Filed: Dec. 23, 2013
Latest Update: Mar. 02, 2020
Summary: Case: 12-31234 Document: 00512480035 Page: 1 Date Filed: 12/23/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 12-31234 December 23, 2013 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff-Appellee, v. JOHN EMERSON TUMA, Defendant-Appellant. Appeal from the United States District Court for the Western District of Louisiana Before STEWART, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges. CARL E. STEWART, Chief Judge:
Summary: Case: 12-31234 Document: 00512480035 Page: 1 Date Filed: 12/23/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 12-31234 December 23, 2013 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff-Appellee, v. JOHN EMERSON TUMA, Defendant-Appellant. Appeal from the United States District Court for the Western District of Louisiana Before STEWART, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges. CARL E. STEWART, Chief Judge: ..
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Case: 12-31234 Document: 00512480035 Page: 1 Date Filed: 12/23/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 12-31234 December 23, 2013
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee,
v.
JOHN EMERSON TUMA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
Before STEWART, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
CARL E. STEWART, Chief Judge:
This is an appeal by Defendant-Appellant John Emerson Tuma (“Tuma”)
who was convicted of various crimes related to his involvement in disposing of
untreated wastewater. Tuma appeals both his convictions and sentence. For
the reasons provided herein, we AFFIRM.
FACTS AND PROCEDURAL HISTORY
The Clean Water Act (“CWA”) prohibits the discharge of pollutants 1 into
the waters of the United States without a permit or in violation of a permit.
1 “Pollutant[s]” for purposes of the CWA are defined in 40 C.F.R. § 122.2 as:
[D]redged spoil, solid waste, incinerator residue, filter
backwash, sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials (except those
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No. 12-31234
33 U.S.C. § 1311(a). In Louisiana, the Environmental Protection Agency
(“EPA”) has delegated the authority to issue and implement permits for these
discharges to the State. The Louisiana Department of Environmental Quality
(“LDEQ”) requires entities discharging from wastewater treatment plants to
obtain Louisiana Pollutant Discharge Elimination System (“LPDES”) permits.
The CWA also regulates the discharge of pollutants into sewer systems that
discharge directly into sewage treatment plants operated by municipal
governments known as publicly owned treatment works (“POTWs”). POTWs
must establish pretreatment programs setting requirements for industrial
users discharging pollutants into the POTWs. 33 U.S.C. § 1342(b)(8); 40 C.F.R.
§§ 403.1–403.20. Any person who knowingly discharges pollutants from a
point source 2 into the waters of the United States or to a POTW in violation of
the conditions of these permits or without a permit is subject to criminal
sanctions. 33 U.S.C. § 1319(c)(2).
Tuma owned Arkla Disposal Services, Inc. (“Arkla”), a wastewater
treatment facility in Shreveport, LA. At Arkla, the wastewater was supposed
to pass through filtration systems and various tanks as part of its processing
and purification before discharge. A series of these treatment and storage
tanks were on Arkla’s property and Arkla leased four off-site storage tanks. In
September 2006, Tuma sold Arkla to CCS Midstream Services (“CCS”).
According to his employees, Tuma retained control of Arkla.
regulated under the Atomic Energy Act of 1954, as amended (42
U.S.C.2011 et seq.)), heat, wrecked or discarded equipment,
rock, sand, cellar dirt and industrial, municipal, and
agricultural waste discharged into water.
2 A “[p]oint source” is defined as “any discernible, confined, and discrete conveyance,
including but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding operation, landfill leachate collection
system, vessel or other floating craft from which pollutants are or may be discharged.” 40
C.F.R. § 122.2.
2
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Arkla initially accepted only industrial waste, but later obtained
authorization to accept and discharge exploration and production waste
(“E&P”). Louisiana authorized the plant to discharge to Shreveport’s POTW
from June 13, 2006 to the end of 2006 and again from July 1, 2007 until March
2, 2008. Arkla’s permit set limits on the levels of pH, oil, grease, biochemical
oxygen demand, and total suspended solids. It permitted daily discharge only
from Tank B-1. The discharge had to be by batch, meaning that a sample
would be taken of the water in Tank B-1 in the morning and no additional
water could be added after the sample had been taken. The sample would be
given to the Pretreatment Office which would approve or disapprove of the
batch. Only an approved batch could then be discharged. From December 7,
2006 through June 30, 2007, an LDEQ compliance order authorized Arkla to
discharge to the Red River subject to interim effluent discharge limitations
contained in the compliance order.
Tank B-1 was filled with clean well or city water, sometimes mixed with
unprocessed water, which was sampled, approved, and discharged to the
POTW. The facility then discharged from other tanks illegally all day and
night without any testing, sampling, or city approval to the POTW and the Red
River. The key employees involved in these acts were Wayne Mallet, Todd
Cage, and Tuma’s son Cody Tuma (“Cody”). These employees followed Tuma’s
instructions to illegally discharge the water, watch for regulators, bypass
monitoring systems, and check the river for pollution. According to the
employees’ accounts, Tuma ran a sham plant.
In October 2007, Cage and another employee reported allegations of the
misconduct to CCS, who opened an internal investigation. CCS determined
that when Arkla began accepting E&P waste the volume of wastewater
increased significantly and Tuma incentivized this large supply. Arkla had
discharged untreated water to keep up with this supply. CCS fired both Tuma
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and Cody and reported its findings to the EPA, who opened its own
investigation.
On February 24, 2011, Tuma was indicted with Cody, and charged with
one count of conspiracy in violation of 18 U.S.C. § 371, one count of discharging
untreated wastewater without complying with the requirements of the permit
issued to Arkla in violation of 33 U.S.C. § 1319(c)(2)(A) and 18 U.S.C. § 2, two
counts of discharging without a permit from an outfall at the plant to the Red
River in violation of 33 U.S.C. § 1311(a), 1319(c)(2)(A) and 18 U.S.C. § 2, and
one count of obstruction of an EPA investigation in violation of 18 U.S.C. §§ 2
and 1505. Cody entered a guilty plea to one count of a misdemeanor violation
for discharging without a permit, and he testified against his father at trial.
At trial, Cody, Cage, Mallet, plant employees, city inspectors, contractors, and
an EPA engineer testified against Tuma. The defense presented the testimony
of Tuma, a lawyer for Tuma’s plant, employees of the lab that tested the B-1
Tank, and an employee of the plant. The jury convicted Tuma on all counts
after an eight-day trial. The district court denied Tuma’s motions for a new
trial and to reconsider the verdict.
At Tuma’s sentencing, the district court adopted the pre-sentence
investigation report (“PSR”) with the exception of a four-level enhancement
under United States Sentencing Guidelines (“U.S.S.G.” or “Guideline”)
§ 2Q1.3(b)(3) for substantial expenditure for clean-up. The PSR yielded a
Guideline range of 51 to 63 months of imprisonment based on a resulting
offense level of 24 and a criminal history category I. The district court
sentenced Tuma to the statutory maximum of 60 months for counts one and
five and to 36 months for counts two through four, all running concurrently.
The district court also sentenced Tuma to a three-year term of supervised
release on all counts, running concurrently, a $100,000 fine, and a $500
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payment to the Crime Victims Fund. Tuma timely appealed his convictions
and sentence.
DISCUSSION
Tuma raises several constitutional and substantive challenges to his
convictions. He also raises challenges to his sentence on multiple fronts. We
address each claim in turn.
A. Tuma’s Challenges to His Convictions
Tuma alleges that his constitutional rights were violated by a series of
decisions made by the district court. Specifically, he challenges the district
court’s decisions to: 1) exclude evidence and testimony related to the lack of
environmental harm caused by the discharges and about the plant’s process;
2) deny Tuma’s Federal Rule of Criminal Procedure 15(a) request to depose the
foreign CEO of CCS; and 3) restrict the cross-examination of Cody and exclude
certain defense witnesses. He also claims that the cumulative effect of these
alleged errors requires reversal. 3
1. Exclusion of Evidence and Testimony
The district court granted the government’s motion in limine and
excluded certain evidence from trial. First, the district court excluded evidence
about the lack of environmental harm caused by the discharges because it was
irrelevant. 4 Such evidence was not required to prove any of the offenses and
did not support any affirmative defense to the crimes charged. Second, the
district court preliminarily excluded evidence about the plant’s operation and
processes because it was irrelevant. Ultimately, the district court allowed
3 Tuma also asserts throughout his brief that these evidentiary decisions violated his
constitutional “right to present a defense.” Because he fails to provide any analysis of this
claim, it is waived and we need not address it. United States v. Reagan, 596 F.3d 251, 254–
55 (5th Cir. 2010).
4 In a footnote in its order, the district court said that even if evidence of
environmental harm were relevant it would be excluded under Federal Rule of Evidence 403.
5
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Tuma to discuss the plant’s processes in his testimony. At trial, Tuma
proffered several witnesses, including Charles Tubbs, who would have testified
about the lack of environmental harm in an effort to discredit the government’s
witnesses. The district court after considering the proffers excluded the
testimony. Tuma challenged the decision to exclude Tubbs in his motion for a
new trial, which the district court also denied.
“We review a district court’s evidentiary rulings for an abuse of
discretion.” United States v. George, 201 F.3d 370, 372 (5th Cir. 2000).
However, any error made in excluding evidence is subject to the harmless error
doctrine and “does not necessitate reversal unless it affected the defendant’s
substantial rights.” United States v. Shows, 307 F. App’x 818, 823 (5th Cir.
2009) (per curiam) (unpublished) (citing United States v. Lowery,
135 F.3d 957,
959 (5th Cir. 1998)). In assessing any error, we “must consider the other
evidence in the case and determine whether the improperly excluded evidence,
if admitted, would have had a substantial impact on the jury’s verdict.” United
States v. Alvarez Cala, 133 F. App’x 89, 92 (5th Cir. 2005) (per curiam)
(unpublished) (internal quotation marks and citation omitted).
We conclude that even if the district court abused its discretion in
excluding this evidence, Tuma has not shown that the error affected his
substantial rights. Evidence of environmental harm is not an element of any
of the charged offenses nor would the lack of environmental harm absolve
Tuma of criminal liability—liability based solely on the act of discharging
untreated water. See 33 U.S.C. §§ 1319(c)(2)(A), 1311(a); Chevron, U.S.A., Inc.
v. Yost, 919 F.2d 27, 30–31 (5th Cir. 1990). Tuma has not demonstrated that
if the evidence were introduced the jury would have chosen to believe him and
disbelieve the government’s witnesses and find him not guilty. See United
States v. Garcia-Macias, 206 F. App’x 376, 377 (5th Cir. 2006) (per curiam)
(unpublished) (affirming the district court’s judgment because the defendant
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had failed to demonstrate the jury would have believed her testimony if the
evidence was not excluded). Turning to the evidence of the plant’s processes,
Tuma presented substantial evidence on this to the jury. Any error in
excluding this evidence was harmless and did not affect Tuma’s substantial
rights.
2. Inability to Depose the CEO of CCS
Tuma sought to have CCS’s CEO testify that it had thoroughly inspected
Arkla before buying it, found it operational, and continued to operate it.
Because Tuma could not subpoena the Canadian CEO, he moved for the
issuance of letters rogatory to depose the CEO, pursuant to 28 U.S.C.
§ 1781(b)(2). 5 Tuma argued that the CEO possessed information relevant to
his defense and that it was discoverable. The district court denied this request
because it did not find the need to depose the CEO exceptional as required by
Federal Rule of Criminal Procedure 15(a).
We review violations of the compulsory process clause de novo, but the
defendant must demonstrate the necessity of the witness’s testimony. United
States v. Soape, 169 F.3d 257, 267–68 (5th Cir. 1999). We review a district
court’s Rule 15(a) decisions for abuse of discretion. United States v. Allie,
978
F.2d 1401, 1405 (5th Cir. 1992). Any error committed by the district court in
denying a Rule 15(a) motion is subject to a harmless error analysis. See United
States v. Dillman,
15 F.3d 384, 389 (5th Cir. 1994) (finding any error
committed by the district court in making a Rule 15(a) decision harmless). We
also review a district court’s decision to deny the issuance of letters rogatory
5 28 U.S.C. § 1781(b)(2) allows courts to issue letters rogatory directly to a foreign
tribunal or agency. Letters rogatory are “a formal request from a court in one country to the
appropriate judicial authorities in another country that can effectuate service of process” on
individuals in that country. Magness v. Russian Fed’n, 247 F.3d 609, 614 n.10 (5th Cir. 2001).
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for abuse of discretion. United States v. El-Mezain, 664 F.3d 467, 517 (5th Cir.
2011).
We hold that there was no violation of Tuma’s right to compulsory
process. It is well-established that a conviction is constitutional and does not
violate a defendant’s right to compulsory process even when the court lacks the
power to subpoena potential defense witnesses from foreign countries. United
States v. Zabaneh, 837 F.2d 1249, 1259–60 (5th Cir. 1988).
Further, there was no abuse of the district court’s discretion in denying
Tuma’s request for letters rogatory, which the district court treated as a Rule
15(a) motion. 6 Rule 15(a) provides that a “court may grant the motion [to take
a witness’s deposition] because of exceptional circumstances and in the interest
of justice.” Fed. R. Crim. P. 15(a). The district court did not abuse its
considerable discretion in concluding that there were no “exceptional
circumstances” in this case. Tuma bears the burden of proof on this issue and
he has failed to meet that burden. See Allie, 978 F.2d at 1404–05. Tuma made
only conclusory allegations that the CEO possessed relevant information to his
defense. However, even assuming that the CEO personally possessed this
information, the CEO could only demonstrate that CCS believed Arkla was
operational in September 2006. The indictment charged continuous
misconduct that occurred for more than a year after that point. It was CCS’s
own internal investigation that eventually led to this indictment. Further,
even if there were error by the district court, such error would be harmless as
Tuma has not demonstrated that this decision affected his substantial rights.
6 We recognize these have been treated as two separate means for obtaining
evidence—the issuance of letters rogatory or a Rule 15(a) deposition—even in criminal cases.
See United States v. Sensi, 879 F.2d 888, 899 (D.C. Cir. 1989). Neither party raises the issue
of whether Rule 15(a)’s exceptional circumstances requirement should apply to the request
for issuance of letters rogatory; therefore, we need not address it and assume without
deciding that it does.
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3. Restricted Cross-Examination and Exclusion of Witnesses
Tuma next argues that the district court violated his right to confront
the witnesses against him by limiting his cross-examination of Cody. He
argues that he was unable to demonstrate Cody’s bias against him and Cody’s
true motives for testifying. Additionally, Tuma argues he was unable to
impeach Cody’s stated motives for testifying because the court excluded the
testimony of witnesses who could impeach him. For the first time on appeal,
Tuma challenges the denial of his motion to reconsider the denial of his motion
for a new trial.
The district court limited both Cody’s and Tuma’s testimony relating to
a custody case against Cody’s current wife brought by his ex-wife. Specifically,
the district court excluded testimony about the particular abuse allegations,
but allowed testimony concerning Tuma’s refusal to give Cody money to find a
lawyer for the custody dispute. The district court excluded a letter the defense
sought to introduce that Cody’s current wife had written him under Federal
Rules of Evidence 403 and 608(b). 7 The district court struck, without any
argument from the defense, two defense witnesses, Cody’s ex-wife and his
current wife, because it believed each would testify about the custody dispute—
a domestic matter that had nothing to do with the illegal discharges. On a
motion to reconsider the denial of Tuma’s motion for a new trial, the defense
submitted an affidavit from Cody’s ex-wife that she would have testified to
facts that allegedly impeached Cody’s stated reasons for testifying against
Tuma.
We review alleged constitutional violations of the confrontation clause
de novo, subject to a harmless error analysis. United States v. Jimenez, 464
7 The court determined that its probative value was substantially outweighed by the
danger of unfair prejudice, confusion, misleading the jury, and that it was a waste of time as
well as an attempt to impeach the witness with extrinsic evidence.
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F.3d 555, 558 (5th Cir. 2006). If there is no constitutional violation, this court
reviews any limitation on a defendant’s right of cross-examination for abuse of
discretion. Id. at 558–59. We will not find an abuse of discretion unless the
limitations were clearly prejudicial.
El-Mezain, 664 F.3d at 491. We review a
district court’s evidentiary rulings for abuse of discretion subject to a harmless
error analysis.
George, 201 F.3d at 372.
We examine the trial testimony to determine whether there was a
violation of a defendant’s right to confront the witnesses against him. Jimenez,
464 F.3d at 559. The record reflects an extensive cross-examination of Cody.
To the extent the district court excluded testimony about the specifics of the
custody case, this does not amount to a violation of Tuma’s constitutional
rights. It was well within the district court’s discretion to impose this
reasonable limit. See United States v. Diaz,
637 F.3d 592, 597 (5th Cir. 2011)
(stating that a district court has discretion “to place reasonable limits on a
criminal defendant’s right to cross-examine a witness based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only marginally relevant”
(internal quotation marks and citation omitted)). Between Tuma and Cody’s
testimony the jury had sufficient information to appraise Cody’s bias and
motives to testify against his father. See
id. (stating that this court looks into
“whether the jury had sufficient information to appraise the bias and motives
of the witness” (internal quotation marks and citation omitted)). The jury
knew that there was a custody dispute between Cody and his ex-wife Kristin
and that Tuma supported Kristin in the dispute and refused to assist his son.
Further, there was no abuse of discretion by the district court when it
did not admit the letter or allow cross-examination on it. The letter’s probative
value was outweighed by the danger of unfair prejudice, misleading the jury,
and wasting time. These are appropriate reasons for excluding the letter. Fed.
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R. Evid. 403. As substantive evidence, it would have been impermissible and
as such was properly excluded by the district court. Fed. R. Evid. 608(b).
Tuma did not object or make any proffer regarding the exclusion of the
two defense witnesses at trial; therefore, his claim is reviewable for plain error
only. United States v. McRae, 702 F.3d 806, 832 (5th Cir. 2012). Plain error
review involves four prongs: (1) there must be error; (2) it must be clear or
obvious; (3) it must have affected defendant’s substantial rights; and (4) the
court will exercise its discretion and remedy the error only if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.”
Id.
at 832–33 (quoting United States v. Delgado,
672 F.3d 320, 329 (5th Cir. 2012)
(en banc) (alterations in original)). Even assuming the first two prongs of the
analysis are satisfied the error did not affect Tuma’s substantial rights. The
jury had sufficient information to appraise Cody’s bias and motive for testifying
against Tuma, which the excluded testimony would have reiterated. The jury
knew of Cody’s past and that he had previously made false statements under
oath on multiple occasions. Even if the jury would have discounted Cody’s
testimony, the other government witnesses confirmed it. There was no plain
error in excluding these witnesses.
Finally, Tuma’s appeal of the denial of his motion to reconsider his
motion for a new trial raised for the first time in his reply brief is reviewable
only if necessary to prevent a miscarriage of justice. See United States v.
Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010) (“[O]ur court generally will not
consider an issue raised for the first time in a reply brief.”). Given the above
analysis, we conclude there was no injustice in the denial of this motion to
reconsider.
4. Cumulative Effect of the Alleged Errors
We have recognized that “the cumulative effect of a series of errors may
require reversal, even though a single one of those errors, standing alone,
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would not require such a result.” United States v. Villareal, 324 F.3d 319, 328
(5th Cir. 2003) (citation omitted). “The doctrine justifies reversal only in the
unusual case in which synergistic or repetitive error violates the defendant’s
constitutional right to a fair trial.” United States v. Delgado,
672 F.3d 320, 344
(5th Cir. 2012) (en banc). Having found at most harmless error by the district
court, we decline to apply this doctrine to this case. See
id.
B. Tuma’s Challenges to His Sentence
Tuma raises several challenges to his sentence. Specifically, he
challenges four provisions of the Guidelines that the district court relied on to
enhance his sentence. He also challenges the district court’s denial of his
request for an evidentiary hearing and the denial of several departures that he
sought pursuant to the commentary in the applicable Guidelines’ sections.
Finally, he challenges the substantive reasonableness of his sentence.
We review legal conclusions made by a district court at sentencing,
including the interpretation and application of the Guidelines, de novo. United
States v. Whitfield, 590 F.3d 325, 365 (5th Cir. 2009). We review for clear error
factual determinations by the district court made in applying the Guidelines.
Id. at 365–66. We also review the district court’s determination that a
defendant was an organizer or leader for clear error. United States v. Davis,
226 F.3d 346, 360 (5th Cir. 2000). We review for abuse of discretion the denial
of an evidentiary hearing at sentencing. United States v. Hass,
199 F.3d 749,
751 (5th Cir. 1999).
We lack jurisdiction to review the denial of a downward departure unless
the district court’s denial resulted from a mistaken belief that the Guidelines
do not give it authority to depart. United States v. Sam, 467 F.3d 857, 861 (5th
Cir. 2006). This rule applies to departures found in both Chapter 5, Part K of
the Guidelines and in the commentary to the Guidelines. See
id. (applying the
rule to a departure in Chapter 5, Part K); United States v. Molina, 490 F. App’x
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674, 675 (5th Cir. 2012) (per curiam) (unpublished) (applying the rule to the
departures in the commentary of U.S.S.G. § 2M5.2); United States v. LeBlanc,
119 F. App’x 654, 656 (5th Cir. 2005) (per curiam) (unpublished) (applying the
rule to the departures in the commentary to U.S.S.G. § 2Q1.3). We conclude
that Tuma’s argument against this rule’s application to departures in the
commentary is without merit. Departures in Chapter 5, Part K of the
Guidelines are specifically identified as policy statements, see U.S.S.G. §§
5K1.1–3.1, and the Guidelines provide that commentary suggesting
circumstances that may warrant a departure have the legal significance of
policy statements, U.S.S.G. § 1B1.7. Therefore, these are both subject to the
jurisdictional rule stated above.
1. Enhancement Pursuant to U.S.S.G. § 2Q1.3(b)(4)
The district court applied a four-level increase to Tuma’s offense level
pursuant to U.S.S.G. § 2Q1.3(b)(4). U.S.S.G. § 2Q1.3(b)(4) provides that “[i]f
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 commentary to this
subsection 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 direction may be warranted.” Id. § 2Q1.3 cmt. n.7. The
district court declined to apply the upward departure sought by the
government and the two-level downward departure sought by Tuma.
Tuma argues that the district court misapplied the Guideline section and
failed to weigh all the relevant factors in its decision. We hold that there was
no error by the district court in applying this enhancement to Tuma whose
conduct the enhancement plainly encompassed. We lack jurisdiction to review
the denial of this departure unless the district court had a mistaken belief that
it did not have the authority to make the departure. See LeBlanc, 119 F. App’x
at 656. Here, the district court clearly considered the departure and chose not
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to apply it in light of the quantity of the discharges involved. Therefore, we
will not review the denial of this departure.
2. Enhancement Pursuant to U.S.S.G. § 2Q1.3(b)(1)(A)
The district court applied a six-level enhancement pursuant to U.S.S.G.
§ 2Q1.3(b)(1)(A) for ongoing, repetitive, continuous discharge of a pollutant.
This Guideline subsection states that “[i]f 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.” U.S.S.G. §
2Q1.3(b)(1). The commentary addressing this subsection states that it
“assumes a discharge or emission into the environment resulting in actual
environmental contamination.” U.S.S.G. § 2Q1.3 cmt. n.4. The commentary
also provides for a departure of up to two levels in either direction “[d]epending
upon 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 . . . .” Id. Tuma sought: (1) a downward
departure based on the absence of any proof of environmental contamination,
or (2) an evidentiary hearing to prove lack of contamination. The district court
denied both requests and imposed the full six-level enhancement.
We have recognized that U.S.S.G. § 2Q1.2(b)(1)(A) 8 assumes
environmental harm, allowing for departures based on the degree of harm.
United States v. Goldfaden, 959 F.2d 1324, 1331 (5th Cir. 1992). Tuma does
not challenge that we also assume contamination for purposes of applying
U.S.S.G. § 2Q1.3(b)(1)(A). In a footnote in his brief, Tuma only preserves his
8 Section 2Q1.2 applies to the “mishandling of hazardous or toxic substances or
pesticides; recordkeeping, tampering and falsification; unlawful transportation of hazardous
materials in commerce.” Section 2Q1.3 applies to the “mishandling of other environmental
pollutants; recordkeeping, tampering, and falsification.” Subsection (b)(1)(A) in both § 2Q1.2
and § 2Q1.3 and the commentary accompanying these sections are identical.
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general objection to this rule of law and provides no legal or factual analysis.
Therefore, we need not address this argument. United States v. Reagan, 596
F.3d 251, 254–55 (5th Cir. 2010). Instead, Tuma argues that the district court
erred by declining to grant the downward departure when there was no
evidence of environmental contamination presented to the court. We do not
have jurisdiction to review this claim because the district court understood its
authority to grant the departure. See LeBlanc, 119 F. App’x at 656. The
district court considered and evaluated Tuma’s arguments as well as the
guidance in the commentary.
To the extent Tuma also challenges the application of U.S.S.G.
§ 2Q1.3(b)(1)(A) to increase his offense level, such arguments are also
unavailing. The district court properly applied the enhancement to Tuma.
There was evidence of repeated discharges over a significant period of time,
constituting “ongoing, continuous, or repetitive” conduct. There was no
misapplication or misinterpretation of § 2Q1.3(b)(1)(A) by the district court.
Tuma also argues that the Supreme Court’s recent decision in Alleyne v.
United States, 133 S. Ct. 2151 (2013), mandates that any fact that increases
the defendant’s minimum sentence—in Tuma’s case the environmental
contamination—must be found by a jury. 9 This argument is unavailing. The
Alleyne decision applies only to facts that increase a statutory mandatory
minimum sentence.
Id. at 2158. The Court specifically cautioned that “[o]ur
ruling today does not mean that any fact that influences judicial discretion
must be found by a jury. We have long recognized that broad sentencing
discretion, informed by judicial factfinding, does not violate the Sixth
Amendment.”
Id. at 2163 (citation omitted). Tuma’s sentence did not expose
9 Tuma first makes this argument in his reply brief and although typically such an
argument would be waived, Alleyne was decided after the original briefs had been submitted
to this court. Therefore, we consider his argument.
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him to a mandatory minimum sentence and was well within the sentencing
discretion of the district court; therefore, Alleyne is inapplicable. See United
States v. Neuner, No. 12-10915, 2013 WL 3456747, at *3 n.3 (5th Cir. July 10,
2013) (per curiam) (unpublished) (holding Alleyne inapplicable because
“[u]nlike the statutory framework in Alleyne’s mandatory minimum sentence,
[defendant’s] statutory penalties did not expose him to a mandatory minimum
sentence and none was pronounced”).
3. Denial of Request for Evidentiary Hearing
Tuma argues that the district court erred by refusing to hold an
evidentiary hearing at sentencing, particularly on the issue of environmental
harm. However, we have recognized that there is no abuse of discretion when
a defendant has an opportunity to review the PSR and submit formal
objections to it. United States v. Patten, 40 F.3d 774, 777 (5th Cir. 1994) (per
curiam). Here, Tuma had an opportunity to review the PSR, file extensive
formal objections to the enhancements sought by the government, and submit
an affidavit from Tubbs concerning the lack of environmental harm. The
district court inquired into whether the parties had anything additional to
submit or argue at sentencing and Tuma did not. There was no abuse of the
district court’s discretion in declining to conduct a full evidentiary hearing
given these facts.
4. Enhancement for Role in the Offense
Tuma next challenges a four-level enhancement the district court
applied for his role in the offense. The applicable Guideline provision provides
that: “If the defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive, increase by 4
levels.” U.S.S.G. § 3B1.1(a). The commentary provides that: “In assessing
whether an organization is ‘otherwise extensive,’ all persons involved during
the course of the entire offense are to be considered. Thus, a fraud that
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involved only three participants but used the unknowing services of many
outsiders could be considered extensive.” Id. § 3B1.1 cmt. n.3. 10 The district
court imposed this enhancement regardless of the number of participants
because it found that Tuma’s activities were “otherwise extensive.”
There was no clear error by the district court in applying this four-level
enhancement to Tuma. We have held that “[i]n deciding whether a scheme
was otherwise extensive, the district court must take into account all persons
involved during the course of the entire offense.” United States v. Ho, 311 F.3d
589, 611 (5th Cir. 2002) (alteration in original) (internal quotation marks and
citation omitted). This includes taking into account unknowing participants
who contributed to the success of the criminal enterprise. United States v.
Vogel, 459 Fed. App’x 439, 442 (5th Cir. 2012) (unpublished). The district court
properly focused on the number of people involved in the scheme including the
unknowing participants, such as the truck drivers transporting the
wastewater and the contractors. These unknowing participants were essential
to the crime; without their participation Tuma’s activities could not have
happened or continued.
5. Enhancement for Obstruction of Justice
Tuma challenges the constitutionality of a two-level increase the district
court imposed for obstruction of justice based on Tuma’s perjury at trial. Tuma
argues that the application of the enhancement deprives him of his ability to
put on a defense and interferes with his right to testify. However, a criminal
defendant cannot argue that increasing his sentence based on his perjury
10Factors to be considered in applying this enhancement are: “(1) exercise of decision-
making authority; (2) nature of participation in the commission of the offense; (3) recruitment
of accomplices; (4) claimed right to a larger share of the fruits of the crime; (5) degree of
participation in planning or organizing; (6) nature and scope of the illegal activity; and (7)
degree of control or authority exercised over others.” United States v. Fullwood, 342 F.3d
409, 415 (5th Cir. 2003) (citing U.S.S.G. § 3B1.1 cmt. n.4.).
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interfered with his right to testify because a defendant’s right to testify does
not include a right to commit perjury. United States v. Dunnigan, 507 U.S. 87,
96–98 (1993). Tuma acknowledges this precedent, briefly argues it was
wrongly decided, and writes to preserve the issue. Dunnigan forecloses Tuma’s
argument. See United States v. Ceballos-Amaya, 470 F. App’x 254, 263 (5th
Cir. 2012) (per curiam) (unpublished) (“[Defendant] acknowledges the
Supreme Court’s ruling in Dunnigan but maintains that the decision was
wrongly decided. As such, [defendant’s] argument is foreclosed.”).
6. Reasonableness of Sentence
Finally, Tuma challenges the substantive reasonableness of his
sentence. Tuma argues that the district court never explained how the
sentencing factors in 18 U.S.C. § 3553 applied to his case. He alleges it
mechanically imposed a Guideline sentence, and in doing so, abused its
discretion. Addressing the statutory factors, Tuma argues that the district
court failed to consider: (1) the lack of environmental harm, which indicates
the crimes were less severe; (2) Tuma’s tragic past and unblemished life; (3)
the sentences of others who have pled guilty to environmental offenses; and (4)
the court’s own finding that Tuma would not reoffend nor would the public
need protection from him.
We review challenges to sentences for reasonableness for abuse of
discretion only. United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th
Cir. 2009). This review occurs in two parts.
Id. First, this court considers
whether there was a procedural error made by the district court.
Id.
Procedural errors include “miscalculating or failing to calculate the sentencing
range under the Guidelines, treating the Guidelines as mandatory, [or] failing
to consider the § 3553(a) factors . . . .”
Id. (citation omitted). If there is no
procedural error, then this court “engages in a substantive review based on the
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totality of the circumstances.” Id. (citations omitted). “[A] sentence within the
Guidelines range is presumed reasonable on appeal.
Id.
We conclude that the district court did not abuse its discretion in this
case. First, there was no procedural error. The district court at sentencing
noted several times that he had read and considered the “copious briefs,” the
objections to the PSR, sentencing memorandum, and reply memorandum. The
district court stated that it had “studied the provisions of 3553(a)” and its
factors at sentencing. Because of the district court’s reference to the
arguments made in the briefs and sentencing memorandum, we look to these
documents to determine if they provide adequate information about the factors
the district court considered and whether the district court’s reasons were
adequate. See United States v. Bonilla,
524 F.3d 647, 658 (5th Cir. 2008).
These documents include arguments by both sides on the § 3553(a) factors and
each factor’s application, providing clarification on what the court considered
at sentencing. By examining the record in full, the district court’s reasons for
the chosen sentence are clear and this court can review them. We conclude
that there is no procedural error here.
Finding no procedural error, we next consider the substantive
reasonableness of Tuma’s sentence. Because the sentence was within the
Guideline range it is presumed substantively reasonable. United States v.
Diaz Sanchez, 714 F.3d 289, 295 (5th Cir. 2013). Tuma has not rebutted this
presumption with evidence that the district court improperly considered a
factor, failed to take into account a factor, or made a clear error in balancing
the factors. See
id. (“The presumption is rebutted only upon a showing that
the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” (internal
quotation marks and citation omitted)). The government persuasively
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demonstrates that the nature and circumstances of the offense were serious,
Tuma’s history and personal resolve were not unique, and the sentencing
disparities alleged by Tuma were warranted by a factual comparison of the
defendants. Given these facts, the district court did not abuse its discretion in
weighing the factors and applying a presumptively reasonable within-the-
Guidelines sentence.
CONCLUSION
For the aforementioned reasons, we AFFIRM Tuma’s convictions and
sentence.
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