United States v. Ho

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-20460
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee-
Cross-Appellant,
VERSUS
ERIC KUNG-SHOU HO,
Defendant-Appellant-
Cross-Appellee.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________
October 31, 2002
Before DAVIS, JONES, and SMITH,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Eric Ho appeals his conviction under the
Clean Air Act (“CAA”), 42 U.S.C. § 7401 et
seq., and its regulations. The government
cross-appeals the refusal to impose two sen-
tencing enhancements. We affirm the convic-
tion but vacate the sentence and remand for re-
sentencing.
I.

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2
Ho is a naturalized citizen who emigrated
to Houston from the Republic of China in the
1970’s. He owns and operates a produce sup-
ply company, Houston Fruitland, and a truck-
ing company, Ho Ho Ho Express, Inc. He
was convicted of failure to comply with asbes-
tos work practice standards, 42 U.S.C.
§ 7413(c)(1), and failure to give notice of in-
tent to remove asbestos, 42 U.S.C. § 7413(c)-
(2)(B).
A.
In October 1997, Ho entered negotiations
to purchase the abandoned Alief General Hos-
pital and Professional Building in Houston.
During negotiations, the owner’s agent told
Ho’s broker, who told Ho, that a 1994 envi-
ronmental site assessment had revealed exten-
sive asbestos in the hospital’s fireproofing; that
asbestos abatement could cost as much as
$400,000; and that the owner was selling the
property “as is.” The owner and Ho ultimately
agreed to a price of $700,000 instead of the
initial asking price of $1.1 million. The con-
tract included a Commercial Property Condi-
tion Statement to the effect that the property
contained asbestos. Ho signed the statement,
thereby acknowledging the presence of asbes-
tos.
Ho soon contacted a project manager at
Laughlin Environmental, a licensed asbestos
abatement company, to obtain a bid for asbes-
tos removal. The manager prepared a bid of
$325,000 to remove and dispose of all asbes-
tos in the two buildings. Ho quickly rejected
the bid as too high, so the manager offered a
second bid of cost plus ten percent; Ho never
responded.
Instead, Ho initiated his own hospital reno-
vation project in December 1997. He did not
give advance notice to the Environmental Pro-
tection Agency (“EPA”) or the Texas Depart-
ment of Health (“TDH”) of his intent to reno-
vate a building that would involve the removal
and disposal of asbestos; this failure violated
40 C.F.R. § 61.145(b). Ho hired Manuel Es-
cobedo, his sometimes handyman, to supervise
the work, though Ho often visited the hospital
site himself. Ho also hired Corson Tate to
begin renovations in the professional building.
Escobedo, in turn, hired at least ten Mexi-
can nationalsSSapparently in the United States
illegallySSto perform the renovation and asbes-
tos removal work. Escobedo paid the workers
by submitting their time sheets to Ho’s ac-
countant, receiving and cashing a check, and
paying the workers in cash.
After removing sheetrock partitions and
ceiling tiles from the first floor of the hospital,
the workers, who had no experience or train-
ing in asbestos removal, began in mid-January
1998 to remove the asbestos-containing fire-
proofing. Neither Ho nor Escobedo told them
that the fireproofing contained asbestos or that
asbestos is a dangerous carcinogen, nor did
they provide the workers with adequate safety
equipment.
Against customary asbestos abatement
practices, the workers used no water as they
removed the fireproofing, but only scraped off
the fireproofing, which produced large
amounts of asbestos-containing dust inside the
hospital. As the workers removed the fire-
proofing, they placed it in plastic bags. Al-
though they generally left the bags open and
inside the hospital, on one occasion a worker
placed several bags in an outside dumpster, but
Escobedo immediately instructed him to re-
trieve the bags and leave them inside the hos-
pital. The hospital remained unsealed through-
out, with several open doors and windows and

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3
a large hole in the second floor exterior wall.
None of these practices complied with asbes-
tos work practice standards. See 40 C.F.R. §
61.145.
On February 2, 1998, Tim Stewart, a build-
ing inspector for the City of Houston, visited
the hospital to investigate a complaint of reno-
vation work without a city permit. Stewart
observed the workers as they removed the
fireproofing with putty knives without water
or adequate safety equipment. Stewart also
noted that the hospital was unsealed. He
therefore issued a stop-work order and placed
a red tag on the main entrance to the hospital
indicating that work could not proceed with-
out a city building permit. The workers left
shortly thereafter, and Tate delivered the stop-
work order to Ho.
Ho then contacted an operations manager
at Alamo Environmental, a licensed asbestos
abatement company in San Antonio, for an es-
timate to remove the remaining asbestos-con-
taining material. The manager met Ho at the
hospital on February 10 and sent him an esti-
mate of $159,876 on February 13. Ho decided
not to hire Alamo Environmental but, instead,
to renew his own renovation project.
To avoid the stop-work order and further
inspections, Ho re-hired the Mexican workers
and instructed them to work at night, asking
one of the workers, Jaime Contreras, to super-
vise. (Escobedo had fallen ill shortly after the
stop-work order was issued.) Ho also visited
the hospital frequently and on a few occasions
personally supervised the workers. The pace
of the project soon dissatisfied Ho, however,
so he began to offer the workers performance
incentives to complete sections of the hospital.
Ho also hired Tate to provide supplies to the
workers and monitor their hours; Ho and Tate
reduced this agreement to a written contract.
The workers completed the asbestos re-
moval on March 10, 1998. Ho told Tate to
wash down the inside of the hospital using a
water line outside the hospital. Unfortunately,
the “water line” was in fact a pressurized gas
line.
After Tate removed the cap on the line, he
started his nearby van. The spark from the ig-
nition and the open gas line caused an explo-
sion. The explosion burned Tate, three work-
ers, and the van and blew a hole in the exterior
wall of the hospital.
As a result of the explosion, TDH inspec-
tors Tim Hendrix and Gary Williams inspected
the site on March 13, 1998. They found the
hospital unsealed, with open windows and
doors and, now, two holes in the exterior
walls. Fireproofing dust covered floors and
shelves, and the building contained roughly
100 open bags of fireproofing and sheetrock
residue. Subsequent laboratory analysis of the
fireproofing indicated two to twenty percent
chrysolite asbestos; any material with more
than one percent is subject to federal and state
regulations. The inspectors noted several
footprints leading from the hospital outdoors,
though they could not determine conclusively
whether the dust in the footprints was as-
bestos-containing fireproofing or harmless
sheetrock residue.
Over t he next few months, Hendrix tried,
with little success, to get Ho to seal the hospi-
tal and complete the asbestos abatement. Ho
initially had one of the Mexican workers place
plywood over the hospital’s doors and win-
dows, though this measure did not adequately
seal the hospital. Ho also obtained multiple
estimates for the remaining abatement project.

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4
He apparently did not want to pay the still-
sizeable cost of abatement, though he finally
relented after much importuning by Hendrix.
The Occupational Safety and Health Ad-
ministration (“OSHA”) ultimately initiated an
administrative enforcement action against Ho
and two of his companies, charging violations
of the Occupational Safety and Health Act, 29
U.S.C. § 651 et seq., and its regulations. An
administrative law judge upheld the citations
and assessed administrative penalties against
Ho and his companies in excess of $1 million.1
B.
In October 2000, the grand jury issued a
nine-count superseding indictment against Ho
and Escobedo. Count 1 charged them with
conspiracy to violate the CAA in violation of
18 U.S.C. § 371. Count 2 charged Ho with a
failure to give notice of intent to renovate a fa-
cility involving the removal of asbestos mate-
rial in violation of 42 U.S.C. § 7413(c)(2)(B).
Count 3 charged Ho with failure to comply
with asbestos work practice standards in vio-
lation of 42 U.S.C. § 7413(c)(1). Count 4
charged Ho with failure to notify the appropri-
ate agency of a release of asbestos in a viola-
tion of 42 U.S.C. § 9603(b). Count 5 charged
Ho with a knowing release of asbestos into the
ambient air, which placed another person in
imminent danger of death or serious bodily in-
jury in violation of 42 U.S.C. § 7413(c)(5)(A).
Count 6 charged Ho with making a false and
material statement to OSHA and the Depart-
ment of Labor in violation of 18 U.S.C.
§ 1001. The remaining three counts charged
Escobedo with various crimes.
C.
The district court dismissed count 5 after a
pre-trial hearing. At the conclusion of the
government’s case at trial, the court dismissed
Count 4 with prejudice and directed a verdict
of not guilty on Count 1. The jury convicted
Ho on counts 2 and 3 and acquitted him on
count 6.
D.
In his presentence report, the probation of-
ficer recommended an offense level of 18.
First, he grouped, as two or more acts
connected by a common criminal objective or
part of a common scheme or plan, the convic-
tions for failure to give notice of intent to re-
move asbestos and failure to comply with as-
bestos work practice standards. U.S.S.G.
§ 3D1.2(b). Second, he began with a base of-
fense level of 8. U.S.S.G. § 2Q1.2(a). Third,
he recommended a six-level enhancement for
repetitive discharge of asbestos into the envi-
ronment. U.S.S.G. § 2Q1.2(b)(1)(A). Fourth,
he recommended a four-level enhancement for
Ho’s role as an organizer or leader of an ex-
tensive criminal scheme. U.S.S.G. § 3B1.1(a).
These enhancements resulted in a recom-
mended total offense level of 18, for a sentenc-
ing range of 27-33 months.
The government objected to the PSR’s fail-
ure to include an upward enhancement based
on the workers’ alleged status as “vulnerable
victims.” U.S.S.G. § 3A1.1(b). Ho objected
to the enhancements and requested a down-
ward departure on several grounds.
At the sentencing hearing, the district court
calculated a total offense level of 10. The
court accepted the base offense level of 8.
The court did not add the six-level enhance-
ment for repetitive discharge of asbestos into
the environment, because it concluded that the
1 The TDH initiated similar proceedings under
state law. Ho settled by paying $44,000 in civil
penalties.

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5
government had not proven discharge by a
preponderance of the evidence. The court also
declined to add the four-level enhancement,
because it concluded that the criminal activity
was not “otherwise extensive” under§ 3B.1.1-
(a), but the court added the two-level enhance-
ment for leadership of a small criminal activity
under § 3B1.1(c). The court rejected all other
requests for enhancements or departures.
II.
Ho contends that the laws under which he
was convicted exceed Congress’s authority
under the Commerce Clause, U.S. CONST. art.
I, § 8, cl. 3. Guided by the recent landmark
cases of United States v. Lopez, 514 U.S. 549
(1995), and United States v. Morrison, 529
U.S. 598 (2000), we disagree.
At the outset, we stress the limited holding
of this opinion. We do not confront a facial
challenge to the Clean Air Act, but only an as-
applied challenge to the work practice stan-
dard provision, 42 U.S.C. § 7412(h), and the
reporting provision, 42 U.S.C. § 7414(a), of
the CAA and their implementing regulations,
40 C.F.R. § 61.145. We thus have neither
occasion nor authority to rule on the constitu-
tionality of other provisions of the CAA or
other implementing regulations, which we
must leave for another day when they are
properly presented.
We begin by reviewing the relevant sections
of the CAA and their implementing regula-
tions. Next, we examine some first principles
of Commerce Clause jurisprudence. We then
analyze the reasoning in Lopez and Morrison.
Finally, we explain why, under this reasoning,
Congress had the authority to enact the sec-
tions of the CAA that Ho challenges.
A.
Section 112 of the CAA, 42 U.S.C. § 7412,
authorizes the Administrator of the EPA to
publish a list of hazardous air pollutants and to
establish emission standards for them. These
standards are known as “national emission
standards for hazardous air pollutants,” or
NESHAP’s.
Section 112(b), 42 U.S.C. § 7412(b),
establishes an initial statutory list of hazardous
air pollutants, of which asbestos is one, and di-
rects the EPA to update the list periodically.
Section 112(c) , 42 U.S.C. § 7412(c), directs
the EPA to identify each “source category”
that emits a particular hazardous air pollutant.
Section 112(d), 42 U.S.C. § 7412(d), directs
the agency to promulgate NESHAP’s to
regulate the emission of hazardous air pollut-
ants from these source categories. These
provisions are the primary means to regulate
emissions of hazardous air pollutants under the
CAA.
Section 112(h)(1), 42 U.S.C. § 7412(h)(1),
however, authorizes the EPA to adopt work
practice standards instead of emission stan-
dards “if it is not feasible in the judgment of
the Administrator to prescribe or enforce an
emission standard for control of a hazardous
air pollutant.”2 Because asbestos often is not
“emitted through a conveyance designed and
constructed to emit or capture [it],” 42 U.S.C.
§ 7412(h)(1)(A), but rather through building
2 “For purposes of this section, if it is not feas-
ible in the judgment of the Administrator to pre-
scribe or enforce an emission standard for control
of a hazardous air pollutant or pollutants, the Ad-
ministrator may, in lieu thereof, promulgate a . . .
work practice . . . standard . . . which in the
Administrator’s judgment is consistent with the
provisions of subsection (d) or (f) of this section.”
42 U.S.C. § 7412(h)(1).

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demolition and renovation sites, the EPA
adopted a work practice standard for handling
asbestos in these sites, 40 C.F.R. §§ 61.145,
61.150.3 This work practice standard does not
apply generally to any building containing any
asbestos, but only to buildings containing cer-
tain specific kinds and large amounts of asbes-
tos. 40 C.F.R. §§ 61.145(a), 61.150. The
parties do not dispute that the hospital con-
tained the regulated kind and amount of asbes-
tos or, therefore, that the work practice stan-
dard covered the hospital.4
The asbestos work practice standard regu-
lates, in minute detail, the handling of asbestos
in building renovation sites. 40 C.F.R.
§ 61.145(c). For example, material containing
asbestos must be wetted during removal, kept
sufficiently wet after removal to prevent the
release of asbestos fibers, and stored in leak-
tight containers until properly disposed. A
foreman or management-level officer, trained
in complying with these work practice
standards, must be present at any site before
workers may handle material containing
asbestos. We could give more details of the
numerous requirements, but it is enough to say
that Ho admits he did not comply with the
asbestos work practice standard.
Section 114(a), 42 U.S.C. § 7414(a), also
authorizes the EPA to adopt reporting
requirements to ensure compliance with a
work practice standard. Pursuant to § 114(a),
the asbestos work practice standard therefore
imposes an elaborate reporting requirement on
owners or operators of a building renovation
site. 40 C.F.R. § 61.145(b). The heart of this
requirement is that the owner or operator must
give the EPA timely notice (usually ten days)
of intent to begin asbestos removal. Again, we
could continue with the details of this
requirement, but Ho admits that he did not
give notice.
Section 113, 42 U.S.C. § 7413, contains
administrative, civil, and criminal enforcement
mechanisms for the asbestos work practice
standard and the notice requirement. Ho was
convicted under two of these criminal en-
forcement provisions. Section 113(c)(1), 42
U.S.C. § 7413(c)(1), imposes criminal
penalties on “[a]ny person who knowingly
violates any . . . requirement or prohibition of
. . . section 7412 of this title, . . . including a
requirement of any rule . . . promulgated or
approved under such section[.]” Section 113-
(c)(2)(B), 42 U.S.C. § 7413(c)(2)(B), imposes
criminal penalties on [a]ny person who
knowingly fails to notify or report as required
under this chapter.”
We now summarize this complicated statu-
tory and regulatory framework before address-
ing the Commerce Clause. The affirmative le-
gal duties Ho violatedSS(1) failure to follow
proper work practice standards while
removing asbestos and (2) failure to give
notice of intent to remove asbestosSSappear in
the asbestos work practice standard, 40 C.F.R.
§ 61.145. The EPA adopted the work practice
standard under §§ 112(h) and 114(a) of the
CAA, 42 U.S.C. §§ 7412(h), 7414(a). The
government prosecuted Ho for these violations
under § 113(c)(1), (c)(2)(B) of the CAA, 42
U.S.C. § 7413(c)(1), (c)(2)(B). Ho now
challenges these sections as applied to him.
3 The asbestos NESHAP also contains § 112(d)
emission standards for source categories that emit
asbestos. See, e.g., 40 C.F.R. § 61.142.
4 Ho, of course, disputes that the work practice
standard can cover the hospital constitutionally,
but that is a different question we address infra
part II.D.

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7
B.
As did the Court in Lopez, so too do “[w]e
start with first principles.” Lopez, 514 U.S. at
552. The Constitution creates a federal
government of limited and enumerated
powers, id., and in particular a Congress of
limited and enumerated powers. The Article I
Vesting Clause confirms this proposition,
vesting in Congress “[a]ll legislative powers
herein granted.” U.S. CONST. art. I, § 1. This
clause necessarily implies that some legislative
powers are not “herein granted,” foremost
among them “the police power, which the
Founders denied the National Government and
reposed in the states.” Morrison, 529 U.S. at
618 and n.8.
“This constitutionally mandated division of
authority ‘was adopted by the Framers to en-
sure protection of our fundamental liberties.
Just as the separation and independence of the
coordinate branches of the Federal
Government serve to prevent the accumulation
of excessive power in any one branch, a
healthy balance of power between the States
and the Federal Government will reduce the
risk of tyranny and abuse from either front.’”
Lopez, 514 U.S. at 552 (quoting Gregory v.
Ashcroft, 501 U.S. 452, 458 (1991) (citations
omitted)).
Among the legislative powers the
Constitution did grant to Congress is the
power “to regulate Commerce with foreign
Nations, and among the several States, and
with the Indian Tribes.” Art. I, § 8, cl. 3.
Though seldom used in the nineteenth century,
the Commerce Clause5 became the chief
engine for federal regulatory and criminal
statutes in the latter two-thirds of the
twentieth century. See Lopez, 514 U.S. at
552-556 (describing the doctrinal history of
the Commerce Clause). The Court explained
in Lopez that NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1 (1937) (upholding the
National Labor Relations Act), United States
v. Darby, 312 U.S. 100 (1941) (upholding the
Fair Labor Standards Act), and Wickard v.
Filburn, 317 U.S. 111 (1942) (upholding the
Agricultural Adjustment Act of 1938),
“ushered in an era of Commerce Clause
jurisprudence that greatly expanded the
previously defined authority of Congress under
that Clause.” Lopez, 514 U.S. at 556.
Yet, “even these modern-era precedents
which have expanded congressional power un-
der the Commerce Clause confirm that this
power is subject to outer limits.” Id. at 556-
57. Indeed, even in Jones & Laughlin Steel,
301 U.S. at 37, the Court emphasized that the
Commerce Clause “may not be extended so as
to embrace effects upon interstate commerce
so indirect and remote that to embrace them,
in view of our complex society, would
effectually obliterate the distinction between
what is national and what is local and create a
completely centralized government.”
This alarming and dangerous prospect, and
the concomitant need to identify judicially en-
forceable limits on the Commerce Clause,
seem to have been a motivating force behind
5 It would be more accurate to speak of the
“Interstate Commerce Clause,” because the phrase
“Commerce Clause” wrongly ignores the distinc-
(continued...)
(...continued)
tion between interstate and intrastate commerce.
See Lopez, 514 U.S. at 587 n.2 (Thomas, J.,
concurring). We defer to convention, however.

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8
the Supreme Court’s recent jurisprudence.6
Without any judicially enforceable limits and
with inevitable political pressures, the
Commerce Clause all too easily would become
the general police power denied to Congress
by the Constitution.
Morrison and Lopez therefore reaffirm our
longstanding duty to enforce the limits of the
Commerce Clause. Naturally, “[d]ue respect
for the decisions of a coordinate branch of
Government demands that we invalidate a con-
gressional enactment only upon a plain show-
ing that Congress has exceeded its
constitutional bounds.” Morrison, 529 U.S. at
607. At the same time, however, the
constitutionality of any statute, including a
statute enacted under the Commerce Clause,
“is ultimately a judicial rather than a legislative
question, and can be settled finally only by [the
Supreme] Court,” and initially by the lower
federal courts. Id. at 614.7
C.
The Supreme Court’s Commerce Clause
jurisprudence sometimes has yielded vague
and uncertain legal standards. As the Court
explained in Lopez, “[t]he Constitution
mandates this uncertainty by withholding from
Congress a plenary police power that would
authorize enactment of every type of
legislation.” Lopez, 514 U.S. at 566. Legal
standards for the Commerce Clause “are not
precise formulations, and in the nature of
things they cannot be.” Id. at 567. In Lopez
and Morrison, however, the Court helpfully
clarified the legal standards to be applied in a
constitutional challenge to a statute under the
Commerce Clause.
1. In Lopez, the Court restated the “three
broad categories of activity that
Congress may regulate under its
commerce power.” Id. at 558. “First,
Congress may regulate the use of the
channels of interstate commerce.” Id.
(citing Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 256-67
(1964); United States v. Darby, 312
U.S. 100, 114-15 (1941)). This
category includes the regulation of
highways, railroads, air routes,
n a v i g a b l e r i v e r s , a n d
telecommunications networks. See
United States v. Robinson, 119 F.3d
1205, 1210 (5th Cir. 1997). The
category also “reaches the ‘misuse’ of
the channels of interstate commerce.”
Bird, 124 F.3d at 673. For example,
within this category Congress has
regulated the interstate transport or
shipment of stolen goods, 18 U.S.C. §
2314; kidnaped persons, 18 U.S.C. §
1201; prostitutes, 18 U.S.C. § 2421
and illegal lottery tickets, The Lottery
Case, 188 U.S. 321 (1903).
“Second, Congress is empowered to
regulate and protect the instrumentalities of
interstate commerce, even though the threat
may come only from intrastate activities.”8
6 See Morrison, 529 U.S. at 615-18; Lopez,
514 U.S. at 565-68; see also United States v. Bird,
124 F.3d 667, 676-78 (5th Cir. 1997) (explaining
the need for a “limiting principle” in Commerce
Clause jurisprudence).
7 See also Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 177 (1803) (“It is emphatically the
province and duty of the judicial department to say
what the law is.”).
8 Lopez, 514 U.S. at 558 (citing Perez v. United
States, 402 U.S. 146, 148-50 (1971); The Shreve-
port Rate Cases, 234 U.S. 342 (1914); Southern
(continued...)

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9
When Congress regulates within this category,
it must “ensure that, in fact, a particular
‘threat’SSwhether posed by an interstate or in-
trastate activitySSactually threatens persons or
things with a plain and clear nexus to interstate
commerce.” Bird, 124 F.3d at 674. Char-
acteristic examples of regulation in this
category include destruction of an aircraft, 18
U.S.C. § 32, and theft from interstate
shipments, 18 U.S.C. § 659. See Lopez, 514
U.S. at 558 (citing Perez, 402 U.S. at 150).
“Finally, Congress’ commerce authority in-
cludes the power to regulate those activities
having a substantial relation to interstate com-
merce, i.e., those activities that substantially
affect interstate commerce.” Id. at 558-59
(citing Maryland v. Wirtz, 392 U.S. 183, 196
n.27 (1968); Jones & Laughlin Steel, 301 U.S.
at 36-38 (1937)). The Court acknowledged in
Lopez that its “case law has not been clear
whether an activity must ‘affect’ or
‘substantially affect” interstate commerce in
order to be within Congress’ power to
regulate it under the Commerce Clause.” Id.
at 559. The Court firmly concluded, though,
that “the proper test requires an analysis of
whether the regulated activity ‘substantially
affects’ interstate commerce.” Id.
Thus, this third category is often known as
the “substantial effect” test. Although it is the
most expansive categorySSor perhaps because
it is the most expansiveSSit has generated the
most controversy and uncertainty.9
One fairly certain principle is that the sub-
stantial effect test allows Congress to regulate
purely intrastate activities. The Supreme
Court has “upheld a wide variety of
congressional Acts regulating intrastate
economic activity where [it has] concluded
that the activity substantially affected interstate
commerce.” Id.. The Court in Lopez did not
purport to disturb the settled rule that
“[w]here economic activity substantially
affects interstate commerce, legislation
regulating that activity will be sustained.” Id.
at 560.
A regulation of intrastate commercial activ-
ity can satisfy the substantial effect test in two
ways. First, it can reach intrastate commercial
activity that by itself substantially affects inter-
state commerce. Jones & Laughlin Steel is a
case in point. A steel company challenged an
order of the NLRB that it had engaged in un-
fair labor practices at a steel mill. Jones &
Laughlin, 301 U.S. at 22. The company con-
tended that the NLRB’s order violated the
Commerce Clause because it amounted to
congressional regulation of a wholly intrastate
economic activity. Id. at 40-41. The Court
rejected this argument, because “the stoppage
of those [steel manufacturing] operations by
industrial strife would have a most serious
effect upon interstate commerce . . . . It is
obvious that it would be immediate and might
be catastrophic.” Id. at 41. Thus, the Court
upheld the order as a valid regulation of
intrastate commercial activity, i.e., labor
relations at a steel mill, which alone
substantially affects interstate commerce.
Second, the regulation can reach intrastate
8(...continued)
Ry. v. United States, 222 U.S. 20 (1911)).
9 Compare id. at 584-602 (Thomas, J., con-
curring) (arguing that the substantial effect test
lacks a constitutional basis) with id. at 615-31
(continued...)
9(...continued)
(Breyer, J., dissenting) (arguing for a more gener-
ous application of the substantial effect test).

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10
commercial activity that by itself is too trivial
to have a substantial effect on interstate
commerce but which, when aggregated with
similar and related activity, can substantially
affect interstate commerce. This rule has
come to be known as the “aggregation”
principle, which reached its zenith in Wickard,
“perhaps the most far reaching example of
Commerce Clause authority over intrastate
activity.” Lopez, 514 U.S. at 560. The farmer
in Wickard grew wheat on his small farm.
Wickard, 317 U.S. at 114. Under the
Agricultural Adjustment Act of 1938, he was
entitled to a quota of about eleven acres of
wheat, but he grew about twenty-three acres,
which he used for seeding, feeding, selling, and
home consumption. Id. at 114-15. The
Secretary of Agriculture assessed a penalty
against him for exceeding his quota. Id. at
115. The Court upheld the penalty because,
though the farmer’s “own contribution to the
demand for wheat may be trivial by itself . . .
his contribution, taken together with that of
many others similarly situated, is far from
trivial.” Id. at 127-28. Wickard thus stands at
the head of “cases upholding regulations of
activities that arise out of or are connected
with a commercial transaction, which viewed
in the aggregate, substantially affects interstate
commerce.” Lopez, 514 U.S. at 561.
Whether and how Congress may apply the
aggregation principl e are controversial
questions. The pitfalls are apparent. For
example, any imaginable activity of mankind
can affect the alertness, energy, and mood of
human beings, which in turn can affect their
productivity in the workplace, which when
aggregated together could reduce national
economic productivity. Such reasoning would
eliminate any judicially enforceable limit on the
Commerce Clause, thereby turning that clause
into what it most certainly is not, a general
police power. Thus, in Lopez, 514 U.S. at
564, the Court expressly rejected such
reasoning.
In fact, as we have observed, the need for
some judicially enforceable limit on the
aggregation principle seemed to motivate the
analysis in Lopez and Morrison. The Court
therefore has identified four “significant
considerations” for Congress’s power to
invoke the aggregation principle to regulate
wholly intrastate activities. Morrison, 529
U.S. at 609.
The Court first identified these
considerations in Lopez, which held that the
Gun-Free School Zones Act of 1990, 18
U.S.C. § 922(q)(1)(A), which made it a federal
crime knowingly to possess a firearm in a
school zone, exceeded Congress’s authority
under the Commerce Clause. The Court re-
emphasized these considerations in Morrison,
which held that the civil remedy provision of
the Violence Against Women Act, 42 U.S.C.
§ 13981, which created a federal civil remedy
for victims of sex-based violence, also
exceeded Congress’s authority under the
Commerce Clause. We examine these four
considerations with a view to the scope of the
aggregation principle.
The first consideration is the economic or
commercial nature of the regulated intrastate
activity. In Lopez, the Court seemed to re-
strict the aggregation principle to economic
activity, which did not include gun possession
in a school zone. Lopez, 514 U.S. at 559-61.
Morrison clarified Lopez somewhat on this
point, explaining that “[w]hile we need not
adopt a categorical rule against aggregating
the effects of any noneconomic activity in or-
der to decide [Morrison], thus far in our
Nation’s history our cases have upheld

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11
Commerce Clause regulation of intrastate
activity only where the activity is economic in
nature,” which sex-based violence most
certainly is not. Morrison, 529 U.S. at 613
(emphasis added). Thus, it remains an open
question, as yet unsettled by the Supreme
Court, whether the aggregation principle
extends to non-economic activity.10
The second consideration is a jurisdictional
element in the challenged statute that “might
limit its reach to a discrete set of [regulated in-
trastate activities] that additionally have an ex-
plicit connection with or effect on interstate
commerce.” Lopez, 514 U.S. at 562. A
jurisdictional element may ensure that a
statute, as applied, substantially affects
interstate commerce.11
To be sure, though, Morrison clarified that
a jurisdictional element is not sufficient to es-
tablish the constitutionality of a challenged
statute: “Such an element may establish that
the enactment is in pursuance of Congress’
regulation of interstate commerce.” Morrison,
529 U.S. at 612 (emphasis added). We
therefore have held that a “jurisdictional
element is not alone sufficient to render [a
challenged statute] constitutional. That
argument . . . has no principled limit.” United
States v. Kallestad, 236 F.3d 225, 229 (5th
Cir. 2000).
Thus, Congress may not add the words “in-
terstate commerce” to every statute and expect
the courts meekly to comply. In any event,
neither § 922(q)(1)(A) nor § 13981 contains a
jurisdictional element to restrict its scope or
justify use of the aggregation principle.
The third consideration is congressional
findings regarding the regulated intrastate ac-
tivity’s substantial effects on interstate
commerce. This consideration is the least
important when determining whether Congress
may invoke the aggregation principle. In
Lopez, 514 U.S. at 557 n.2, the Court noted
that “[s]imply because Congress may conclude
that a particular activity substantially affects
interstate commerce does not necessarily make
it so.” (Citation omitted.) By the same token,
the Court noted that “Congress normally is not
required to make fo rmal findings as to the
substantial burdens that an activity has on
interstate commerce.” Id. at 562.
In other words, congressional findings are
neither necessary nor sufficient for Congress
to invoke the aggregation principle, but merely
are helpful insofar as they aid the courts in
identifying a substantial effect on commerce
“even though no such substantial effect [is]
visible to the naked eye.” Id. at 563.
Although § 922(q)(1)(A) contained no
findings, the Court’s deeds in Morrison
backed up its words in Lopez, because the
Court rejected reams of findings collected after
years of legislative inquiry as insufficient to
support § 13981. Morrison, 529 U.S. at 614-
15.
The fourth and final consideration is the de-
gree of attenuation between the regulated in-
10 We recognize that Bird seems to contradict
this conclusion. “After WickardSSand its reaffirm-
ance in LopezSSthere can be no question that
Congress is able to regulate noncommercial, in-
trastate activity that substantially affects interstate
commerce.” Bird, 124 F.3d at 676. Yet, we de-
cided Bird before the Supreme Court decided
Morrison.
11 A jurisdictional element also may establish
that a statute comes within the first or second cat-
egory of Commerce Clause regulation identified in
Lopez. Morrison, 529 at 613 n.5.

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12
trastate activity and the substantial effect on
interstate commerce. This consideration espe-
cially is designed to impose some judicially en-
forceable limit on the aggregation principle
and to prevent the Commerce Clause from be-
coming a general police power.
In Lopez, the government argued that dis-
crete instances of gun possession in a school
zone, when aggregated, increased the costs of
crime and reduced national productivity. Lo-
pez, 514 U.S. at 563-64. The Court rejected
the cost-of-crime rationale for aggregation,
because it would allow Congress to regulate
“all activities that might lead to violent crime,
regardless of how tenuously they relate to in-
terstate commerce.” Id. at 564. Likewise, the
Court rejected the national productivity
rationale, because it would allow Congress to
regulate any activity related to economic pro-
ductivity including, for example, “marriage, di-
vorce, and child custody.” Id. Such rationales
left the Court “hard pressed to posit any
activity by an individual that Congress is
without power to regulate.” Id.
In Morrison, the Court rejected similar ar-
guments about the alleged substantial effects
of sex-based violence, when aggregated, on
employment, production, transit, and con-
sumption. Morrison, 529 U.S. at 614-16. If
Congress could regulate sex-based violence
because of these effects on interstate
commerce, it could regulate all violence,
because sex-based violence, as a subset of all
violence, certainly has a smaller effect than
does all violence. Id. at 615. This kind of
attenuated reasoning is “unworkable if we are
to maintain the Constitution’s enumeration of
powers.” Id. at 615.
Lopez and Morrison, therefore, foreclose
congressional use of the aggregation principle
where the alleged relationship between the
regulated intrastate activity and the substantial
effect on interstate commerce is so attenuated
that it would justify all regulation, i.e., would
turn the Commerce Clause into a general po-
lice power. To do so would erase “the
distinction between what is truly national and
what is truly local.” Lopez, 514 U.S. at 567-
68 (citing Jones & Laughlin Steel, 301 U.S. at
30).
D.
With these standards in mind, we uphold, as
a valid exercise of Congress’s commerce
power, the provisions of the CAA under which
Ho was convicted. We review the con-
stitutionality of a federal statute de novo.
Kallestad, 236 F.3d at 227.
Ho feverishly insists that the government
never proved that asbestos was released from
the hospital into the ambient air, which
necessarily means that no asbestos from the
hospital polluted interstate air. Yet, the
government did not need to prove that Ho
polluted the ambient air to convict him.
Indeed, we may assume arguendo, for pur-
poses of the Commerce Clause analysis, that
no asbestos escaped the hospital, because Ho
was not convicted of releasing asbestos into
the ambient air; the district court dismissed this
count after a pre-trial hearing. Instead, Ho
was convicted of failure to comply with the
asbestos work practice standard and failure to
give notice of intent to remove asbestos. 42
U.S.C. §§ 7412(h), 7414(a); 40 C.F.R.
§ 61.145. The conviction rest on purely
intrastate activities, no doubt, but Jones &
Laughlin Steel and Wickard long ago
established, and Lopez and Morrison recently
reaffirmed, that Congress may regulate wholly
intrastate activities that substantially affect in-

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13
terstate commerce.
The government concedes that the
application of the asbestos work practice
standard to Ho can be justified only under the
substantial effect test. The standard does not
regulate the channels of interstate commerce
or prohibit the interstate shipment of a good or
commodity through these channels. Nor does
it seek to protect the instrumentalities of or a
thing or person in interstate commerce. Thus,
if the conviction is to be sustained, “it must be
under the third category as a regulation of an
activity that substantially affects interstate
commerce.” Lopez, 514 U.S. at 559.
Furthermore, the government concedes that
the asbestos work practice standard can satisfy
the substantial effect test only through the ag-
gregation principle. The government does not
seriously contend that Ho’s isolated violation
of the work practice standard at a single
renovation site could, by itself, have a
substantial effect on interstate commerce.
Instead, the government argues that similar
violations, when aggregated, could
substantially affect the interstate market for
asbestos removal services and the interstate
market for commercial real estate.12
Thus, this case presents the limited question
whether the aggregation principle extends to
violations of the asbestos work practice stan-
dard. We apply the Lopez-Morrison con-
siderations to answer in the affirmative.
First, the regulated intrastate activity, as-
bestos removal, is very much a commercial ac-
tivity in today’s economy. It is a booming
industry, given the hazardous nature of
asbestos and its seeming ubiquity in older
buildings. There is nothing inherently criminal
or disfavored about asbestos removal; in fact,
it might be considered a public service, and
many reputable and certified businesses exist
solely to remove asbestos from contaminated
buildings.
Both the state and federal governments li-
cense businesses and individuals in the field.
Most, if not all, asbestos removal projects have
a commercial purpose, because handling toxic
carcinogens is not something many people
enjoy for its own sake. Unless the owner of an
asbestos-containing building needs to renovate
the building or demolish it for use of the land
on which it sits, he is very likely to let sleeping
dogs lie and not incur the costs or dangers of
asbestos removal.
Moreover, Ho’s activities were driven by
commercial considerations. He voluntarily so-
licited bids from two such businesses, which
returned sizable six-figure bids for the hospital
project. Although Ho declined these bids as
too costly, he hired the Mexican workers to
remove the asbestos, which itself was a
commercial transaction. Additionally, the en-
tire project occurred in a building that Ho re-
cently had purchased for $700,000. Had he
not wanted to use the hospital for commercial
purposes, he would not have paid such a hefty
sum, solicited the bids for asbestos removal, or
hired the workers to remove the asbestos on
the sly. We can say with confidence, then, that
asbestos removal in this case, unlike gun
12 Ho protests that the government did not ad-
duce this argument at trial. It is true that the gov-
ernment defended the asbestos work practice stan-
dard in the district court based primarily on the ef-
fects of interstate pollution. Yet, the record ade-
quately supports the government’s theory urged on
appeal, and we may affirm for any reason sup-
ported by the record. LLEH, Inc. v. Wichita Coun-
ty, 289 F.3d 358, 364 (5th Cir. 2002).

-- 13 of 22 --

14
possession in a school zone or sex-based vio-
lence, is a commercial activity.
Second, the asbestos work practice
standard does not contain any kind of
jurisdictional element. Neither § 112(h) nor §
114(a) of the CAA, 42 U.S.C. §§ 7412(h),
7414(a), restricts the EPA’s authority to
promulgate work practice standards with a
jurisdictional element. Unsurprisingly, the
EPA did not limit the scope of the asbestos
work pract ice standard by means of any kind
of jurisdictional element. 40 C.F.R. §
61.145.13
Third, Congress included no congressional
findings regarding the substantial effects that
asbestos removal may have on interstate com-
merce. Section 101, 42 U.S.C. § 7401, speaks
generally to the harmful effects of air pollution
and states the purposes of the CAA. A few
passages from § 101 refer cursorily to what
might be considered aspects of interstate
commerce.14 These brief passages, however,
do not even begin to satisfy the stringent stan-
dards of Morrison for the use of congressional
findings.
Likewise, the parties have not pointed us to
any relevant or helpful passages from the leg-
islative histories of the CAA, and we have not
discovered any such passages on our own re-
view. As so often happens, Congress seems to
have assumed its power to regulate however it
desires. Yet, congressional findings, as we
have explained, are neither necessary nor suf-
ficient to sustain a regulation. The same holds
for a lack of congressional findings, especially
where the substantial effects on interstate com-
merce are “visible to the naked eye.” Lopez,
514 U.S. at 563.
Most importantly, the relationship between
the asbestos removal in violation of the work
practice standard and interstate commerce is
not attenuated, but direct and apparent.
Congress had a rational basis to find not only
that a national market exists for asbestos
removal services, but also that Ho’s activities
would injure this market. See Groome Res.
Ltd., LLC v. Parish of Jefferson, 234 F.3d
192, 203 (5th Cir. 2000).
By violating the asbestos work practice
standard, which imposes costly duties on per-
sons and businesses engaged in asbestos re-
moval, Ho gained a commercial advantage on
licensed abatement companies. Whereas these
companies must spend hundreds of thousands
of dollars on projects like Ho’s, Ho was able
13 As we have observed, however, a juris-
dictional element is not decisive in Commerce
Clause analysis. Though a jurisdictional element
may limit the scope of a statute to intrastate ac-
tivities substantially affecting interstate commerce,
the absence of such an element will not undermine
a statute where the regulated activity in fact
substantially affects interstate commerce, just as it
will not save a statute where the regulated activity
does not substantially affect interstate commerce.
14 See, e.g., 42 U.S.C. § 7401(a)(2) (stating
that“the growth in amount and complexity of air
pollution brought about by . . . industrial de-
velopment . . . has resulted in mounting dangers to
the public health and welfare, including injury to
agricultural crops and livestock, damage to and the
deterioration of property, and hazards to air and
(continued...)
(...continued)
ground transportation); § 7401(b)(1) (stating that
a purpose of the CAA is “to protect and enhance
the quality of the Nation’s air resources so as to
promote the public health and welfare and the
productive capacity of its population”).

-- 14 of 22 --

15
scrape bySSliterally and figurativelySSat a cut
rate of barely more than $20,000 plus supplies.
His activities also deprived licensed abatement
companies of a promising business
opportunity. These substantial effects on the
asbestos removal market are direct, not
attenuated, and they justify use of the
aggregation principle in the narrow situation
presented by this case.
Moreover, once aggregated, Ho’s activities
posed an threat to the interstate commercial
real estate market. His illicit asbestos removal
project likely would reduce the number of
companies providing asbestos removal servic-
es. Fewer companies means that conscientious
property owners would have more trouble
locating licensed abatement companies and
likely would have to pay higher prices for the
services o f remaining companies.
Furthermore, Ho would gain a commercial
advantage over conscientious property owners
who must pay these higher prices for asbestos
removal.
By holding that Congress may aggregate vi-
olations of the asbestos work practice standard
to satisfy the substantial effects test, we do not
cede a general police power to Congress or
abdicate our responsibility to enforce limits on
the Commerce Clause. Far from it, for our
holding today has two important limiting
principles.
First, it applies only to a commercial
activity, not to any activity whatsoever that
might have detrimental environmental effects.
The Supreme Court has long upheld the
aggregation a class of commercial activity.
Morrison, 529 U.S. at 613. Second, the
presence of a national market in the regulated
activity also serves as a limiting principle.15
We therefore conclude the Commerce
Clause analysis by re-emphasizing the limited
nature of our holding. We uphold only the
sections of the CAA authorizing the asbestos
work practice standard, 42 U.S.C. §§ 7412(h),
7414(a), and the work practice standard itself,
40 C.F.R. § 61.141. We express no opinion
on the constitutionality of other sections of the
CAA or their implementing regulations, or, for
that matter, of other environmental laws.16
III.
Ho challenges the refusal to include an in-
terstate commerce jurisdictional element in the
jury instructions for each count. He argues
that the jurisdictional element is necessary
wherever a prosecution pushes the outer
bounds of the Commerce Clause. Reviewing
the court’s jury instructions for abuse of dis-
cretion, Cooper Indus., Inc. v. Tarmac
Roofing Sys., Inc., 276 F.3d 704, 714 (5th Cir.
15 See Perez, 402 U.S. at 154-57 (national
market for commercial credit); Wickard, 317 U.S.
at 127-28 (national market for wheat); Bird, 124
F.3d at 678 (national market for abortion services).
16 “The Commerce Clause [is] broad enough to
permit congressional regulation of activities caus-
ing air or water pollution, or other environmental
hazards that may have effects in more than one
State.” Hodel v. Va. Surface Mining & Re-
clamation Ass’n, Inc., 452 U.S. 264, 282 (1981).
Lopez and Morrison do not challenge this prin-
ciple, though they also do not exempt environmen-
tal regulations from Commerce Clause scrutiny.
Though we note that the principle seems to require
interstate effects before Congress may regulate for
environmental problems, we have no occasion to
analyze the principle in this case, because the
asbestos work practice standard is a valid
regulation of a commercial activity.

-- 15 of 22 --

16
2002), we disagree.
Ho cites United States v. Threadgill, 172
F.3d 357 (5th Cir. 1999), for the proposition
that Lopez requires an interstate commerce
jurisdictional element because his prosecution
pushed the outer bounds of the Commerce
Clause. Unfortunately for Ho, we expressly
rejected this proposition in Threadgill. Id.
(“[T]he defendants essentially argue that Lopez
has created a new jurisdictional element in all
federal prosecutions of individual conduct. . .
. We are not persuaded.”). Moreover, the
text of the CAA does not support Ho’s
position, because, unlike many other federal
criminal statutes, it does not contain a
jurisdictional element that the government
must plead and prove. See, e.g., 18 U.S.C. §
2421. This omission is a legislative choice, not
a constitutional defect.
At best, Ho falls back on a more general
passage from Threadgill, 172 F.3d at 372:
“Whether a defendant’s conduct has a
‘substantial effect on interstate commerce’ is a
question that only becomes relevant when the
statute at issue, or the facts of the case, cast
doubt on Congress’ ability to use the
Commerce Clause to regulate the charged
conduct.” We held that this rule did not apply
in Threadgill because the crimes of gambling
and unlawful structuring of banking
transactions were “purely commercial
activities.” Id. Unlike the situation in Lopez
and like that in Threadgill, however, neither
the asbestos work practice standard nor the
facts of this case cast doubt on Congress’s
ability to regulate Ho’s conduct. The district
court therefore did not err in refusing Ho’s
requested instruction.
IV.
Ho challenges the jury instruction on the
count for failure to give notice of intent to re-
move asbestos. In summary, he argues that
§ 113(c)(2)(B), 42 U.S.C. § 7413(c)(2)(B),
which imposes criminal penalties on “[a]ny
person who knowingly fails to notify or report
as required by under [the CAA],” requires not
only knowledge of the presence of asbestos,
but also knowledge of the CAA’s notice re-
quirement. The government, on the other
hand, contends that it only needed to prove
knowledge of the presence of asbestos.
The district court agreed with the
government and instructed the jury that “[i]t is
not necessary that the Government prove the
Defendant actually knew of the notice
requirement.” Although we usually review
failure to give a requested jury instruction for
abuse of discretion, Cooper Indus., 276 F.3d
at 714, we review this question of statutory
interpretation de novo, United States v. Adam,
296 F.3d 327, 330 (5th Cir. 2002). The
district court’s instruction was correct, be-
cause § 113(c)(2)(B) does not require knowl-
edge of the notice requirement.
We need refer only to the venerable maxim
that “Ignorance of the law is no defense.” It is
as much a part of “our national culture” as are
the Miranda warnings. Dickerson v. United
States, 530 U.S. 428, 443 (2000). Our
criminal laws typically express this maxim with
the “knowing” degree of scienter. The
Supreme Court recently has explained in more
lawyer-like fashion that “the term ‘knowingly’
does not necessarily have any reference to a
culpable state of mind or to knowledge of the
law . . . . ‘[T]he knowledge requisite to
knowing violation of a statute is factual
knowledge as distinguished from knowledge of

-- 16 of 22 --

17
the law.’”17 This maxim is so strongly
embedded in our legal system that “unless the
text of a statute dictates a different result, the
term ‘knowingly’ merely requires proof of
knowledge of the facts that constitute the
offense.” Bryan, 524 U.S. at 193 (footnote
omitted) (emphasis added).
This general rule applies with especial force
to laws regulating hazardous substances. In
United States v. Int’l Minerals & Chem.
Corp., 402 U.S. 558 (1971), the Court upheld
a conviction of a knowing failure to show
shipping papers of a corrosive liquid. The
government offered no proof that the
defendant knew of the shipping paper
regulation. The Court rejected the challenge,
however, because the defendant had
knowledge of the factual elements of the
offense, which was all the statutory scienter of
a knowing violation required. Id. at 562-64.
The Court further stated that where
“dangerous or deleterious devices or products
or obnoxious waste materials are involved, the
probability of regulation is so great that
anyone who is aware that he is in possession of
them or dealing with them must be presumed
to be aware of the regulation.” Id. at 565.
Although neither this court nor other circuit
courts have interpreted the scienter required
by § 113(c)(2)(B), we see no reason to depart
from the longstanding principle that
“knowingly” means knowledge of underlying
facts, not law. To the contrary, we observe
several sound reasons to apply the long-
standing principle.
First, other circuits have trenchantly
interpreted the term “knowingly” in §
113(c)(1) to require knowledge of facts, not
law.18 The phrasing of the two subsections is
identical, and t he same terms in a statute
should be interpreted in the same way.
Sullivan v. Stroop, 496 U.S. 476, 484 (1990).
Second, the text of § 113(c)(2)(B) does not
“dictate” a contrary result. Bryan, 524 U.S. at
193. Third, this and the other circuit courts
have held that the term “knowingly” in other
environmental statutes means only a
knowledge of facts, not law.19
Fourth, though the notice requirement is
somewhat technical or administrative, the
CAA as a whole is “a public welfare statute,
involving a heavily regulated area with great
ramifications for the public health and safety.”
Baytank, 934 F.2d at 613 (citation omitted).
Consequently, failure to give notice of
asbestos removal is “a type of conduct that a
reasonable person should know is subject to
stringent public regulation.” Id. (citing and
distinguishing Liparota v. United States, 471
U.S. 419, 433 (1985)). In these circumstanc-
17 Bryan v. United States, 524 U.S. 184, 192
(1998) (quoting Boyce Motor Lines Inc. v. United
States, 342 U.S. 337, 345 (1952) (Jackson, J., dis-
senting)); see also United States v. Baytank
(Houston), Inc., 934 F.2d 599, 613 (5th Cir. 1991)
(stating that “‘knowingly’ means no more than that
the defendant knows factually what he is doing”).
18 See United States v. Weintraub, 273 F.3d
139 (2d Cir. 2001); United States v. Tomlinson,
No. 99-30020, 1999 U.S. APP. LEXIS 16758 (9th
Cir. July 16, 1999) (unpublished); United States v.
Buckley, 934 F.2d 84 (6th Cir. 1991).
19 See, e.g., United States v. Kelley Tech. Coat-
ings, Inc., 157 F.3d 432, 436 (6th Cir. 1998)
(RCRA); United States v. Ahmad, 101 F.3d 386,
390 (5th Cir. 1996) (Clean Water Act); United
States v. Laughlin, 10 F.3d 961, 966-67 (2d Cir.
1993) (CERCLA); United States v. Buckley, 934
F.2d 84, 88-89 (6th Cir. 1991) (CERCLA);
Baytank, 934 F.2d at 613 (RCRA).

-- 17 of 22 --

18
es, because we decline Ho’s invitation to use
ambiguous legislative history to interpret the
plain meaning of the statutory text, see Sale v.
Haitian Ctrs. Council, 509 U.S. 155, 169-70
(1993), we conclude that § 113(c)(2)(B) re-
quires only knowledge of the underlying fac-
tual elements and does not impose on the gov-
ernment the legal duty to give notice.
Ho plainly had knowledge of the underlying
factual elements of § 113(c)(2)(B), and in
particular of the presence of asbestos. The
preceding owner of the hospital informed Ho
that it contained asbestos. Ho sought an esti-
mate for removal costs from a licensed
asbestos abatement company, then specifically
tried to avoid those costs by hiring untrained
and unlicensed workers. Ho also received a
stop-work order, from the city, that should
have alerted him to the presence of asbestos
even if he had not already known that the
hospital contained asbestos.
Ho nevertheless ignored the order, sought
a second estimate from a licensed asbestos
abatement company, and continued the remov-
al project. In sum, the jury instruction stated
the correct legal standard of scienter, and the
evidence more than adequately supported a
jury finding that Ho acted with knowledge of
the underlying factual elements.
V.
Ho contends that his conviction is based on
an improperly promulgated regulation. The
asbestos work practice standard applies to
Ho’s activities only if the hospital satisfies the
regulatory definition of “facility,” 40 C.F.R.
§ 61.141. The EPA amended this definition in
1990,20 and Ho argues that the amendment
was improperly promulgated. Applying the de
novo standard of review,21 we disagree.
The CAA bars Ho’s procedural challenge
to the 1990 rulemaking that amended the defi-
nition of “facility.” First, § 307(b)(1), 42
U.S.C. § 7607(b)(1), requires any challenge to
20 Under the pre-1990 definition, “Facility
(continued...)
(...continued)
means any institutional, commercial, or industrial
structure, installation, or building (excluding apart-
ment buildings having no more than four dwelling
units).” 40 C.F.R. § 61.141 (1988). Under the
current definition,
Facility means any institutional, commer-
cial, public, industrial, or residential struc-
ture, installation, or building (including any
structure, installation, or building containing
condominiums or individual dwelling units
operated as a residential cooperative, but
excluding apartment buildings having four
or fewer dwelling units); any ship; and any
active or inactive waste disposal site. For
purposes of this definition, any building,
structure, or installation that contains a loft
used as a dwelling is not considered a
residential structure, installation, or build-
ing. Any structure, installation, or building
that was previously subject to this subpart is
not excluded, regardless of its current use or
function.
40 C.F.R. § 61.141 (2002). We need not, and do
not, address whether this regulation applies to an
individual residence. See Jones v. United States,
529 U.S. 848 (2000).
21 In a challenge to agency rulemaking, we usu-
ally look to the Administrative Procedure Act, 5
U.S.C. § 551 et seq., for the standard of review,
but the CAA bars review of the regulation in this
case, so we apply the de novo standard of review,
which is customary for questions of law. Cox v.
City of Dallas, 256 F.3d 281, 288 (5th Cir. 2001).

-- 18 of 22 --

19
a rulemaking under §§ 112 and 113 to be filed
in the District of Columbia Circuit. Title 40
C.F.R. § 61.141 is such a rule, so venue is im-
proper in the courts of this circuit. Second,
§ 307(b)(1) also requires any challenge to be
filed within sixty days of a final agency rule-
making. The amended definition became final
on November 20, 1990, 55 Fed. Reg. 48406,
years before Ho challenged its validity. Thus,
the amended definition is “not subject to ju-
dicial review in civil or criminal proceedings.”
42 U.S.C. § 7607(b)(2).
The ruling in Adamo Wrecking Co. v.
United States, 434 U.S. 275 (1978), does not
aid Ho. There, the Court permitted an other-
wise untimely challenge under § 307(b)(1) on
the question whether the disputed regulation
was in fact an “emission standard.” Id. at 285.
The Court specifically forbade the lower
courts, on remand, from considering whether
the agency had “complied with appropriate
procedures in promulgating the regulation . . .
[or] any of the other familiar inquiries which
arise in the course of an administrative review
proceeding.” Id. Ho does not dispute that 40
C.F.R. § 61.141 was promulgated under
§§ 112 and 113. Adamo therefore does not
apply.22
VI.
The government appeals the refusal to en-
hance Ho’s sentence for (1) repetitive dis-
charge of asbestos into the environment and
(2) leadership in an extensive criminal activity.
When reviewing a sentence, we review
findings of facts for clear error and
interpretations of the sentencing guidelines de
novo. United States v. Roberts, 203 F.3d 867,
869 (5th Cir. 2000).
A.
The government sought a six-level sentence
enhancement for an “ongoing, continuous, or
repetitive discharge, release, or emission of a
hazardous or toxic substance or pesticide into
the environment.” U.S.S.G. § 2Q1.2-
(b)(1)(A). The court declined, holding that the
phrase “into the environment” required proof
of a discharge outside t he hospital, which it
held the government had not established. The
government argues on appeal, as in the district
court, that the phrase “into the environment”
includes indoor air and, in any event, that it
proved a discharge of asbestos outside the
hospital. Because we conclude that the
government sufficiently proved, for purposes
of sentencing, a discharge outside the hospital
regardless of the meaning of “into the
environment,” we reserve the interpretive
question and assume only arguendo that
§ 2Q1.2(b)(1)(A) requires proof of a discharge
outside the hospital.
The district court clearly erred by ruling
that the government did not prove that Ho’s
activities resulted in a discharge of asbestos
outside the hospital. “A factual finding is
clearly erroneous ‘when although there is evi-
dence to support it, the reviewing court on the
entire evidence is left with the definite and firm
conviction that a mistake has been
committed.’” United States v. Cooper, 274
F.3d 230, 238 (5th Cir. 2001) (quoting United
States v. Hill, 42 F.3d 914, 918 (5th Cir.
1995)). The record leaves us with just this
conviction.
The court based its ruling on three main
factual findings. First, the workers removed
22 We also observe that the hospital satisfies the
pre-1990 definition of “facility” because Ho
purchased it and removed the asbestos for com-
mercial purposes, and the definition did not exclude
previously abandoned buildings.

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20
only one bag of fireproofing from the hospital,
and even then immediately retrieved the bag.
Second, the court concluded that the
government had not proven that wind had
blown asbestos out of the unsealed hospital.
Third, the court concluded that the
government had not established that dust
tracked outside the hospital by workers was
asbestos instead of innocuous sheetrock
residue. Though the first finding is correct,
the overwhelming weight of contrary evidence
cannot support the second and third findings
or the court’s ultimate conclusion.
An avalanche of facts supports the
government’s modest argument: that asbestos
must have escaped the unsealed hospital
during the asbestos removal.23 This conclusion
intuitively stands to reason, because the
hospital was never sealed, much less properly
sealed as required by regulation, 40 C.F.R. §
61.145, during seven weeks of asbestos
removal.
Yet, there is much more. Testimony at trial
supports this conclusion. Stewart, a building
inspector for the city, testified that he observed
airborne fireproofing dust inside the hospital
when he inspected it on February 2, 1998. He
further stated that the hospital had no
containment system that day to prevent the
dust from escaping. Hendrix, a TDH
inspector, recounted that he also observed
airborne fireproofing dust inside the hospital
when he inspected it on March 13, 1998.
Moreover, Hendrix testified that all the
doors and many of the windows to the hospital
were o pen. At the OSHA civil proceeding,
Hendrix also said that the hospital was “open
. . . with the wind blowing through it.”24 Wil-
liams, another TDH inspector, testified that he
took a sample of dust from the frame of an ex-
terior door and that the sample contained two
percent chrysolite asbestos. Finally, Wiest, a
certified asbestos removal contractor, inspect-
ed the hospital on April 3, 1998, and observed
an airflow through the unsealed doors and
windows and through the hole caused by the
explosion.
Photographs of the scene show that the
bags of removed fireproofing, though inside
the hospital, were open and unsealed, allowing
any breeze to blow the fireproofing out of the
bag. Another photo shows fireproofing dust
on or near an open exterior door. A third pho-
to shows a large hole in the second floor ex-
terior wall, though which workers frequently
threw debris into a dumpster on the ground
below. A fourth photograph shows dusty
footprints just outside an exterior door of the
hospital. Although the court stated that this
picture is as consistent with sheetrock residue
tracks, this is no different from saying that the
photograph is as consistent with fireproofing
dust tracks, which is more consistent with the 23 Ho incorrectly contends that the government
impermissibly relies on the presentence report
(“PSR”) for this argument. The government cites
the PSR, but only for the conclusion that asbestos
escaped the hospital; the facts behind this con-
clusion appear in the record. And, in any event, a
PSR is admissible as evidence for sentencing pur-
poses, though it may not be used to support a con-
viction on appeal if the defendant objects to the
PSR. Cooper, 274 F.3d at 239.
24 Ho objects to this testimony, but “sentencing
proceedings do not offer criminal defendants the
same procedural safeguards as trials.” United
States v. Goldfaden, 959 F.2d 1324, 1330 (5th
Cir. 1992). Furthermore, Ho gives no reason why
Hendrix’s testimony at the OSHA proceeding
should be deemed unreliable.

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21
other evidence.
Finally, we come to the remarkable fact of
the explosion on March 10, 1998, which was
strong enough to blow a hole in the exterior
wall of the hospital. Surely an explosion
strong enough to move mortared bricks was
also strong enough to move fine, loose
fireproofing dust. And, as with the other
openings on the exterior wall, Ho’s failure to
seal this new hole after the explosion obviously
allowed more fireproofing dust to escape.
This evidence, when considered as a whole,
leaves no doubt that asbestos escaped the
unsealed hospital continuously and repeatedly
throughout the removal project.25 We find
support for this conclusion in United States v.
Chau, 293 F.3d 96, 99-100 (3d Cir. 2002),
affirming an enhancement for repetitive
discharge under § 2Q1.2(b)(1)(A). The record
in Chau showed that the defendant had
disturbed asbestos inside a building and moved
open bags of asbestos outside the building.
Chau, 293 F.3d at 100. Although the court
was affirming a finding of repetitive discharge,
rather than reversing a finding of no repetitive
discharge, the facts in the instant case are
equally strong as those in Chau.
The government has proven an asbestos
discharge by a preponderance of the evidence,
which is all that is required at the sentencing
phase. Because the district court clearly erred
by holding otherwise, we vacate and remand
for re-sentencing.
B.
The government sought a four-level
sentence enhancement for Ho’s status as “an
organizer or leader of a criminal activity that
involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1(a).
The court instead imposed a two-level
enhancement under § 3B1.1(c), concluding
that Ho’s criminal activity did not involve five
or more participants and was not otherwise
extensive.
The only question is the meaning of
“otherwise extensive.” The government must
establish three elements for a § 3B1.1(a)
enhancement: (1) Ho was an organizer or
leader of a criminal activity, (2) that involved
at least one other criminally responsible
“participant”26 and (3) that ‘involved at least
five participants or was otherwise extensive.’
Section 3B1.1(c) also requires the first two
elements, but not the third. Thus, when it
imposed the two-level enhancement under §
3B1.1(c), the court found that Ho was an
25 Ho mistakenly argues that the government
must prove “actual environmental contamination.”
This phrase comes from application note 5 to
U.S.S.G. § 2Q1.2. We held in Goldfaden that note
5 presumes contamination if the government
proves discharge. Goldfaden, 959 F.2d at 1331.
These terms are not synonymous. A “dis-
charge” refers to the movement of hazardous or
toxic substances, whereas “contamination” refers
to the environmental effect of a discharge. Ho and
the government disagree only on the discharge
question. The record supports the government, not
Ho or the district court, on the discharge question,
so contamination is presumed according to note 5
and Goldfaden.
26 In United States v. Gross, 26 F.3d 552 (5th
Cir. 1994), we held that § 3B1.1 does not apply
unless the criminal activity involved at least two
criminally responsible “participants.” Application
note 1 to § 3B1.1 defines a “participant” as “a per-
son who is criminally responsible for the com-
mission of the offense, but need not have been con-
victed.”

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22
organizer and Escobedo was a criminally
responsible “participant.” Ho does not appeal
these findings, nor does the government
contend that the Mexican workers were
criminally responsible “participants.” Thus,
we consider only whether the district court
properly interpreted the phrase “otherwise
extensive.”
We usually review determinations under
§ 3B1.1 for clear error,27 but we apply the de
novo standard here because the court
misinterpreted the phrase “otherwise
extensive.” The parties do not dispute the
factual matter of Ho’s conduct, but rather the
legal meaning of the phrase “otherwise
extensive.” Although the district court was
somewhat opaque, it apparently interpreted
this phrase to require an ongoing criminal
organization of a kind that would justify an
upward departure (as distinguished from an
enhancement) under application note 2. We
review this legal interpretation of the guideline
de novo. Roberts, 203 F.3d at 869.
This interpretation misreads application
note 3 and ignores settled Fifth Circuit
precedent. Note 3 directs that “[i]n assessing
whether an organization is ‘otherwise
extensive,’ all persons involved during the
course of the entire offense are to be
considered.” Note 3 is binding on the federal
courts, Stinson v. United States, 508 U.S. 36
(1993), and instructs the court to examine
number of persons involved in the activity, not
the nature of the criminal organization.
Indeed, note 3 continues to state, by way of
example, that “a fraud that involved only three
participants but used the unknowing services
of many outsiders could be considered
extensive.” Thus, a criminal activity is
“otherwise extensive” if it involved five or
more people who “contributed to the success
of the scheme.” Davis, 226 F.3d at 360.
Moreover, we repeatedly 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.” Id. (emphasis added)
(citation omitted); Glinsey, 209 F.3d at 396.
The court erred by interpreting the phrase
“otherwise extensive” in § 3B1.1(a) to refer to
the nature of the criminal organization, as dis-
tinguished from the number of participants and
persons involved.28 We therefore vacate and
remand for new sentencing in light of the
proper and longstanding interpretation of that
phrase.
For the foregoing reasons, the judgment of
conviction is AFFIRMED, and the judgment
of sentence is VACATED and REMANDED
for proceedings consistent with this opinion.
27 See, e.g., United States v. Davis, 226 F.3d
346, 360 (5th Cir. 2000) (reviewing for clear er-
ror); United States v. Glinsey, 209 F.3d 386, 396
(5th Cir. 2000) (same).
28 Of course, Ho was convicted of failure to
comply with the asbestos work practice standard
and failure to give notice of intent to remove as-
bestos. Thus, he alone committed the specific
unlawful acts. Yet, these acts presuppose the un-
lawful asbestos removal activity, which involved
more than five persons.

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