United States of America v. Michael J. Kuhn

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0348P (6th Cir.)
File Name: 03a0348p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
MICHAEL J. KUHN,
Defendant-Appellee.
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No. 02-1031
Appeal from the United States District Court
for the Eastern District of Michigan at Bay City.
No. 99-20060—David M. Lawson, District Judge.
Argued: May 6, 2003
Decided and Filed: October 1, 2003
Before: BOGGS, Chief Circuit Judge; GUY and
DAUGHTREY, Circuit Judges.
_________________
COUNSEL
ARGUED: Jennifer J. Peregord, UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellant. William A.
Brisbois, BRISBOIS & BRISBOIS, Saginaw, Michigan, for
Appellee. ON BRIEF: Jennifer J. Peregord, UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellant.
2 United States v. Kuhn No. 02-1031
William A. Brisbois, BRISBOIS & BRISBOIS, Saginaw,
Michigan, for Appellee.
_________________
OPINION
_________________
BOGGS, Chief Circuit Judge. Michael J. Kuhn was
sentenced to six months at a halfway house and six months of
supervised release following his conviction for improperly
discharging a pollutant into navigable waters, causing an
employee to falsify test results in records submitted to the
government, and signing and submitting a report to the
government that he knew contained false test results. The
government now appeals a four-level downward departure
granted by the district court to Kuhn. For the reasons set
forth below, we reverse, and remand the case for
resentencing.
Kuhn was the Superintendent of the Bay City, Michigan,
Wastewater Treatment Plant (the Plant). The wastewater that
comes into the Plant goes through a number of stages before
being released into the Saginaw River. On or about
August 25, 1996, during the midnight shift, staff at the Plant
began cleaning the chlorine contact chamber, which is the
penultimate stage of the process. The Plant had a National
Pollutant Discharge Elimination System (NPDES) permit that
governed its operation under the Clean Water Act (CWA).
The plant was obligated to notify the Michigan Department of
Environmental Quality (DEQ) within five days of any
accidental spill or bypass of the treatment system. At the end
of August 1996, sludge from the chlorine contact chamber
was illegally pumped into a ditch while the chlorine contact
chamber was being cleaned. This was done on Kuhn’s
orders. In November 1996, Kuhn had the soil from the ditch
excavated and hauled away.

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No. 02-1031 United States v. Kuhn 3
1“BOD-5" refers to a test which mea sures a wastewater sam ple’s
“Bio chem ical Oxygen Demand” over a 5 -day period .
2Kuhn maintains that the high numbers were only for the influent
flow and that the numbers for the effluent flow were in line with the
monthly averages. He therefore purportedly concluded that the influent
flow numbe rs must have been incorrect.
Pursuant to the Plant’s NPDES permit, the Plant was
required to submit monthly discharge monitoring reports to
the DEQ. As superintendent, Kuhn certified the accuracy of
the information in these reports. The reports contained data
regarding laboratory findings charting both the material
coming into the Plant (“influent”) and the material being
discharged from the Plant (“effluent”). A Plant technician
drew Kuhn’s attention to very high numbers for BOD-51 on
a sample drawn May 3, 1997. Kuhn asked the technician to
change the results, and the technician refused. The technician
made a copy of the original printout, suspecting that the
numbers might be altered in the final report to the DEQ.
Later, another technician gave the final report for the month
of May to Kuhn for his review and signature. He told her that
the test results for suspended solids, total phosphorous, and
BOD-5 for May 3 must be wrong and asked her to change the
numbers to the averages for the month. She refused.
However, when she checked the final report, the data for
May 3 had been changed to the monthly averages.2 Kuhn
then asked yet another technician to change the test results,
which he did. The technician wrote a memo memorializing
the fact that he had changed the test results at Kuhn’s
direction. Kuhn signed the final, altered report on June 10,
1997, and submitted it to the DEQ.
Kuhn was subsequently indicted in a four-count indictment
that charged: first, that between August 23 and 30, 1996,
Kuhn knowingly caused plant workers to dispose of sewage
sludge improperly, which resulted in the sludge flowing into
a ditch on the plant property and then into the Saginaw River,
a navigable waterway, in violation of 33 U.S.C. § 1345(a) and
4 United States v. Kuhn No. 02-1031
18 U.S.C. § 2; second, that between the same dates he
knowingly caused the sewage sludge to be discharged from
the ditch into the Saginaw River, in violation of 33 U.S.C.
§ 1311(a) and 18 U.S.C. § 2; third, that on June 9, 1997, he
caused an employee to assist in falsifying test results that
were included in records that, under the CWA, were required
to be filed, in violation of 33 U.S.C. § 1319(c)(4) and
18 U.S.C. § 2; and fourth, that on June 10, 1997, he signed
and submitted to the DEQ a discharge monitoring report,
required by the CWA, which he knew contained the false test
results, in violation of 33 U.S.C. § 1319(c)(4).
After a three-week jury trial, the jury returned a verdict of
guilty on all counts. Kuhn filed a post-verdict motion for
judgment of acquittal. The district court granted this motion
in part, dismissing count two on double jeopardy grounds.
The presentence report (PSR) calculated Kuhn’s sentencing
range at 30-37 months, with a total offense level of nineteen.
This number was reached by finding a base offense level of
six for count one (U.S.S.G. § 2Q1.3(a)). The PSR then
recommended two four-level increases for specific offense
characteristics: pursuant to § 2Q1.3(b)(1)(B), due to the
offense involving a discharge or release of a pollutant; and
pursuant to § 2Q1.3(b)(4), due to the offense involving a
discharge without a permit or in violation of a permit. The
PSR recommended two additional two-level increases:
pursuant to § 3B1.1(c) for Kuhn’s role as an organizer, leader,
manager, or supervisor in a criminal activity; and pursuant to
§ 3B1.3 due to his abuse of a position of public trust in a
manner that significantly facilitated the commission or
concealment of this offense. This resulted in a recommended
adjusted offense level of eighteen for count one.
For counts three and four, the PSR recommended a base
offense level of six (§ 2Q1.3(a)) with the same two increases
for leadership role and abuse of a position of public trust.
This resulted in a recommended adjusted offense level of ten
for counts three and four. According to the grouping rules,
found at § 3D1.4, one offense level was added to the group

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No. 02-1031 United States v. Kuhn 5
with the highest adjusted offense level. Therefore, the
recommended combined adjusted offense level was nineteen.
At the sentencing hearing, the defense objected to the
addition of the increases for the two specific offense
characteristics. The court overruled this objection, finding
that application of the two specific offense characteristics did
not constitute double-counting. Next, the government
objected to the PSR’s omission of its requested 11-level
enhancement pursuant to § 2Q1.3(b)(2) because the offense
resulted in a substantial likelihood of death or serious bodily
injury. The court overruled the government’s objection.
Next, the government objected to the PSR’s failure to include
a two-level increase for obstruction of justice, pursuant to
§ 3C1.1 and application note 4(b), based on Kuhn’s false
testimony given at trial. The court overruled the
government’s objection.
The defense did not object to the two two-level increases
for Kuhn’s leadership role and abuse of a position of public
trust. The defense, however, did move for a downward
adjustment or departure, based on § 2Q1.3, application notes
4 and 7, which advise the court that upward and downward
departures are appropriate depending upon the harm or risk
associated with the offense. The court departed downward
two levels with regard to each offense characteristic, for a
total of four levels subtracted from the adjusted offense level
for count one. The court explained that testing of the affected
areas did not indicate any presence of PCBs, that the chlorine
contact chamber was the last stage that polluted water reached
before it was released into the environment, and that there
were serious questions in the court’s mind “as to whether any
of the contents of that ditch ever made it into the Saginaw
River.”
At this point, the adjusted offense level for count one stood
at fourteen. The court then calculated that, pursuant to
§ 3D1.4, two levels were to be added to that for grouping
purposes. This resulted in a combined offense level of
6 United States v. Kuhn No. 02-1031
sixteen. The defense then moved for a downward departure
based on Kuhn’s acts of a charitable or public service nature
within the community.
The court denied the motion, but went on to state that it
doubted that a 21- to 27-month term of incarceration “serves
the ends of justice in this case.” The court stated that it
questioned the two two-level adjustments for role in the
offense and abuse of a position of public trust. It stated that
“the offense in this case did not necessarily entail an abuse of
trust that was separate and apart from the defendant’s position
that permitted him to be a leader or organizer of the activity.”
Therefore, the court concluded, scoring the two adjustments
in a single case constituted an over-counting. Moreover, the
court stated that, although applying the two specific offense
characteristics did not constitute double-counting, it “put
undue weight on the offense characteristics for this specific
offense,” because the offense for which Kuhn was convicted
consisted of a single discharge. The court also noted that it
felt that the sentence in the case
ought to be fashioned around the fact that the discharge
in this case resulted from essentially a single incident that
occurred over a day or two, and was motivated by the
defendant’s desire to make the plant more efficient so
that it would perform the function of enhancing the
environmental quality as opposed to degrading it.
Therefore, the court departed downward by four additional
levels.
In its judgment, the court added more reasons for granting
the additional four-level downward departure, indicating that
“[t]he circumstances of this case, including the defendant’s
motivation and purpose, takes this case out of the ‘heartland’
of offenses contemplated by the Sentencing Guidelines.”
First, the court reiterated that Kuhn “was motivated by a
desire to clean up and improve the efficient operation of the
Bay City Wastewater Treatment Plant.” Apparently, the court

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No. 02-1031 United States v. Kuhn 7
3The initial four-level downward departure, pursuant to § 2Q1.3,
app lication notes 4 and 7 , was a guided departure.
concluded that Kuhn was taking a shortcut, engaging in
conduct not authorized by the permit issued to the plant, and
violated the Clean Water Act in so doing. The court went on
to say:
Given the defendant’s background, however, his length
of service in the area of public waste management, and
other minor factors such as his community involvement
and exemplary personal record of achievements in the
community, the Court finds credible the defendant’s
professed motive that the efficient, pollution-free
operation of the Bay City Wastewater Treatment Plant
was his ultimate goal.
Therefore, the court imposed a sentence based on offense
level twelve and a criminal history category of I. Kuhn was
sentenced to six months at a halfway house, six months of
supervised release, and the minimum fine of $6,000.
The government filed a timely notice of appeal, appealing
the unguided four-level downward departure.3 It first argues
that the district court gave no notice to the government of its
intention to depart on the basis of Kuhn’s role in the offense
and abuse of a position of public trust enhancements, nor on
the basis of the application of the specific offense
enhancements of § 2Q1.3. The government argues that even
if it had received proper notice, the downward departure on
these bases was improper. Finally, the government argues
that the additional reasons for the downward departure added
in the district court’s judgment were not supported by any
factual bases and are discouraged factors for downward
departures under the sentencing guidelines, and that the
district court did not give notice of its intent to depart
downward on these bases.
8 United States v. Kuhn No. 02-1031
We review a district court’s decision to grant a downward
departure for an abuse of discretion. See United States v.
Reed, 264 F.3d 640, 646 (6th Cir. 2001) (citing Koon v.
United States, 518 U.S. 81, 100 (1996)). A sentencing court
may impose a sentence outside the guidelines range only if
the court finds “that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission in
formulating the guidelines . . . .” U.S.S.G. § 5K2.0 (quoting
18 U.S.C. § 3553(b)). A district court abuses its discretion
when it fails to give notice of its intention to depart. See
Burns v. United States, 501 U.S. 129, 135 n.4 (1991); United
States v. Yang, 281 F.3d 534, 547 (6th Cir. 2002). The
district court departed downward based on three reasons. We
consider the validity of these reasons separately below.
1. Departure based on enhancements for Kuhn’s role in
the offense and abuse of a position of public trust.
The district court failed to give notice to the government of
its intention to depart on this basis. Rule 32 of the Federal
Rules of Criminal Procedure provides that:
Before the court may depart from the applicable
sentencing range on a ground not identified for departure
either in the presentence report or in a party's prehearing
submission, the court must give the parties reasonable
notice that it is contemplating such a departure. The
notice must specify any ground on which the court is
contemplating a departure.
Fed. R. Crim. P. 32. The district court’s failure to notify the
government that it was planning to depart on this basis was
error. See Yang, 281 F.3d at 547.
Even if the district court had given the government notice,
the downward departure based on these enhancements was
improper. During the sentencing hearing, defense counsel
conceded, and the district court found, that both

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No. 02-1031 United States v. Kuhn 9
enhancements were proper in this case. However, the district
court stated that the enhancements, if applied cumulatively,
over-counted because “the offense in this case did not
necessarily entail an abuse of trust that was separate and apart
from the defendant’s position that permitted him to be a
leader or organizer of the activity.” In its judgment, the
district court added to its rationale, stating that the abuse of
trust enhancement should be discounted because “a
significant number of members of the general public did not
enjoy a beneficial or quasi-fiduciary relationship with the
defendant in his role as a public servant.”
The abuse of a position of public trust enhancement
“applies to persons who abuse their positions of trust . . . to
facilitate significantly the commission or concealment of a
crime.” U.S.S.G. § 3B1.3, comment. (backg’d.). “[A
position of public or private trust is] characterized by
professional or managerial discretion (i.e., substantial
discretionary judgment that is ordinarily given considerable
deference).” Id. at comment. (n.1). As the district court
impliedly found when it applied the enhancement, Kuhn
satisfied these elements.
The district court’s reasoning that the abuse of trust
enhancement should be discounted because “a significant
number of members of the general public did not enjoy a
beneficial or quasi-fiduciary relationship with the defendant
in his role as a public servant” is invalid under our opinion in
United States v. White, 270 F.3d 356 (6th Cir. 2001). There
we held that “the general public may be victims of a
government employee’s crimes for purposes of deciding
whether the employee’s sentence may be enhanced pursuant
to § 3B1.3.” Id. at 371. The defendant in White was a
general superintendent at a drinking water treatment plant
who was convicted of filing false reports. Although the
question there was whether the enhancement should apply to
White, while here we are reviewing a downward departure
after the enhancement has already been applied, the court’s
holding is relevant here. The district court’s statement in
10 United States v. Kuhn No. 02-1031
departing downward seems to indicate that it believes the
enhancement should not have been applied. If this is the case,
then the district court should not have applied the
enhancement in the first place. However, it is clear that the
enhancement was properly applied. Kuhn was a government
employee, charged with the safe and efficient operation of a
wastewater treatment operation. He was convicted of
knowingly causing sewage sludge to be discharged into a
navigable waterway and falsifying reports. The statutes that
were violated were in place to protect the general public from
this sort of activity. It is difficult to see how members of the
general public were not in a beneficial relationship with
Kuhn, as significant numbers of the public depended upon
Kuhn to prevent or ameliorate water pollution in the area.
Moreover, his high-level position with respect to his public
function of wastewater treatment, “contributed in some
significant way to facilitating the commission” of his offense.
U.S.S.G. § 3B1.3, comment. (n.1).
The aggravating role enhancement “increase[s] the offense
level based upon the size of the criminal organization . . . and
the degree to which the defendant was responsible for
committing the offense.” U.S.S.G. § 3B1.1, comment.
(backg’d.). It generally addresses a defendant’s relative
responsibility for the crime. Again, the district court found
that Kuhn satisfied these elements when it applied the
enhancement. The aggravating role enhancement relates to
Kuhn’s role as a supervisor over others in the operation of the
Plant. Kuhn directed others to discharge the contents of the
chlorine contact chamber into the ditch, and directed
technicians to change test results.
Applying these two enhancements cumulatively does not
“over-count,” as each enhancement has elements that are not
necessary for the determination of the other. In White, this
court addressed the appropriateness of applying both a
leadership and an abuse-of-trust enhancement. See White,
270 F.3d at 371-73. The district court in White applied the
§ 3B1.3 enhancement solely because it found the defendants

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No. 02-1031 United States v. Kuhn 11
used a special skill in committing their offenses. Id. at 370.
When it declined also to apply the enhancement because of
the abuse of a position of public trust, the district court
foreclosed the government from seeking an aggravating role
enhancement under § 3B1.1. Ibid. (citing § 3B1.3 “if this
adjustment is based solely on the use of a special skill, it may
not be employed in addition to an adjustment under § 3B1.1
(Aggravating Role).”) We reversed, and remanded the case
to the district court, directing that it apply the abuse-of-trust
enhancement and to “consider the propriety of also enhancing
White’s sentence pursuant to Section 3B1.1.” Id. at 373.
“Absent an instruction to the contrary, the adjustments from
different guideline sentences are applied cumulatively (added
together).” U.S.S.G. § 1B1.1, comment. (n.4). As the district
court found that Kuhn satisfied the requirements for the
enhancements, it was an abuse of discretion to find that the
application of the enhancements together constituted double-
counting and therefore merited a downward departure. A
sentencing court may impose a sentence outside the
guidelines range only if the court finds “that there exists an
aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines . . . .”
U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). It is clear
that the Sentencing Commission took into consideration the
application of two or more enhancements for the same
conduct. The district court did not identify any facts or
circumstances that would take Kuhn’s case outside of the
“heartland” of offenders who violate their position of public
trust while simultaneously supervising others in illegal
activity.
The district court erred first by not notifying the
government that it intended to depart on this basis. Even if
proper notice had been provided, the district court abused its
discretion in departing on this basis.
12 United States v. Kuhn No. 02-1031
2. Departure based on the specific offense enhancements
of Section 2Q1.3
Section 2Q1.3 addresses the offense for which Kuhn was
convicted. The relevant specific offense characteristics are:
b) Specific Offense Characteristics
(1) (A) If the offense resulted in an ongoing, continuous,
or repetitive discharge, release, or emission of a pollutant
into the environment, increase by 6 levels; or
(B) if the offense otherwise involved a discharge, release,
or emission of a pollutant, increase by 4 levels.
(2) If the offense resulted in a substantial likelihood of
death or serious bodily injury, increase by 11 levels.
(3) If the offense resulted in disruption of public utilities
or evacuation of a community, or if cleanup required a
substantial expenditure, increase by 4 levels.
(4) If the offense involved a discharge without a permit
or in violation of a permit, increase by 4 levels . . . .
U.S.S.G. § 2Q1.3.
The district court enhanced Kuhn’s base offense level by
four levels for both § 2Q1.3(b)(1)(B) and § 2Q1.3(b)(4), as
the offense involved “a discharge” and “a discharge . . . in
violation of a permit.” In doing so, the district court
specifically stated that applying both specific offense
characteristics did “not constitute double counting.”
The application notes to each enhancement authorize
downward or upward departures based on several factors. For
§ 2Q1.3(b)(1)(B), applicable if the offense involved a
discharge of a pollutant, application note 4 contemplates an
upward or downward departure based on “the harm resulting
from the . . . discharge, the quantity and nature of the
substance or pollutant, the duration of the offense and the risk
associated with the violation . . . .” U.S.S.G. § 2Q1.3,
comment. (n.4). For § 2Q1.3(b)(4), applicable if the offense
involved a discharge without a permit or in violation of a

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No. 02-1031 United States v. Kuhn 13
4The government argues that the district court erred in stating that “a
single discharge occurred,” stating that trial testimony confirm ed that
sludge was discharged on two separate occasions, although the
government does not cite any trial testimony to this effect. However,
whether the trial testimony reflects this fact is not dispositive on this issue.
permit, application note 7 contemplates an upward or
downward departure based on “the nature and quantity of the
substance involved and the risk associated with the offense
. . . .” U.S.S.G. § 2Q1.3, comment. (n.7). The district court
granted Kuhn two two-level guided downward departures
pursuant to these two application notes, noting that the
environmental harm did not seem to be very great. The
government does not challenge these two guided departures.
The district court then gave as one reason for its additional
unguided four-level downward departure, the application of
both these specific offense characteristics, stating that “[a]ll
discharges or emissions of a pollutant, in the context of a
violation of the applicable statutory section in this case,
necessarily must be accomplished in violation of or absent a
permit. Where a single discharge occurred, the scoring of
both these factors puts undue weight on these offense
characteristics in this case.”4
The government first argues that the district court failed to
give notice that it intended to depart downward for this
reason. However, the defendant moved for a downward
departure on this basis and objected to the PSR on this basis;
thus, the government was sufficiently on notice that this issue
would be addressed at the sentencing hearing. See Fed. R.
Crim. P. 32.
The government also argues that the court had already
determined that applying both offense characteristics did not
constitute double-counting and had already granted Kuhn a
two-level downward adjustment for each of subsections
(b)(1)(B) and (b)(4), and it contends that this more than
14 United States v. Kuhn No. 02-1031
5On bases not relevant here, this judgment was vacated by the United
States Supreme Court, Rapanos v. United States, 533 U.S. 913 (200 1),
and remanded to this court. W e in turn remanded the case to the district
court, United States v. Rapanos, 16 Fed. Appx. 345, 2001 WL 868006
(6th Cir. July 13, 2001). The district court set aside the defendant’s
conviction and d ismissed the case . United States v. Rapanos, 190 F.
Supp. 2d 101 1 (E.D. M ich. 20 02). On appe al, we reversed. United States
v. Rapanos, 339 F.3d 44 7 (6th Cir. 2003).
accounted for the frequency of the discharges and the nature
of the harm posed by Kuhn’s offenses. We agree.
A district court abuses its discretion when it departs based
on a factor already considered by the Commission in the
guidelines. Koon, 518 U.S. at 111. The district court noted
that the offense-level characteristics accounted for the fact
that Kuhn’s offense was not ongoing or repetitive, yet went
on to say that it was “persuaded that the sentence ought to be
fashioned around the fact that the discharge in this case
resulted from essentially a single incident that occurred over
a day or two . . . .” But as we indicated in United States v.
Rapanos, 235 F.3d 256 (6th Cir. 2000),5 quoting § 5K2.0,
“[D]issatisfaction with the available sentencing range or a
preference for a different sentence than that authorized by the
guidelines is not an appropriate basis for a sentence outside
the applicable guideline range.” Id. at 260. In Rapanos, we
found that the district court abused its discretion when it
granted two additional one-level downward departures after
granting two two-level downward departures pursuant to
application notes 4 and 7. Ibid. We noted that although the
guided departures were authorized by the facts found by the
district court, the facts found did not authorize the additional
unguided departures, because “[a] district court abuses its
discretion when it takes into account a factor already
considered by the Commission in the guidelines.” Id. at 259-
61.
In this case, the guidelines take into account the factors that
concerned the district court. Section 2Q1.3(b)(1)(B)

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No. 02-1031 United States v. Kuhn 15
contemplates its application in the event of “a discharge,”
meaning a single discharge as does section 2Q1.3(b)(4). The
district court also was able to address its concerns by granting
the two guided departures and by declining to apply a six-
level enhancement applicable to discharges that were
“ongoing, continuous, or repetitive.” U.S.S.G.
§ 2Q1.3(b)(1)(A). The sentencing guidelines more than
adequately take into account the frequency of the discharges
and the threat of environmental harm posed by Kuhn’s
crimes. The district court’s comment that it had
“considerable thoughts and doubt about whether the sentence,
a custodial sentence, of 21 months to 27 months serves the
ends of justice in this case,” indicates a “dissatisfaction with
the available sentencing range or a preference for a different
sentence than that authorized by the guidelines,” which we
noted in Rapanos “is not an appropriate basis for a sentence
outside the applicable guideline range.” 235 F.3d at 260
(quoting the commentary to § 5K2.0).
The district court also reasoned that the application of both
enhancements placed undue weight on the offense
characteristics because “[a]ll discharges or emissions of a
pollutant, in the context of a violation of the applicable
statutory section in this case, necessarily must be
accomplished in violation of or absent a permit.” However,
when it applied both specific offense characteristics, the
district court noted that the sentencing guidelines will contain
an application note to direct the court when it should not
apply both of two overlapping specific offense characteristics.
The court stated that while it believed one could not violate
§ 2Q1.3(b)(1)(B) without violating § 2Q1.3(b)(4), “that’s how
the sentencing guidelines are constituted.” It then stated that
“in this particular case . . . applying offense characteristics in
B1B [sic] and also in subparagraph (4) does not constitute
double counting.”
Section 2Q1.3(b)(1)(B) and section 2Q1.3(b)(4) are two
distinct offense level adjustments within an offense guideline
and are intended to be applied cumulatively. The guidelines
16 United States v. Kuhn No. 02-1031
instruct that “[t]he offense level adjustments from more than
one specific offense characteristic within an offense guideline
are cumulative (added together) unless the guideline specifies
that only the greater (or greatest) is to be used.” U.S.S.G.
§ 1B1.1, comment. (n.4); see also United States v. Perkins, 89
F.3d 303, 308 (6th Cir. 1996).
The application of both specific offense characteristics is
either double counting or it is not. The district court cannot
first apply both specific offense characteristics and then
revisit its decision when deciding whether to grant a
downward departure. If the Sentencing Commission believed
the application of both constituted double counting, it would
have added an application note, as contemplated in § 1B1.1.
Without such an application note, it seems that the Sentencing
Commission has already taken the application of both specific
offense characteristics into account when it designed the
guidelines. “A district court abuses its discretion when it
takes into account a factor already considered by the
Commission in the guidelines.” Rapanos, 235 F.3d at 259.
The district court did not provide any indication of facts that
would place Kuhn’s case outside the “heartland” of
environmental crimes involving one or two discharges. Any
concerns with the fairness of whether one would always
qualify for an enhancement pursuant to § 2Q1.3(b)(4) if one
qualified for an enhancement pursuant to § 2Q1.3(b)(1)(B)
are best addressed to Congress.
The district court abused its discretion in departing
downward on this basis.
3. Departure based on Kuhn’s motivation and purpose
The district court offered as a further reason for granting a
downward departure Kuhn’s motivation and purpose. It
stated that given his background, length of service in the area
of public waste management, and other factors such as his
community involvement and “exemplary personal record of
achievements in the community,” it found “credible the

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No. 02-1031 United States v. Kuhn 17
defendant’s professed motive that the efficient, pollution-free
operation of the Bay City Wastewater Treatment Plant was
his ultimate goal.” The court concluded that because of this
pure motive, Kuhn’s case fell outside of the “heartland” of
pollution offenses.
First, we note that the district court erred by not giving
notice to the government that it intended to depart on this
basis. Second, we are unable to find any authorization in the
guidelines for a downward departure based on a defendant’s
good motive for committing a crime. We reserve judgment
on whether some permissible ground may be found that
would incorporate this reason. In any event, the government
should have been afforded the opportunity to present its
arguments to the district court. The district court must give
the government the proper notice of any intended basis for
departure, should it choose to do so again.
4. Conclusion
Therefore, we VACATE Kuhn’s sentence and REMAND
to the district court for resentencing.

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