UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5718

DONALD JARRELL,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

Elizabeth V. Hallanan, District Judge.

(CR-95-42)

Argued: September 27, 1996

Decided: December 3, 1996

Before MURNAGHAN, Circuit Judge, SMITH, United States

District Judge for the Eastern District of Virginia, sitting by

designation, and MICHAEL, Senior United States District Judge for

the Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

COUNSEL: Hunt Lee Charach, Federal Public Defender, Charleston,

West Virginia, for Appellant. Michael O. Callaghan, Assistant United

States Attorney, Charleston, West Virginia, for Appellee. ON

BRIEF: C. Cooper Fulton, Assistant Federal Public Defender,

Charleston, West Virginia, for Appellant. Rebecca A. Betts, United

States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Defendant Jarrell was charged in a seven count indictment of

attempting to conceal repeated discharges of fecal coliform pollutants

into the public waters, thereby polluting adjacent residential neighborhoods. Defendant pled guilty to the third count of the indictment,

which accused defendant of illegally discharging a pollutant above

the level permitted by a National Pollutant Discharge Elimination

System (NPDES) permit, in violation of 33 U.S.C.§ 1319(c)(2)(A).

After obtaining the customary presentence report, the trial court sentenced defendant to thirty months' imprisonment. During sentencing,

defendant argued that the court was misapplying the sentencing

guidelines, a contention that was rejected by the court. Defendant now

appeals the lower court's decisions regarding application of the sentencing guidelines.

Section 2Q1.3 of the sentencing guidelines establishes the base and

specific offense levels for crimes that involve the mishandling of

environmental pollutants. The commentary to § 2Q1.3 also permits a

trial judge to enhance or reduce a defendant's specific offense level

upon consideration of certain relevant factors. On appeal, defendant

argues that the court erred by assessing a two-point upwards assessment under § 2Q1.3 commentary note four and a two-point upwards

assessment under § 2Q1.3 commentary note seven. Specifically,

defendant contends that the two 2-point increases are duplicative,

unjustified, and unreasonable. We reject this argument.

The trial court established that defendant was subject to a base

offense level of six. It then used specific offense characteristics to

increase the total offense level. The court increased the total level by

six under § 2Q1.3(b)(1)(A), and by four under§ 2Q1.3(b)(4), for a

total offense level of sixteen. The court then increased the total

offense level by four, assessing two additional points based on com-

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mentary note four, and two additional points based on commentary

note seven.

Under the guidelines, the court may include a two-point enhancement under § 2Q1.3(b)(1) if the court feels that such an enhancement

is appropriate after considering "the harm resulting from the emission,

release or discharge, the quantity and nature of the substance or pollutant, the duration of the offense and the risk associated with the

violation." 1995 U.S.S.G. § 2Q1.3 commentary n.4. Similarly, the

guidelines permit a two-point enhancement under§ 2Q1.3(b)(4) if,

after considering "the nature and quantity of the substance involved

and the risk associated with the offense, such an adjustment appears

warranted." Id. § 2Q1.3 commentary n.7. Defendant argues that the

court cannot assess both enhancements because they are both based

on the same set of operative facts and considerations; namely, the

quantity and nature of the substance and the risk involved. He ignores

the fact that each enhancement has a different objective -- the first

to punish "an ongoing, continuous, or repetitive discharge, release or

emission of a pollutant into the environment," the second to punish

a discharge that occurs "without a permit or in violation of a permit."

Compare id. § 2Q1.3(b)(1)(A) with id. § 2Q1.3(b)(4). As this court

has previously recognized, the guidelines' "incremental adjustment

schedule" permits multiple enhancements under§ 2Q1.3. See United

States v. Ellen, 961 F.2d 462, 468-69 (4th Cir.), cert. denied, 506 U.S.

875 (1992).

Moreover, the district court explained in an extended colloquy that

the nature and seriousness of the offense justified each enhancement.

At one point, the court observed, "I could go on and on, but just to

indicate that this, in my opinion, is an extremely serious offense. It

was a health hazard. It was extremely nasty. It was so derelict on your

part, so deliberately derelict on your part." This court notes that on at

least three occasions, the Environmental Protection Agency conducted "grab sampling" of waste water areas around the treatment

plant and neighborhood subdivision. One sample contained 230,000

parts of fecal coliform per 100 milliliters of waste water. The second

sample contained 750,000 parts of fecal coliform per 100 milliliters

of waste water. The third sample contained 830,000 parts of fecal

coliform per 100 milliliters of waste water. Defendant's operating

permit allowed only 400 parts per 100 milliliters of waste water.

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Given the egregiousness of defendant's violations, it can hardly be

said that his offenses were of such a minor nature as to prompt this

court to hold that the district court abused its discretion in enhancing

defendant's specific offense level.

Defendant also argues that the district court erred in finding that a

six-point specific offense level was justified given that defendant pled

guilty to only one count of the indictment which did not lead to a

repetitive discharge. Determining that the entire breadth of defendant's "conduct involved substantially the same harm and the offense

behavior was on-going and continuous in nature," the lower court

assessed a six-point specific offense level under§ 2Q1.3(b)(1)(A).

Defendant argues that the offense to which he pled does not meet the

requirements for grouping under § 3D1.2, and that as a result, the

counts to which he did not plead guilty cannot be considered as relevant conduct for the purposes of determining whether defendant's

offense was of an ongoing nature.

In determining the applicable specific offense characteristic, a

court may consider "all acts and omissions . . . that were part of the

same course of conduct or common scheme or plan as the offense of

conviction" if such an act was "of a character for which § 3D1.2(d)

would require grouping of the multiple counts." 1995 U.S.S.G.

§ 1B1.3(a)(2). Under § 3D1.2(d), even though certain counts may not

be specifically listed for grouping, they should nonetheless be

grouped if appropriate; "a case-by-case determination must be made

upon the facts of the case and the applicable guidelines." In one of the

examples cited to support such grouping, the commentary notes that

three convictions for discharging toxic substances from a single facility would be grouped. Id. § 3D1.2 commentary n.6. The commentary

indicates that the drafters intended this type of offense to be of a character for which § 3D1.2(d) would require grouping. Therefore, even

though defendant was convicted of only one discharge violation, the

other discharges to which he did not plead guilty may be considered

for these purposes. See id. § 1B1.3 commentary n. 8 (noting that for

the purposes of determining relevant conduct, it is unnecessary for

defendant to have been convicted of all counts). Because the relevant

conduct includes the discharges to which defendant did not plead

guilty, they are nonetheless relevant for the purposes of determin-

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ing the specific offense level. Accordingly, it was appropriate for the

district court to assess a 6-point specific offense level under

§ 2Q1.3(b)(1)(A).

Finally, defendant argues that his 1975 state arson conviction

should not have been counted in determining his criminal history. He

finished serving his sentence in 1979. Defendant contends that

because the instant offense took place more than fifteen years later,

the former offense cannot be counted in the criminal history.

Defendant's entire argument is premised on the belief that the other

discharges to which he did not plead guilty should not be counted in

relevant conduct. As previously explained, these counts are counted

in determining relevant conduct. For the purposes of determining

when the fifteen year period should run, the court must look to the

earliest relevant conduct. Because count four of the indictment is relevant conduct that took place in 1992, the former offense of arson is

properly counted within the fifteen year period. Accordingly, the district court's calculation of defendant's criminal history level was correct.

For these reasons, defendant's appeal will be denied and the district

court's decision affirmed.

AFFIRMED

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