights and drove on the opposite side of the road 

way causing multiple motorists to leave the road way in order to avoid a collision. At the 

conclusion of the pursuit, the Defendant was taken into custody by Gahanna Police. The 

plate on the Defendant’s car at the time of the arrest was stolen.

An initial search of the Defendant’s vehicle found criminal tools (i.e., electric saw 

and drill), stolen license plates, heroin, and drug paraphernalia (i.e., glass pipes and 

syringes). A later search of the vehicle found an air conditioner part that included a serial 

number. The serial number was traced back to an air conditioner that was recently stolen 

in the Columbus area.

Defendant’s Actions Constitute Disposal

To put the Defendant’s actions at Roses into context, it is critical to review the 

Defendant’s activities before attempting to steal the air conditioner from Roses. Prior to 

the attempted theft at Roses, the Defendant sold a total of 24 air conditioners to A-Z and 

New World as scrap metal. These sales occurred over a 30 day period. There is no 

legitimate explanation for the Defendant’s sale of 24 air conditioner components as scrap 

metal over a 30 day period. The only plausible explanation is that the Defendant has 

been engaged in the destruction, theft, and sale of air conditioners as scrap metal.

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To evade detection and capture during this crime spree, the Defendant engaged in 

several additional illegal activities. To avoid detection, the Defendant stole several 

license plates and placed these on his vehicle to conceal his identity. To avoid capture, 

the Defendant, on two occasions, fled from the police. Both of these times the Defendant

fled from the police at high rates of speed and put the public in danger.

Considering only the plain language of the prohibition (i.e., it is illegal in the 

course of maintaining, servicing, repairing, or disposing of an appliance to knowing vent 

HCFC into the environment) the Defendant disposed of the air conditioner unit at Roses. 

This is because, “in the course” of sawing the condenser on the air conditioner the 

Defendant vented the refrigerant in the air conditioner into the atmosphere.

The definition of disposal in the Merriam-Webster dictionary includes the act or 

process of systematic destruction. Combining the dictionary definition of disposal with 

the venting prohibition at 40 C.F.R. § 82.154(a) as it applies to this case, it is illegal in 

the course of “destroying” an air conditioner to knowingly vent HCFC in to the 

environment. This perfectly describes the actions of the Defendant on the rooftop of 

Roses on August 25, 2015. That is in the course of destroying the air conditioner at 

Roses, the Defendant vented HCFC into the environment. Testimony during the 

preliminary hearing established the Defendant’s destruction of the air conditioner cost 

Roses over $20,000 to repair/replacement the damage done the destroyed unit, including 

the cost replace the refrigerant which was vented by the Defendant.

Leading up to the attempted theft at Roses the Defendant had been engaged in a 

wide-ranging scheme to steal air conditioners and sell them as scrap metal. When 

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stealing an air conditioner it is routine to vent the refrigerant. After the refrigerant is 

vented, the air conditioner no longer works and is effectively destroyed. This is 

especially true when the condenser or coil is damaged during the theft. So when the 

Defendant used an electric saw to cut the condenser of the air conditioner at Roses, the 

Defendant destroyed the air conditioner. Clearly the Defendant was not attempting to 

maintain, service, or repair the air conditioner at Roses. This is in spite of the 

Defendant’s stated purpose of maintenance, which is also covered by the prohibition.

Given that the Defendant was engaged in an ongoing scheme to steal and sell air 

conditioners as scrap metal, when the Defendant cut the air conditioner’s condenser with 

a saw the Defendant was in the process of destroying, or disposing, of the air conditioner.

As mentioned above, disposal is also defined in the regulations promulgated by 

U.S. EPA at 40 C.F.R. § 82.152. The three methods of disposal detailed after the 

parentheticals in the definition are considered the final step of disposal. In other words, 

final step of disposal is defined to include 1) dumping of a whole appliance, 2) dumping 

of appliance parts, and 3) reuse of appliance parts.

But the definition is not limited to just the final step of disposal, but also includes 

“the process leading to” final disposal. See 40 C.F.R. § 82.152. Because of the inclusion 

of this prefatory phrase, the definition of disposal is much more expansive and includes 

more than just the final step of disposal. The purpose of the regulations is to reduce the 

amount of CFCs and HCFCs to the lowest achievable level during the service 

maintenance, repair, and disposal of appliances. Id. The most critical step in the disposal 

process is the step in which the refrigerant in the appliance is removed. Because removal 

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of the refrigerant is the most critical step, the definition of disposal rightfully covers the 

process in which the refrigerant is removed from the appliance. 

In this case, when the Defendant cut the condenser with an electric saw not only 

did he render the air conditioner inoperable and destroy it, the Defendant effectively 

removed the refrigerant from the air conditioner and discharged it into the atmosphere. 

Therefore, under the regulatory definition, the Defendant committed the act of disposal 

when he cut the condenser of the air conditioner and removed the refrigerant from the air 

conditioner, releasing it into the atmosphere.

On September 12, 2012, in the Middle District of Georgia, Alexander Morrissette 

(“Morrissette”) and Randall Scott Wimpey (“Wimpey”) were indicted for venting air 

conditioner units in the course of stealing the units to sell as scrap metal. See 3:12-CR37. Like the Defendant, Morrissette and Wimpey vented the refrigerant from the air 

conditioners during the disassembly process. In total, Morrissette and Wimpey vented, 

stole, and sold as scrap metal approximately 20 air conditioner units.

Wimpey, Morrissette’s accomplice, was sentenced to 15 months of custody. 

Morrissette was sentenced to 78 months of custody. Morrissette appealed the sentence. 

On September 16, 2014, the appellate court affirmed Morrissette’s 78 month sentence of 

custody. See 579 Fed. Appx. 916 (Sep. 16, 2014). (See attached, Attachments A, B, C & 

D.)

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For the foregoing reason there is probable cause to believe that the actions of the 

Defendant as alleged in the Complaint and preliminary hearing constitute disposal. 

Specifically, as part of the attempted theft of an air conditioner from Roses Discount 

Store the Defendant knowingly vented HCFC into the environment in the course of 

disposing of the air conditioner.

Respectfully submitted,

CARTER M. STEWART

United States Attorney

s/J. Michael Marous

J. MICHAEL MAROUS (0015322)

Assistant United States Attorney

303 Marconi Boulevard, Suite 200

Columbus, Ohio 43215

Office: (614) 469-5715

Fax: (614) 469-5653

E-mail: Mike.Marous@usdoj.gov

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Memorandum Supporting Probable Cause was filed 

with the Court=s CM/ECF system this 16th day of October, 2015, which provides electronic 

service to Deborah L. Williams.

s/J. Michael Marous

J. MICHAEL MAROUS (0015322)

Assistant United States Attorney

 

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4 of 48 DOCUMENTS

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ALEXANDER

MORRISSETTE, Defendant-Appellant.

No. 13-12078 Non-Argument Calendar

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

579 Fed. Appx. 916; 2014 U.S. App. LEXIS 17739

September 16, 2014, Decided

NOTICE: PLEASE REFER TO FEDERAL RULES

OF APPELLATE PROCEDURE RULE 32.1

GOVERNING THE CITATION TO UNPUBLISHED

OPINIONS.

PRIOR HISTORY: [**1] Appeal from the United

States District Court for the Middle District of Georgia.

D.C. Docket No. 3:12-cr-00037-CAR-CHW-1.

DISPOSITION: AFFIRMED.

COUNSEL: For United States of America, Plaintiff -

Appellee: Michelle Lee Schieber, Danial Edward

Bennett, Michael J. Moore, U.S. Attorney, U.S.

Attorney's Office, Macon, GA.

For Alexander Morrissette, Defendant - Appellant:

Harvey Gee, Federal Defender's Office, Albany, GA;

Martin J. Vogelbaum, Cynthia W. Roseberry, Federal

Public Defender's Office, Macon, GA.

JUDGES: Before WILSON, ROSENBAUM, and FAY,

Circuit Judges.

OPINION

[*916] PER CURIAM:

Alexander Morrissette appeals his 78-month

imprisonment sentence for knowingly causing the release

of a refrigerant into the environment. We affirm.

[*917] I. BACKGROUND

Morrissette stole aluminum-copper coils from 12

commercial air conditioning units at a pharmacy in

Monroe, Georgia, on November 23, 2011. Thereafter,

Morrissette's codefendant, Randall Wimpey, stole

aluminum-copper coils from air conditioning units at

another building in Monroe. Following his arrest,

Wimpey informed law enforcement officers he had been

working with Morrissette. Morrissette and Wimpey both

admitted to officers they had vented Freon, a refrigerant,

from the air conditioning units [**2] during the thefts.

In September 2012, a federal grand jury charged

Morrissette with three counts of knowingly causing the

release of a class I and class II substance, a refrigerant,

into the environment, in violation of 42 U.S.C. §§

7671g(c)(1) and 7413(c)(1). Morrissette pled guilty to

Counts One and Three of the indictment, under a plea

agreement, in exchange for the dismissal of Count Two.

Pursuant to the Presentence Investigation Report

("PSI"), Morrissette had a base offense level of six under

U.S.S.G. § 2Q1.3(a). He received a six-level increase

under § 2Q1.3(b)(1)(A), because the offense resulted in a

repetitive discharge, release, or emission of a pollutant

into the environment. He received a four-level increase

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under § 2Q1.3(b)(4), because the crime involved a

discharge without a permit. He also received a three-level

decrease for acceptance of responsibility under §

3E1.1(a) and (b). His total offense level was 13. He had a

criminal history category of VI and a Sentencing

Guidelines imprisonment range of 33 to 41 months.

Morrissette objected to the six-level increase under §

2Q1.3(b)(1)(A) and the four-level increase under §

2Q1.3(b)(4).

The district judge overruled Morrissette's objections

and found Morrissette repeatedly had released refrigerant

into the environment as a result of tearing up air [**3]

conditioning units. Morrissette did not have a permit, and

the judge rejected Morrissette's theory that the

enhancement only applied to those who were defined as

technicians under the Clean Air Act. The judge noted his

main concerns were Morrissette's extensive criminal

history and the replacement costs for the air conditioners.

The judge recognized Morrissette needed medical care

and had been stealing copper to provide for his children.

Nevertheless, after considering the 18 U.S.C. § 3553(a)

factors, the judge stated he was going to vary upward

from the advisory Guidelines range. He found a sentence

of 39 months each was appropriate for Counts One and

Three and ordered the 39-month sentences to run

consecutively, for an imprisonment sentence of 78

months. The judge also ordered restitution in the amount

of $178,846.81.

II. DISCUSSION

A. Procedural Reasonableness

On appeal, Morrissette argues his sentence is

procedurally unreasonable, because the district judge (1)

failed to explain the sentence, and (2) incorrectly

calculated the Sentencing Guidelines range by applying

the specific offense characteristics in U.S.S.G. §

2Q1.3(b)(1)(A) and § 2Q1.3(b)(4). We review the

reasonableness of a district judge's sentence through a

two-step process using [**4] a deferential

abuse-of-discretion standard of review. Gall v. United

States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed.

2d 445 (2007). First, we look at whether the district judge

committed any procedural error, such as "failing to

calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based

on clearly erroneous [*918] facts, or failing to

adequately explain the chosen sentence--including an

explanation for any deviation from the Guidelines range."

Id. at 51, 128 S. Ct. at 597. When considering the §

3553(a) factors, the district judge need not discuss each

of them individually. United States v. Dean, 635 F.3d

1200, 1203-04 (11th Cir. 2011).

"The district court has discretion to impose

consecutive sentences to comply with the requirements of

section 3553." United States v. Campa, 529 F.3d 980,

1012 (11th Cir. 2008). When determining whether the

sentences imposed are to be ordered to run concurrently

or consecutively, the district judge "shall consider, as to

each offense for which a term of imprisonment is being

imposed, the factors set forth in section 3553(a)." 18

U.S.C. § 3584(b).

Section 2Q1.3(b)(1)(A) provides: "If the offense

resulted in an ongoing, continuous, or repetitive

discharge, release, or emission of a pollutant into the

environment, increase [the base offense level] by 6

levels." U.S.S.G. § 2Q1.3(b)(1)(A). Application Note 4 of

the Commentary to § 2Q1.3 adds:

Depending upon the harm resulting from

the emission, [**5] release or discharge,

the quantity and nature of the substance or

pollutant, the duration of the offense and

the risk associated with the violation, a

departure of up to two levels in either

direction from that prescribed in these

specific offense characteristics may be

appropriate.

Id. § 2Q1.3, cmt. n.4. We have held that § 2Q1.3

"assumes actual environmental contamination if the text

of § 2Q1.3(b)(1) itself is met." United States v. Perez,

366 F.3d 1178, 1183 (11th Cir. 2004). Thus, the

government does not have to prove actual environmental

contamination for § 2Q1.3(b)(1) to apply. Id. at 1182-83.

Pursuant to § 2Q1.3(b)(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(b)(4). The

pertinent commentary provides that § 2Q1.3(b)(4) applies

"where the offense involved violation of a permit, or

where there was a failure to obtain a permit when one

was required." Id. § 2Q1.3, cmt. n.7. The commentary

further states that, "[d]epending upon the nature and

quantity of the substance involved and the risk associated

with the offense, a departure of up to two levels in either

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direction may be warranted." Id.

The Clean Air Act prohibits "any person, in the

course of maintaining, servicing, repairing, or disposing

of an appliance, to knowingly vent or otherwise

knowingly release or dispose of any class [**6] I or class

II substance used as a refrigerant in such appliance . . . in

a manner which permits such substance to enter the

environment." 42 U.S.C. § 7671g(c)(1). Persons

maintaining, servicing, repairing, or disposing of

appliances containing refrigerants, who reasonably expect

that their actions may release refrigerants from the

appliances, must become certified technicians and must

follow specific standards and requirements regarding the

use and disposal of refrigerants. See 40 C.F.R. § 82.152

(defining "technician"); id. § 82.156 (establishing

required practices); id. § 82.161 (establishing certification

requirement). The purpose of the certification

requirements for handling refrigerants is to "reduce

emissions of class I and class II refrigerants and their

substitutes to the lowest achievable level by maximizing

the capture and recycling of such refrigerants during the

service, maintenance, repair, and disposal of appliances."

Id. § 82.150(a).

The district judge adequately explained the sentence

of 39 months of imprisonment [*919] on Count One and

39 months of imprisonment on Count Three, to run

consecutively to each other. The judge stated Morrissette

had a substantial criminal history and expressed concern

with Morrissette's prior robbery conviction [**7] and the

way Morrissette had interacted with law enforcement.

The judge also expressed concern with the amount of loss

in this case. The judge specifically mentioned he had

considered the history and characteristics of Morrissette,

the need to deter future criminal conduct, and the need to

protect the public, when deciding to vary upward.

The district judge committed no procedural error in

calculating the advisory Sentencing Guidelines range.

Neither the Guidelines nor binding authority supports

Morrissette's contention that § 2Q1.3(b)(1)(A) is not

meant to cover emissions that are incidental to a theft of

air conditioning components. By releasing a refrigerant

into the environment without having the proper

certification and without following the proper procedures,

Morrissette violated the Clean Air Act, regardless of his

underlying intent to steal copper. 42 U.S.C. §

7671g(c)(1); 40 C.F.R. §§ 82.150 to 82.169. Morrissette's

argument that the government had to prove actual harm

to the environment is meritless, because we have held

exactly the opposite. Perez, 366 F.3d at 1182-83 ("[T]he

government does not have to prove actual environmental

contamination for § 2Q1.2(b)(1) to apply. . . . "[T]he

guideline . . . assumes actual environmental

contamination if the text of § 2Q1.3(b)(1) itself is met.").

Because his [**8] offenses resulted in a repetitive

discharge of refrigerants, the six-level increase in §

2Q1.3(b)(1)(A) applies.

In addition, the four-level increase in § 2Q1.3(b)(4)

applies. Morrissette's argument that the Guidelines

somehow apply only to technicians, as defined by the

Clean Air Act, lacks merit. The Guidelines commentary

specifically states that it applies, "where there was a

failure to obtain a permit when one was required." Id. §

2Q1.3, cmt. n.7. Pursuant to the Clean Air Act,

Morrissette was required to become a certified technician

before disposing of appliances that reasonably could be

expected to release refrigerants. 40 C.F.R. § 82.161; see

also id. § 82.152 (providing that the term disposal

includes the "disassembly of any appliance for reuse of

its component parts"). He did not obtain the proper

certification. Accordingly, Morrissette's total sentence is

procedurally reasonable.1

1 Morrissette raises numerous additional

arguments in his reply brief regarding procedural

reasonableness. Because he did not raise those

arguments in his initial brief, he has abandoned

them. United States v. Magluta, 418 F.3d 1166,

1185-86 (11th Cir. 2005) ("[A]n appellant may

not raise an issue for the first time in a reply

brief.").

B. Substantive Reasonableness

Morrissette also argues on appeal that his 78-month

sentence is [**9] substantively unreasonable, because it

does not achieve the purposes of sentencing. Once we

determine that a sentence is procedurally sound, we

examine whether the sentence is substantively reasonable

in light of the totality of the circumstances and the §

3553(a) factors. Gall, 552 U.S. at 51, 128 S. Ct. at 597.

The § 3553(a) factors to be considered by a sentencing

judge include, among others: (1) the nature and

circumstances of the offense and the history and

characteristics of the defendant; (2) the need for the

sentence imposed to reflect the seriousness of the offense,

to promote respect for the law, and to provide just

punishment for the offense; (3) the need to provide the

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defendant with needed [*920] medical care or other

correctional treatment; (4) the need to protect the public

from further crimes of the defendant; and (5) the

applicable Sentencing Guidelines range. 18 U.S.C. §

3553(a). A sentencing judge must also consider "the need

to avoid unwarranted sentence disparities among

defendants with similar records who have been found

guilty of similar conduct." 18 U.S.C. § 3553(a)(6).

A sentence is substantively unreasonable if it "does

not achieve the purposes of sentencing stated in §

3553(a)." United States v. Pugh, 515 F.3d 1179, 1191

(11th Cir. 2008) (citation and internal quotation marks

omitted). In addition, a sentence may be substantively

[**10] unreasonable if a district judge unjustifiably

relied on any one § 3553(a) factor, failed to consider

pertinent § 3553(a) factors, selected the sentence

arbitrarily, or based the sentence on impermissible

factors. Id. at 1191-92. "The weight to be accorded any

given § 3553(a) factor is a matter committed to the sound

discretion of the district court." United States v. Clay, 483

F.3d 739, 743 (11th Cir. 2007) (citation and internal

quotation marks omitted). The party challenging the

sentence has the burden of establishing that the sentence

is unreasonable based on the record and the § 3553(a)

factors. Dean, 635 F.3d at 1203-04.

Morrissette first argues his sentence is substantively

unreasonable, because his 78-month sentence is much

greater than the time-served sentence of Daniel Arnot, a

man sentenced in the Northern District of Georgia who

purportedly was convicted of similar conduct. Morrissette

has failed to establish Arnot has a similar criminal

history. See 18 U.S.C. § 3553(a)(6). In addition, the

district judge considered all of the § 3553(a) factors,

including mitigating evidence. Although the district judge

placed a great deal of weight on Morrissette's criminal

history, he had discretion to do so. Clay, 483 F.3d at 743.

Morrissette damaged numerous air conditioning units and

caused a significant amount of loss. His criminal history

is extensive, and none [**11] of his prior sentences have

deterred him from committing crimes. Accordingly,

under the totality of the circumstances and the § 3553(a)

factors, Morrissette's 78-month sentence is substantively

reasonable.

AFFIRMED.

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