IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

NO. 95-11210 _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, Versus

REGINALD GIST,

Defendant-Appellant.

_____________________

Appeal from the United States District Court for the Northern District of Texas _____________________

November 22, 1996

Before KING and HIGGINBOTHAM, Circuit Judges, and KAZEN*, District

Judge.

KAZEN, District Judge:

Appellant Reginald B. Gist pled guilty to Counts 1 and 5 of a

superseding indictment charging violations of the federal Resource

Conservation and Recovery Act (“RCRA”) and the regulations

promulgated thereunder. His sole complaint on appeal is that for

sentencing under the guidelines, both counts should have been

placed in a “single group” within the meaning of USSG §3D1.2.

Finding no error, we affirm.

*District Judge for the Southern District of Texas, sitting by designation. Count 1--Balch Springs. In August 1986, Appellant Gist and

others began operating High Tech Plating, Inc., a zinc-cyanide

electroplating business located on leased property in the Dallas

suburb of Balch Springs, Texas. The electroplating process

involved liquid solutions containing a number of toxic and

corrosive hazardous substances, including acids, cyanides,

chromium, and zinc. Before these liquids could be properly

disposed of through the sewer system, they should have been treated

with chemicals to precipitate out the metals, neutralize the

cyanide, and bring the pH of the acid solutions into an acceptable

range. Instead, High Tech poured plating solutions down the sewer

with inadequate or no pretreatment and sometimes simply drained the

solutions onto the outside ground. Also, plating vats sometimes

leaked onto the floor, and spilled hazardous wastes were then swept

outside. This conduct continued despite repeated warnings from the

Dallas County Water Control and Improvement District No.6 that High

Tech’s discharge exceeded legal limits for various hazardous

substances. Finally, in October 1989, the District disconnected

the sewer line and also required that High Tech submit written

plans for future waste disposal, including EPA carrier registration

numbers if the waste was to be transported and documentation that

the waste was to be disposed of at an EPA-registered and approved

facility.

Instead of complying with those requirements, Gist abandoned

the High Tech facility in January 1990. Left behind were 54 vats,

containing 72,000 gallons of highly acidic and toxic wastes. Also left behind were drums and barrels of unused acids, cyanides, and

other chemicals. The EPA subsequently declared the High Tech

facility a “Superfund” site under the Comprehensive Environmental

Response, Compensation and Liability Act(“CERCLA”),

et seq. The site cleanup cost over $300,000.00.

Count 1 of the superseding indictment charged that on or about

January 23, 1990, Gist knowingly disposed of hazardous wastes at

High Tech Plating in Balch Springs without having first obtained a

permit, by abandoning the Balch Springs facility and leaving the

hazardous wastes at the abandoned facility.

(d)(2)(A).

Count 5--Forney. Even before abandoning High Tech Plating at

Balch Springs, Gist leased a facility at the Forney Industrial Park

in Forney, Texas, where he started Metal Plating Systems, Inc.,

which operated from January 1990 to August 1992. This site also

generated large quantities of hazardous wastes, including spent

cyanide plating bath solutions and treatment sludges. When the

septic tank filled with plating sludge and the sewage field backed

up, Gist would pump used plating solution into truck tanks and

discharge it elsewhere. Once, for example, he pretended to be

washing a truck at a car wash while he opened the valve on the

truck and allowed the hazardous solution to pour into the sewer

drain. He also caused an employee to drive on a country road at

night while draining solution from the back of the truck. Finally,

he disposed of wastes by transporting them to property he owned at

Lake Fork, Texas, where the wastes were burned, buried and drained

3 onto the ground.

Count 5 charged that from approximately July 1991 to March

1993, Gist knowingly transported hazardous waste from Metal Plating

Systems at Forney to a location at Lake Fork, Texas, a facility

which did not have a permit. 42 U.S.C.§6928 (d)(1).

The Sentence Calculation. The Presentence Report scored

Counts 1 and 5 under USSG §2Q1.2. Making appropriate adjustments

for specific offense characteristics and role in the offense, Count

1 was scored at an offense level of 24 and Count 5 at offense level

20. Using USSG §3D1.4, the combined offense level for the two

counts was adjusted from 24 to 26. A 3-level downward adjustment

was made for acceptance of responsibility, and Gist was sentenced

at guideline level 23 to 51 months’ confinement. Gist argues that

under USSG 3D1.2, Counts 1 and 5 should have been combined into a

single group, which would have yielded an offense level of 24 and

ultimately a sentence at guideline level 21.

USSG §3D1.2(b)--Same Victim? Gist argues that Counts 1 and 5

should have been grouped because they involve the same victim.

USSG §3D1.2(b) He invokes the Commentary, Application Note 2,

which states that where there are “no identifiable victims,” the

victim is “the societal interest that is harmed” and that counts

should be grouped when those societal interests are closely

related.

As the Government notes, when Gist abandoned the High Tech

Plating site, leaving behind corroded vats, drums and soil, the

victims included the landlord, surrounding landowners and their

4 families, and the EPA which spent over $300,000.00 in cleanup cost.

The conduct addressed in Count 5 involved a different facility at

a different location and at a later time. Different surrounding

landowners and recreational users of a nearby lake were victims of

Gist’s illegal conduct in Count 5.

We conclude that the district court correctly found

identifiable victims in this case, that those victims were

different in Counts 1 and 5, and that USSG §3D1.2(b) was therefore

inapplicable.

USSG §3D1.2(d)--Ongoing Behavior? Gist’s more cogent argument

involves USSG §3D1.2(d), which provides for offense grouping “if

the offense behavior is ongoing or continuous in nature and the

offense guideline is written to cover such behavior”. For both

Counts 1 and 5, the presentence report increased the base offense

level by 6 under a specific offense characteristic applied when an

offense resulted in an “ongoing, continuous, or repetitive

discharge, release, or emission of a hazardous or toxic substance”.

USSG §2Q1.2(b)(1)(A). Gist argues that this specific offense

characteristic triggers the application of §3D1.2(d). We disagree.

USSG §3D1.2 is not a model of clarity, and the extensive

Commentary which follows it does not discuss the particular phrase

in Subsection (d) upon which Defendant relies. Nevertheless,

several observations are pertinent. First, the penultimate

paragraph in the Commentary states that a “primary consideration”

militating against grouping is whether the offenses involve

different victims. Next, §3D1.2 lists several guidelines which are

5 explicitly intended to be grouped under Subsection (d). USSG

§2Q1.2 is not one of these. Accordingly, a sentencing court is

required to make “a case-by-case determination...based on the facts

of the case” to determine whether grouping is appropriate.

Further, the Commentary, Application Note 6, discussing Subsection

(d) of §3D1.2 contains this example: “(7) The defendant is

convicted of three counts of discharging toxic substances from a

single facility. The counts are to be grouped together.” By

implication, counts charging a defendant with discharging toxic

substances from different facilities at different times would not

be grouped together.

Because Gist’s criminal conduct was “ongoing” at the Balch

Springs site and was also “ongoing” at the Forney/Lake Fork site,

the district court properly applied the specific offense

characteristic in §2Q1.2(b)(1)(A) to each count. Nevertheless, the

criminal conduct charged with Counts 1 and 5 involved separate

victims injured at different locations on different dates, and the

district court properly declined to group the counts under §3D1.2.

Judgment is AFFIRMED.

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