United States of America v. Robert Landmesser

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-2958
UNITED STATES OF AMERICA
v.
ROBERT LANDMESSER,
Appellant
On Appeal from the United States
District Court for the Middle District
of Pennsylvania
District Judge: The Honorable Judge
James F. McClure, Jr.
(D.C. No. 03-cr-35)
Argued May 5, 2004
Before: SLOVITER and FUENTES,
Circuit J and POLLAK, District Judge*
(Filed: August 11, 2004)
D. Toni Byrd (Argued)
James V. Wade
Office of Federal Public Defender
Middle District of Pennsylvania
Williamsport, PA 17701
Daniel I. Siegel
Office of Federal Public Defender
Middle District of Pennsylvania
Harrisburg, PA 17101
Attorneys for Appellant
Christian A. Fisanick (Argued)
George J. Rocktashel
Thomas A. Marino
Office of United States Attorney
Middle District of Pennsylvania
Williamsport, PA 17701
Attorneys for Appellee
OPINION OF THE COURT
POLLAK, District Judge.
On December 25, 2002, appellant
Robert Landmesser (“Landmesser”), along
with two persons not involved in this
appeal, stole anhydrous ammonia from an
agricultural supply business in Mill Hall,
Pennsylvania. The anhydrous ammonia
was to be used to manufacture
methamphetamine. During the theft,
anhydrous ammonia vapor was released
from the tanks, burning Landmesser’s eyes
and throat. On the next day, Pennsylvania
state troopers arrested Landmesser.
A federal grand jury returned a one-
count indictment against Landmesser on
February 13, 2003, charging him with theft
* The Honorable Louis H. Pollak,
Senior District Judge for the Eastern
District of Pennsylvania, sitting by
designation.

-- 1 of 8 --

2
of anhydrous ammonia in violation of 21
U.S.C. § 864(a)(1)1 and 18 U.S.C. § 2.2
Landmesser entered a plea of guilty, and,
based on the factual findings and guideline
calculations set forth in the probation
official’s presentence report, the District
Court sentenced Landmesser to 24 months
imprisonment.3 Built into the sentence
was a two-level enhancement of the base
offense level pursuant to the specific
offense characteristic at U.S.S.G. §
2D1.12(b)(2), which applies when the
offense involves an “unlawful discharge,
emission, or release” into the environment
of a “hazardous or toxic substance.” The
District Court concluded that (1)
anhydrous ammonia is a “hazardous
substance” and (2) the release of the
anhydrous ammonia during the theft
constituted an “unlawful discharge,
emission, or release.”
Landmesser timely filed this
appeal.4 While Landmesser does not
dispute the District Court’s finding that
anhydrous ammonia is a “hazardous
substance,” he contends that the release of
the anhydrous ammonia was not
“unlawful,” and, therefore, that the two-
level enhancement grounded on guidelines
section 2D1.12(b)(2) was unwarranted.
For the reasons set forth below, we
conclude that the two-level enhancement
of Landmesser’s sentence was not
justified. Accordingly, we will remand the
case to the District Court for resentencing.
District Court Sentencing Ruling
1 a) It is unlawful for any
person – (1) to steal
anhydrous ammonia, . . .
knowing, intending, or
having reasonable cause to
believe that such anhydrous
ammonia will be used to
manufacture a controlled
substance in violation of
this part.
21 U.S.C. § 864(a)(1).
2 (a) Whoever commits an
offense against the United
States or aids, abets,
counsels, commands,
induces or procures its
commission is punishable
as a principal.
(b) Whoever willfully
causes an act to be done
which if directly performed
by him or another would be
an offense against the
United States, is punishable
as a principal.
18 U.S.C. § 2.
3 The sentence also included a
three-year term of supervised release, a
special assessment of $100 and a
required payment of $71.52 in restitution.
4 This court has appellate
jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742.

-- 2 of 8 --

3
The District Court based its
sentencing ruling on the presentence
report, which calculated Landmesser’s
offense level pursuant to the applicable
offense guideline – U.S.S.G. § 2D1.12.
Section 2D1.12 provides, in relevant part:
(a) Base Offense Level (Apply
the greater):
(1) 12, if the
d e f e n d a n t
intended to
manufacture a
c o n t r o l l e d
substance or
k n e w o r
believed the
p r o h i b i t e d
f l a s k ,
e q u i p m e n t ,
c h e m i c a l ,
product, or
material was
to be used to
manufacture a
c o n t r o l l e d
substance; or
(2) 9, if th e
defendant had
r e a s o n a b l e
c a u s e t o
believe the
p r o h i b i t e d
f l a s k ,
e q u i p m e n t ,
c h e m i c a l ,
product, or
material was
to be used to
manufacture a
c o n t r o l l e d
substance.
(b) S p e c i f i c O f f e n s e
Characteristics
(1) I f t h e
defendant (A)
intended to
manufacture
methampheta-
mine, or (B)
k n e w ,
believed, or
h a d
r e a s o n a b l e
c a u s e t o
believe that
p r o h i b i t e d
f l a s k ,
e q u i p m e n t ,
c h e m i c a l ,
product, or
material was
to be used to
manufacture
methampheta-
mine, increase
by 2 levels.
(2) If the offense
involved (A)
an unlawful
d i s c h a r g e ,
emission, or
release into
t h e
environmen t
o f a

-- 3 of 8 --

4
hazardous or
t o x i c
substance; or
( B ) t h e
u n l a w f u l
transportation
, treatment,
storage, o r
disposal of a
h a z a r d o u s
w a s t e ,
increase by 2
levels.
U.S.S.G. § 2D1.12.
Because Landmesser “knew” that
the anhydrous ammonia “was to be used to
manufacture a controlled substance,” the
District Court set a base offense level of
12 pursuant to U.S.S.G. § 2D1.12(a)(1);
additionally, because Landmesser “knew”
that the anhydrous ammonia “was to be
used to manufacture methamphetamine,”
the offense level was increased by two
l e v e l s pur sua nt to U.S .S .G . §
2D1.12(b)(1).5 Finally, because the
District Court concluded that the offense
involved an “u nlaw ful discharge,
emission, or release” of a “hazardous
substance,” the offense level was increased
by an additional two levels pursuant to
U.S.S.G. § 2D1.12(b)(2).
At the sentencing hearing,
Landmesser objected to the two-level
increase pursuant to § 2D1.12(b)(2),
maintaining that, although there may have
been a release, it was not an “unlawful”
one as defined by Application Note 3 to
U.S.S.G. § 2D1.12. Application Note 3
states, in relevant part:
Subsection (b)(2) applies if
the conduct for which the
defendant is accountable
under § 1B1.3 (Relevant
Conduct) involved any
discharge, emission, release,
transportation, treatment,
s t o r a g e , o r d i s p o s a l
violation covered by the
Resource Conservation and
Recovery Act, 42 U.S.C. §
6928(d), the Federal Water
Pollution Control Act, 33
U.S.C. § 1319(c), or the
C o m p r e h e n s i v e
Environmental Response,
Compensation, and Liability
Act, 42 U.S.C. §§ 5124,
9603(b).6
Landmesser argued at the sentencing
5 During Landmesser’s change of
plea proceeding, the court specifically
asked Landmesser if, when he was
attempting to steal the anhydrous
ammonia, he “knew perfectly well that it
was intended to be used for making
methamphetamine.” Joint App. at 31, ll.
10-13. Landmesser answered this
question in the affirmative. Id. at l. 14.
6 The reference in Application Note
3 to 42 U.S.C. § 5124 appears to be a
typographical error. Section 5124 of
Title 42 does not exist. The Sentencing
Commission likely intended to reference
49 U.S.C. § 5124.

-- 4 of 8 --

5
hearing that, pursuant to Application Note
3, the two-level enhancement could only
apply if the government had proved by a
preponderance of the evidence that there
was a “discharge, emission, or release”
violating the Resource Conservation and
Recovery Act (“RCRA”), the Federal
Water Pollution Control Act (“FWPCA”)
or the Comprehensive Environmental
Response, Compensation, and Liability
Act (“CERCLA”).
The District Court overruled
Landmesser’s objection to the proposed
sentence enhancement, stating:
[The Court]: Now, the pre-
sentence report contains in
paragraphs seven through
ten, I guess, the offense
conduct as summarized by
Mr. Rocktashel. And there
are about three instances
referenced there where there
was a release of the vapor.
Paragraph ten refers
to the fact that on that
particular instance the vapor
released from the tanks
made Landmesser’s eyes
and throat burn. Paragraph
13 refers to an entire area
being covered in a vapor
cloud. Paragraph 14 refers
to Landmesser being burned
when anhydrous ammonia
was released from one of the
tanks, and he received
medical treatment for the
chemical burn at Memorial
Hospital in Towanda.
It can hardly be
argued that that release was
lawful. In other words, that
Mr. Landmesser had any,
you know, authority to be
r e le a s i n g it. A s I
understand, the defense
counsel’s position for it to
be considered unlawful
under that clause, it has to
qualify under application
note three as having been a
violation covered by those
specific sections of the three
statutes.
I don’t think that’s a
reasonable interpretation of
t h a t s e c t io n o f t h e
guidelines. First of all, the
language of application note
three is not exclusive, and I
think to interpret it as
e x c l u s ive is not th e
r e a s o n a b l e , l o g i c a l
interpretation of clause two.
T h e r e f o r e , t h e
objection is overruled. The
Court believes that the
conduct in this instance
q u a l i f i e s f o r t h a t
enhancement and that the
release of that occurred, and
it was unlawful for the
p u r p o s e s o f t h i s
enhancement.
And even though the
Court does not find – I’ll

-- 5 of 8 --

6
certainly make that of
record; the Court does not
find it was unlawful with
respect to any specific
statutory provisions that are
recited in the application
note three. So that’s clear on
the record.
Ms. Byrd: Just so I’m clear,
Your Honor, you’re finding
it’s unlawful because there
was a release during the
theft?
The Court: Yes.
App. 69-70 ll. 13-25.
The District Court then applied §
2D1.12(b)(2)’s two-level enhancement to
Landmesser’s sentence and sentenced him
to 24 months imprisonment.
Discussion
Our review of the District Court’s
application of U.S.S.G. § 2D1.12(b)(2) is
plenary. United States v. Brennan, 326
F.3d 176, 200 (3d Cir. 2003), cert. denied,
540 U.S. 898 (2003).
Landmesser argues that the District
Court’s enhancement of his sentence by
two levels under U.S.S.G. § 2D1.1(b)(2)
was inappropriate because, as the District
Court was at pains to make clear, the
conduct for which Landmesser was
accountable was not found by the District
Court to be a “discharge, emission, or
release” constituting a “violation covered
by” any of the three environmental statutes
referred to in Application Note 3.
Landmesser maintains that the District
Court’s interpretation of “unlawful” in
U.S.S.G. § 2D1.1(b)(2) – namely that
Landmesser was without “authority to be
releasing” the anhydrous ammonia –
renders Application Note 3 meaningless.
T h e g o v e r n m e n t c o n t e n d s t h a t
Landmesser’s arguments fail because he
does not cite to any “authority holding that
[U.S.S.G. § 2D1.1(b)(2)] requires a
violation of one of the specific
environmental provisions set forth in the
application note.”
We find the government’s argument
unconvincing. Under the basic tenets of
statutory construction, which apply to
sentencing guideline interpretation, United
States v. Milan, 304 F.3d 273, 293 (3d Cir.
2002), attention must be addressed to the
entirety of a text, with a view to avoiding
interpretations that would render any
phrase superfluous. United States v. Swan,
275 F.3d 272, 280 (3d Cir. 2002). And we
have specifically ruled that “[a]n
application note must be given ‘controlling
weight unless it is plainly erroneous or
inconsistent with the regulation.’” United
States v. Sau Hung Yeung, 241 F.3d 321,
325 n.2 (3d Cir. 2001) quoting United
States v. Miller, 224 F.3d 247, 253 n.8 (3d
Cir. 2000).
The Sentencing Commission, in
prefacing the phrase “discharge, emission,
or release” with the modifier “unlawful” in
§ 2D1.12(b)(2), manifestly intended the

-- 6 of 8 --

7
adjective to have meaning.6 That meaning
is found in the text of Application Note 3.
Under the language of Application Note 3,
§ 2D1.12(b)(2)’s enhancement applies if
the release of anhydrous ammonia that
occurred during the theft was a “violation
covered by” one of the three enumerated
statutes – RCRA, FWPCA or CERCLA.7
6 Compare U.S.S.G. § 2Q1.2, which
addresses Mishandling of Hazardous or
Toxic Substances. The base offense
level is 8. “If the offense resulted in an
ongoing, continuous, or repetitive
discharge, release, or emission of a
hazardous or toxic substance or pesticide
into the environment,” an increase of 6
levels is called for. § 2Q1.2(b)(1)(A).
Where the offense “otherwise involved a
discharge, release, or emission of a
hazardous or toxic substance or
pesticide,” the required increase is 4
levels. § 2Q1.2(b)(1)(B). With respect
to the application of this guideline,
whether the “discharge, release, or
emission” is “unlawful” is not a stated
factor.
7 The government invokes United
States v. Robison, 19 Fed. Appx. 490
(9th Cir. 2001), an unpublished, non-
precedential Ninth Circuit opinion, in
which that court addressed U.S.S.G. §
2D1.1(b)(5) and its Application Note 20,
which has subsequently been renumbered
Application Note 19. U.S.S.G. § 2D1.1
is the general drug guideline governing
Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including
Possession with Intent to Commit These
Offenses). The base offense level varies
dramatically, depending on the type and
quantity of the drugs, on whether use of
the drugs has resulted in serious injury or
death, and on whether the defendant has
a prior conviction for a similar offense.
Among the specific offense
characteristics is § 2D1.1(b)(5), which
provides for a 2-level increase in offense
level for “an unlawful discharge,
emission, or release into the environment
of a hazardous or toxic substance.” The
initial wording of Application Note 19
(former Application Note 20) is verbatim
the initial wording of Application Note 3
of § 2D1.12(b)(2).
The Robison court concluded that
nothing in the wording of U.S.S.G. §
2D1.1(b)(5) or the application note
suggests “that the enhancement can apply
only if a defendant is also convicted for
violating one of the environmental
statutes listed in the Application Note.”
(emphasis in original). Id. at 497. In the
instant matter, the government’s reliance
on Robison is misplaced. Landmesser
does not argue that, pursuant to
Application Note 3, section
2D1.12(b)(2)’s enhancement would only
apply if he had been convicted of a
violation under one of the three
enumerated statutes. Landmesser argues
that, to support the two-level
enhancement, the sentencing court must
make a finding of a violation of one of
the three statutes, and that in the case at
bar the District Court specifically noted
that it had not found that the release

-- 7 of 8 --

8
The District Court expressly stated that it
did not find that the release of the
anhydrous ammonia was “unlawful with
respect to any specific statutory provisions
that are recited in the application note
three.” The District Court concluded that
the release of the anhydrous ammonia was
“unlawful” because Landmesser, having
stolen the anhydrous ammonia, had no
“authority to be releasing it.” Under the
District Court’s rationale, § 2D1.12(b)(2)
would appear to apply in every instance in
which a “discharge, emission, or release”
occurs in the course of a theft – an
interpretation that would render
A p p l i c a ti o n N o t e 3 e s s e n t i a l l y
meaningless.8
A c co rd in gl y, L a n d m e s s e r ’ s
sentence will be vacated and this matter
will be remanded for resentencing in
accordance with this opinion.
constituted such a violation.
8 We find no support for the
proposition that the language of
Application Note 3 is not exclusive.
Nothing in the Note suggests that §
2D1.12(b)(2) is meant to apply to
conduct covered by environmental
provisions other than the three that are
specifically enumerated. Cf. Collinsgru
v. Palmyra Bd. of Educ., 161 F.3d 225,
232 (3d Cir. 1998) (“The canon of
expressio unius est exclusio alterius
means that explicit mention of one thing
in a statute implies a congressional intent
to exclude similar things that were not
specifically mentioned.”). For the
application of expressio unius est
exclusio alterius to interpretation of the
guidelines, see United States v. Milan,
supra, 304 F.3d at 293.
The government’s brief presents a
further argument captioned as follows:
“Even if the District Court Construed §
2D1.12(b)(2) Too Broadly, Landmesser’s
Conduct Was ‘Covered By’ the
Environmental Provisions Specified in
the Application Notes.” In support of
this argument the government cites two
statutes – 42 U.S.C. § 9603(b) and 49
U.S.C. § 5104(b) – and contends that
Landmesser’s conduct was “covered by”
each of these statutes. As to the second
of these statutes the government says that
what Landmesser did was “‘covered’ by
[the statutory provision], if not
constituting an actual violation of that
provision.” However (as noted above),
Application Note 3 only addresses
conduct constituting a “violation covered
by” (emphasis added) a listed statute.
And the District Court (as also noted
above) expressly “[did] not find [that
Landmesser’s conduct] was unlawful
with respect to any specific statutory
provisions that are recited in the
application note three.”

-- 8 of 8 --