Fourth Circuit Demands Tougher Sentence for First-Time Offender

United States v. Hillyer, 457 F.3d 347 (4th Cir. 2006)

Jim Farrell, 3L, University of Mississippi School of Law

On August 1, 2006, the Court of Appeals for the Fourth Circuit overturned a decision by the District Court for the Eastern District of North Carolina, admonishing the court for its failure to adhere to proper sentencing guidelines. The court of appeals focused primarily on the nature of the violations by the defendant, Michael Eugene Hillyer, and disagreed with the lower court’s reliance on Hillyer’s unblemished history as justification for imposing a lighter sentence.

Background
In March 1998, the North Carolina Department of Transportation (DOT) received a permit from the U.S. Army Corps of Engineers (Corps), authorizing construction of the Virginia Dare Memorial Bridge. One month later, DOT awarded a $100 million contract to Balfour Beatty Construction, designating Balfour as the official construction company for the project and requiring its compliance with the Corps’ permit restrictions. The original permit, issued under the Rivers and Harbors Act of 1899 and the Clean Water Act, “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 modification.”1 In a subsequent modification request submitted by Balfour, the Corps also authorized construction of a temporary bridge; however, the Corps explicitly prohibited “prop washing or jetting, techniques used to dredge and displace material from the bottom of a water course.”2

Balfour began construction of the bridge in 1998. Two years later, the company had exceeded budget predictions, received an “abysmal safety record,”3 and fallen far behind schedule. Recognizing the perilous state of its project, Balfour hired Hillyer as project manager. In addition to completing construction of the bridge on schedule, Hillyer reduced costs and won an award for “the safest project on the East Coast.”4 Unfortunately, the end of construction marked the beginning of a series of charges of permit violations.

Hillyer’s Permit Violations
The Corps discovered Hillyer’s first permit violation one day before completion of construction. Having learned from DOT that Hillyer had ordered his employees to dump fill material from the project into wetlands at a nearby marina site, a Corps representative confronted Hillyer. After the Corps representative explained that the dumping constituted a violation of the permit and demanded that Hillyer cease the illegal activity, Hillyer “responded with profanity and essentially told the [Corps representative] that . . . he would do what he wanted.”5

Soon after the bridge’s opening, the Corps confronted Hillyer again - this time for a different permit violation. Balfour had ordered the prompt removal of the temporary bridge, because it needed the trestle transported and reassembled at another bridge project. Hillyer initially tried using a crane to extract the trestle’s pilings, but sediment that had collected around the pilings prevented the crane from getting close enough to do the job. To remove the sediment, Hillyer first ordered his employees to use a clam bucket. When DOT informed Hillyer that his activity constituted dredging in violation of the permit, Hillyer resorted to another dredging technique, prop dredging with tugboat propellers. DOT approached Hillyer again, explaining that prop dredging violated applicable permit restrictions. Feigning compliance, Hillyer responded by requesting that DOT seek a permit modification to authorize the activity. In the meantime, however, Hillyer began assembling his workers in the evenings, ordering them to continue prop dredging under cover of darkness. When an employee informed Hillyer that DOT was capturing the clandestine operation on video, Hillyer instructed his crews to continue working. For more than a week, tugboats operated at night and without the use of navigation lights “in an obvious attempt to conceal the unpermitted activity from DOT.”6

Hillyer’s excavation operations “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.’”7 The government eventually charged both Balfour and Hillyer with violations of the Rivers and Harbors Act of 1899 and the Clean Water Act.

A Slap on the Wrist
After pleading guilty in May 2004, Balfour received a $400,000 fine, five years’ probation, and was also required to reimburse DOT for $36,000 in mitigation costs. Hillyer pled guilty several months later, and the district court sentenced him to three years probation, 300 hours of community service, and a $10,000 fine.
On appeal, the government challenged the leniency of Hillyer’s sentence. The district court had increased Hillyer’s sentence “for ‘ongoing, continuous, and repetitive discharge and release of a pollutant,’” but made a downward adjustment based on Hillyer’s “acceptance of responsibility . . . [and the] lack of permanent environmental harm and the lack of public health risk.”8 The district court had considered that sentence “unduly harsh” and made another “downward departure under § 5K2.20 [of the U.S. Sentencing Guidelines Manual] for aberrant behavior.”9

Downward Departures Based on Aberrant Behavior
The Fourth Circuit held that the district court improperly granted Hillyer a departure under § 5K2.20 for aberrant behavior. The Fourth Circuit explained that a court can only grant such a departure if the defendant “‘committed 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.’”10 Noting that the sentencing guidelines account for a defendant’s criminal history, the Fourth Circuit further explained that “aberrant behavior must ‘mean . . . something more than merely a first offense.’”11

In this case, Hillyer failed even to meet the guideline’s threshold requirement of a “‘single criminal occurrence or single criminal transaction,’” because his conduct resulted in multiple permit violations spanning more than a week.12 Additionally, his violations required significant planning and were not of limited duration. By ordering his employees to engage in prop dredging only at night and for a period of almost ten days, Hillyer intentionally disregarded permit restrictions and designed a strategy that he hoped would avoid detection by DOT. Finally, given that the Corps had earlier reprimanded Hillyer for dumping fill material into nearby wetlands, Hillyer arguably did not have an immaculate record that would define his subsequent prop dredging operations as a “marked deviation from an otherwise law-abiding life.”13

Conclusion
The Fourth Circuit indicated a willingness to consider a defendant’s demonstrated commitment to environmental compliance; however, it refused to guarantee that adherence to previous permit restrictions would mitigate a defendant’s sentence for future permit violations.

Endnotes
1. United States v. Hillyer, 457 F.3d 347, 349 (4th Cir. 2006).
2. Id.
3. Id.
4. Id.
5. Id.
6. Id. at 350.
7. Id.
8. Id.
9. Id. at 351.
10. Id. at 352 (quoting U.S. Sentencing Guidelines Manual § 5K2.20(b) (2004)).
11. Id.
12. Id.
13. Id.