United States of America v.  Michael Eugene Hillyer

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 05-4295 
MICHAEL EUGENE HILLYER,
Defendant-Appellee. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
Terrence W. Boyle, District Judge.
(CR-04-18)
Argued: May 26, 2006
Decided: August 1, 2006
Before MICHAEL and KING, Circuit Judges, and
Joseph F. ANDERSON, Jr., Chief United States District Judge
for the District of South Carolina, sitting by designation.
Vacated and remanded by published opinion. Judge Michael wrote
the opinion, in which Judge King and Chief Judge Anderson joined.
COUNSEL
ARGUED: Anne Margaret Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellant. J. Matthew Martin, Asheville, North Caro-
lina, for Appellee. ON BRIEF: Frank D. Whitney, United States
Attorney, Banumathi Rangarajan, Assistant United States Attorney,

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OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina; Todd S. Aagaard, John E. Arbab, UNITED STATES
DEPARTMENT OF JUSTICE, Environmental and Natural Resources
Division, Washington, D.C.; Carol Ann Siciliano, Assistant General
Counsel, UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY, Washington, D.C., for Appellant. Thomas C. Manning,
MANNING & CROUCH, Raleigh, North Carolina, for Appellee.
OPINION
MICHAEL, Circuit Judge:
Michael Eugene Hillyer pled guilty to two federal environmental
crimes involving illegal dredging in North Carolina’s Croatan Sound.
The government appeals Hillyer’s sentence of three years’ probation,
contending that the district court erred both in calculating the advisory
guideline range and in imposing a non-guideline (or variance) sen-
tence. We conclude that the guideline range was improperly calcu-
lated because the departure granted under U.S.S.G. § 5K2.20 for
aberrant behavior was unwarranted. We therefore vacate the sentence
and remand for rensentencing.
I.
A.
We recount the facts as established by the guilty plea and presented
without objection in the presentence report and at the sentencing hear-
ing. In March 1998 the U.S. Army Corps of Engineers (the Corps)
granted a permit to the North Carolina Department of Transportation
(DOT) to build a 5.25 mile bridge across the Croatan Sound from
Manns Harbor to Manteo. The bridge would be named the Virginia
Dare Memorial Bridge. In April 1998 DOT awarded a $100 million
construction contract to Balfour Beatty Construction, Inc. (Balfour).
The contract required Balfour to comply with the Corps permit, which
was issued under the Rivers and Harbors Act of 1899, 33 U.S.C.
§§ 401 et seq., and the Clean Water Act, 33 U.S.C. §§ 1251 et seq.
Construction began in 1998, but by mid-2000 the project was over
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budget and far behind schedule. Moreover, the project had an "abys-
mal safety record." J.A. 51. In June 2000 Balfour, in an effort to sal-
vage the job, brought in Hillyer as project manager. Hillyer had
supervised some of the largest and most complicated bridge projects
in the country. He had earned a reputation for competence and for
being a hardnosed and sometimes bullheaded manager who demanded
quality work from his employees. As the project’s new manager, Hill-
yer assumed responsibility for Balfour’s compliance with all applica-
ble permits and the federal environmental laws that they incorporated.
The original permit from the Corps prohibited the excavation of
material from, and the fill or disposal of material within, the affected
waters and wetlands, except as authorized by the permit or any modi-
fication. In 1998 at Balfour’s request, DOT obtained a permit modifi-
cation to allow construction of a temporary load-out trestle (or bridge)
to be built on pilings driven into the bottom of the Croatan Sound.
The permit authorized Balfour to hammer-drive the pilings into the
bottom of the sound; it did not authorize prop washing or jetting,
techniques used to dredge and displace material from the bottom of
a water course. ("Dredged soil" is a pollutant under the Clean Water
Act, 33 U.S.C. § 1362(6).) The trestle, completed in the fall of 1998,
extended 700 feet into the water and was 60 feet wide. It facilitated
the transport of construction materials from the shoreline to barges
out in the water.
The Virginia Dare Memorial Bridge opened August 9, 2002, on
schedule. Hillyer had completely rehabilitated the project, reducing
costs, ensuring a timely finish, and garnering an award for "the safest
project on the East Coast." J.A. 45. The positive run of events began
to turn, however, the day before the bridge opened. On August 8,
2002, Hillyer directed his employees to dump fill material from the
project into wetlands at a nearby marina site, in violation of the per-
mit and applicable federal laws. DOT requested that Balfour cease
dumping material at the marina site, but the company refused. A
Corps representative for regulatory matters then met with Hillyer to
advise him that depositing fill material was impermissible and would
require permit modification. He further instructed Hillyer on how to
contact the Corps directly for "guidance and authorization on regula-
tory compliance matters." J.A. 132. Hillyer, however, "responded
with profanity and essentially told the [Corps representative] that it
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was his (Hillyer’s) fill and he (Hillyer) would do what he (Hillyer)
wanted." Id.
After the bridge opened, Balfour began efforts to remove the trestle
so that it could be transported and reassembled at another bridge proj-
ect, where it was urgently needed. Balfour tried using a crane to
extract the trestle pilings, but sediment around the pilings blocked the
crane from getting close enough for the extraction. In late October
2002 Hillyer directed his employees to excavate a channel around the
trestle to facilitate crane access. Hillyer first instructed the employees
to use a clam bucket, but was promptly notified by DOT that this
activity constituted dredging and was impermissible under existing
permits. On October 22, 2002, Hillyer directed employees to use
another dredging technique, specifically prop dredging or prop wash-
ing with tugboat propellers, to displace material from the sound bot-
tom. The following day, upon discovering the prop dredging, DOT
faxed Hillyer a letter notifying him once again that he was violating
existing permits and must cease all dredging unless and until a permit
modification was obtained. In response, Hillyer sent DOT a request
that it seek permit modification from the Corps.
Without waiting for the necessary modification, Hillyer ordered
more prop dredging. He assembled the workers at 6 p.m. on Sunday,
October 27, at a nearby marina and arranged for them to be shuttled
by boat to the site, where they resumed the prop dredging. He ordered
his crew to shut down the dredging operation early the next two days,
around 3 or 4 p.m., only to return at night and resume the work under
cover of darkness, with the tugboat’s navigation lights turned off. Hil-
lyer took these unusual steps in an obvious attempt to conceal the
unpermitted activity from DOT. The concealment effort failed, how-
ever. A Balfour employee on board the tugboat the night of October
29 called Hillyer to report that "DOT was watching" and videotaping
the activity. J.A. 133. Hillyer, who was under considerable pressure
from Balfour to remove the trestle as quickly as possible, became
irate and instructed the crew to continue the prop dredging.
The dredging continued until October 31, 2002, when removal of
the trestle was completed. DOT thereafter sent three letters to Balfour
notifying it that the prop dredging was a permit violation. In late
December 2002 the Corps issued a notice of violation against Balfour
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for the unauthorized dredging. In January 2003, at DOT’s request,
Balfour removed Hillyer from all bridge projects (and eventually fired
him) because of his "inability to follow the reasonable direction of the
DOT’s resident engineers" and his violation of the permit and appli-
cable environmental laws. J.A. 133. DOT determined that the unau-
thorized dredging displaced roughly 5,500 cubic yards (about 500
dump truck loads) of sound bottom and disturbed 8.2 acres of shallow
water habitat designated as "high quality." J.A. 133. To mitigate the
damage and facilitate restoration, DOT deposited several tons of
"‘oyster clutch’ material" at the dredge site. J.A. 134.
B.
Balfour pled guilty in May 2004 to a two-count criminal informa-
tion charging violations of the Rivers and Harbors Act of 1899 and
the Clean Water Act. The company was sentenced to a $400,000 fine
and five years’ probation, which included a condition that its project
managers attend annual training on regulatory compliance. As
required by the plea agreement, Balfour also paid DOT’s mitigation
costs in full, totaling about $36,000. In April and May 2004 two Bal-
four employees who had worked under Hillyer during the prop dredg-
ing pled guilty to criminal informations charging violations of these
same statutes. The two were sentenced to probation and hours of com-
munity service.
Hillyer, for his part, pled guilty in October 2004 to two counts of
a four-count indictment: conspiring to violate the Rivers and Harbors
Act of 1899 and the Clean Water Act, see 18 U.S.C. § 371 (Count
One); and violating the Rivers and Harbors Act of 1899 and aiding
and abetting the violation, see 33 U.S.C. §§ 403, 406, and 18 U.S.C.
§ 2 (Count Two). Before downward adjustments, Hillyer’s offense
level was 20, which included a six-level increase for "ongoing, con-
tinuous, and repetitive discharge and release of a pollutant." J.A. 139;
see U.S.S.G. § 2Q1.3(b)(1)(A). The government moved for (1) a
three-level downward adjustment for acceptance of responsibility,
U.S.S.G. § 3E1.1; (2) two separate two-level downward departures
based on the lack of permanent environmental harm and the lack of
public health risk, U.S.S.G. § 2Q1.3, comment. (nn.4, 7); and (3) a
two-level upward adjustment for obstruction of justice, U.S.S.G.
§ 3C1.1. The court expressly granted the first request and expressly
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rejected the last; it did not rule on the second request, but implicitly
granted it by lowering Hillyer’s offense level to 13. Hillyer moved,
over the government’s objection, for a downward departure under
U.S.S.G. § 5K2.20 on the ground that his conduct constituted aberrant
behavior. The court did not expressly rule on the § 5K2.20 motion at
the sentencing hearing.
Without any departure for aberrant behavior, Hillyer’s offense
level was 13. This level, combined with a criminal history category
of I, would yield a guideline range of 12 to 18 months’ imprisonment.
At the hearing the district court announced that it was sentencing Hil-
lyer to three years’ probation, 300 hours of community service, and
a $10,000 fine. The court did not state its reasons for imposing proba-
tion, but indicated that a written order would follow.
Two written orders followed, the second in response to Hillyer’s
Rule 36 motion to correct the judgment. See Fed. R. Crim. P. 36. In
ruling on the motion, the district court clarified that it had granted a
three-level downward departure for acceptance of responsibility and
two two-level downward departures based on the lack of harm, yield-
ing an offense level of 13 and an advisory range of 12 to 18 months’
imprisonment. The court then stated that it was granting Hillyer’s
motion for a downward departure under § 5K2.20 for aberrant behav-
ior, but failed to specify the extent of this departure or the resulting
guideline range. In explaining the § 5K2.20 departure, the court stated
that Hillyer had "engaged in a single criminal transaction that did not
involve significant planning and was of limited duration." S.J.A. 151.
The court also concluded that Hillyer’s conduct was inconsistent with
his "long record of being attentive to environmental and safety con-
cerns," S.J.A. 151, and therefore represented "a marked deviation . . .
from [his] otherwise law-abiding life," U.S.S.G. § 5K2.20(b). The
other factors that the court considered in granting the § 5K2.20 depar-
ture were Hillyer’s age (66 at the time), the recent payment by his
employer (Balfour) of "substantial restitution," and the lack of perma-
nent harm to the environment or to human health. S.J.A. 151. Finally,
without identifying a guideline range recalibrated to include the
§ 5K2.20 departure, the court stated that it had considered the factors
in 18 U.S.C. § 3553(a) and had determined that "[a] guideline sen-
tence . . . is inadequate," S.J.A. 152, or "unduly harsh," J.A. 122.
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Accordingly, the court reimposed the original non-guideline sentence
of three years’ probation. The government appeals.
II.
We have previously outlined the steps a district court must take in
arriving at a sentence after United States v. Booker, 543 U.S. 220
(2005):
First, the court must correctly determine, after making
appropriate findings of fact, the applicable guideline range.
Next, the court must determine whether a sentence within
that range serves the factors set forth in [18 U.S.C.]
§ 3553(a) and, if not, select a sentence within statutory lim-
its that does serve those factors. In doing so, the district
court should first look to whether a departure is appropriate
based on the Guidelines Manual or relevant case law. . . .
If an appropriate basis for departure exists, the district court
may depart. If the resulting departure range still does not
serve the factors set forth in § 3553(a), the court may then
elect to impose a non-guideline sentence (a "variance sen-
tence"). The district court must articulate the reasons for the
sentence imposed, particularly explaining any departure or
variance from the guideline range.
United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006) (alter-
ations, internal quotation marks, and citations omitted).
"Our task in reviewing a post-Booker federal sentence is to deter-
mine whether the sentence is within the statutorily prescribed range
and is reasonable." Id. at 433 (internal quotation marks and citation
omitted). If, for example, a "sentence is based on an error in constru-
ing or applying the Guidelines, it will be found unreasonable and
vacated." United States v. Green, 436 F.3d 449, 457 (4th Cir. 2006);
see also 18 U.S.C. § 3742(f)(1). The government argues that the dis-
trict court misconstrued or misapplied guideline § 5K2.20 when it
granted Hillyer a downward departure for aberrant behavior. We
agree.
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A defendant may be eligible for a § 5K2.20 departure if he "com-
mitted a single criminal occurrence or single criminal transaction that
(1) was committed without significant planning; (2) was of limited
duration; and (3) represents a marked deviation by the defendant from
an otherwise law-abiding life." U.S.S.G. § 5K2.20(b). Because the
guidelines routinely take into account a defendant’s criminal history,
"aberrant behavior must ‘mean[ ] something more than merely a first
offense.’" United States v. DeBeir, 186 F.3d 561, 573 (4th Cir. 1999)
(citing United States v. Glick, 946 F.2d 335, 338 (4th Cir. 1991)). A
single occurrence or transaction of aberrant behavior suggests a
"spontaneous and seemingly thoughtless act[ion]." Glick, 946 F.2d at
338 (internal quotation marks and citation omitted); see United States
v. Bueno, 443 F.3d 1017, 1023 (8th Cir. 2006).
Hillyer gets nowhere under § 5K2.20 because he cannot satisfy the
guideline’s threshold requirement of a "single criminal occurrence or
single criminal transaction." U.S.S.G. § 5K2.20(b); see Glick, 946
F.2d at 338-39 & n.* (noting under an earlier version of the aberrant
behavior guideline that "a series of actions calculated to further crimi-
nal misconduct [cannot] be classified as aberrant behavior"). While
Hillyer’s conduct might have had a single motivation — to remove
the temporary trestle — it was not a single occurrence or transaction.
Rather, it constituted multiple criminal acts, with each occurrence of
prop dredging representing a violation of the permit and applicable
federal laws. See, e.g., 33 U.S.C. § 1311(a). Indeed, Hillyer was
assigned a six-level increase to his base offense level for "ongoing,
continuous, and repetitive discharge and release of a pollutant." J.A.
139; see U.S.S.G. § 2Q1.3(b)(1)(A).
Moreover, Hillyer’s conduct lacked at least two of the three charac-
teristics that a single criminal occurrence must have. First, his crime
was not committed without significant planning. See U.S.S.G.
§ 5K2.20(b). It instead required considerable planning — with an ele-
ment of deception included — as Hillyer attempted to avoid detection
and oversight by DOT. He assembled his crew off-site, at night, and
on Sunday; on the following two days he pretended to close the site
early, only to have his crew return at night and work under cover of
darkness. Second, Hillyer’s conduct was not of limited duration. It
persisted for roughly ten days, from October 22, 2002, through Octo-
ber 31, 2002, despite repeated warnings from DOT that it was illegal
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and must cease. See Bueno, 443 F.3d at 1023 (noting that offense car-
ried out over a number of days would not warrant a § 5K2.20 depar-
ture).
We recognize that the district court found that Hillyer has a "long
record of being attentive to environmental and safety concerns."
S.J.A. 151. This finding suggests that the district court believed that
Hillyer satisfied the third and final § 5K2.20(b) factor, requiring that
the conduct "represent[ ] a marked deviation by the defendant from
an otherwise law-abiding life." Even if this finding is supportable, it
does not change the complexion of Hillyer’s conduct during the tres-
tle removal. The prop dredging involved multiple and repeated crimi-
nal occurrences, required significant planning, and lasted over a week.
These factors establish that Hillyer’s conduct does not qualify as aber-
rant behavior under § 5K2.20. Moreover, Hillyer’s past record on
environmental protection may not be as flawless as the district court
believed. It appears that Hillyer engaged in at least one other environ-
mental violation during the project, the dumping of fill material into
nearby wetlands in August 2002.
In granting the § 5K2.20 downward departure, the district court
also considered three factors that have no bearing on the application
of that guideline section: Hillyer’s age, Balfour’s payment of restitu-
tion, and the lack of permanent environmental harm. Age is a discour-
aged departure ground to begin with. See U.S.S.G. § 5H1.1. More
important to this discussion, Hillyer is not elderly or infirm, and his
age did not turn his calculated behavior into aberrant behavior. As for
the payment of restitution, the "fulfillment of restitution obligations
only to the extent required by law" would be a prohibited departure
ground even if Hillyer, instead of his company, had paid it. U.S.S.G.
§ 5K2.0(d)(5). Finally, the district court had already taken into
account the lack of permanent environmental harm when it granted
the government’s motion for two two-level departures under § 2Q1.3,
comment. (nn.4, 7). In any event, the fact that Hillyer’s crimes did not
result in permanent harm has no relevance to whether his behavior
was "spontaneous and seemingly thoughtless," and thus aberrant.
Glick, 946 F.2d at 338 (internal quotation marks and citation omitted).
Because Hillyer’s sentence was imposed as a result of the miscon-
struction or misapplication of § 5K2.20 of the guidelines, we vacate
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the sentence as unreasonable and remand for resentencing. We do not
consider the government’s other argument that the sentence of proba-
tion, identified by the district court as a variance from the advisory
guideline range, is unreasonable. Because the § 5K2.20 departure was
of unspecified degree, we do not know from this record at what point
the downward departure ended and the variance began. We therefore
cannot ascertain to what extent the court intended to vary from the
advisory range. For this reason, we cannot review the variance on this
appeal. See Moreland, 437 F.3d at 433-34 (setting forth framework
for reviewing a variance sentence).
On remand the district court must resentence Hillyer without grant-
ing any § 5K2.20 departure. Based on conclusive determinations from
the initial sentencing, Hillyer’s total offense level is 13. This offense
level and Hillyer’s criminal history category of I yield an advisory
guideline range of 12 to 18 months’ imprisonment. In arriving at a
new sentence, the district court should consider whether this range
"serve[s] the factors set forth in § 3553(a)." Id. at 432.
VACATED AND REMANDED
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