United States v. Ivan L. Due ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-4172
___________
United States of America, *
*
Appellee, *
*
Appeal from the United States
v. *
District Court for the
*
Western District of Arkansas
Ivan L. Due, *
* {UNPUBLISHED}
Appellant. *
___________
Submitted: February 3,
1998
Filed: March 12,
1998
___________
Before McMILLIAN, HANSEN, and MURPHY, Circuit Judges.
___________
PER CURIAM.
Ivan L. Due appeals from the final judgment entered
in the District Court1 for the Western District of
Arkansas after he pleaded guilty to failing to report the
release of hazardous substances into the environment, in
violation of 42 U.S.C. § 9603(b). The district court
1
The Honorable H. Franklin Waters, Chief Judge, United States District Court
for the Western District of Arkansas.
sentenced Due to 18 months imprisonment and one year
supervised release, and imposed a $3,000 fine. Counsel
has filed a brief pursuant to Anders v.
-2-
California, 386 U.S. 738 (1967). For reversal, Due
raises two challenges to his sentence. For the reasons
discussed below, we affirm the judgment of the district
court.
Due first argues that the district court erred in
enhancing his offense level for obstructing justice. The
enhancement applies when a defendant directly or
indirectly threatens, intimidates, or otherwise
unlawfully influences a witness, or attempts to do so.
See U.S.S.G. § 3C1.1, comment. (n.3(a)) (1997). A
defendant is accountable not only for his or her own
conduct, but also for conduct that he or she aided or
abetted, counseled, commanded, induced, procured, or
willfully caused. See id., comment. (n.8) (1997).
The record shows that Due was present at an office
meeting during which Walter Schluterman, vice president
of Custom Quality Gel-Coat, Inc. (CQ), told CQ employees
about the need for Schluterman and Due to distance
themselves from the hazardous waste disposal at CQ that
was currently being investigated by authorities;
Schluterman also discussed the possibility that CQ
employees could lose their jobs depending on the outcome
of the investigation. The record further shows that,
during two series of interviews, CQ employees provided
investigators with inconsistent accounts of what the
employees knew about the disposal. Given Due&s presence
at the meeting with CQ employees--combined with his
status as a part owner, officer, and supervisor, and his
failure to contradict Schluterman--we cannot say that the
district court erred in concluding Due unlawfully
attempted to influence witnesses, at least indirectly.
See United States v. Sykes, 4 F.3d 697, 699 (8th Cir.
1993) (per curiam) (standard of review).
-3-
Second, Due argues that the district court erred in
enhancing his offense level for his aggravating role in
the offense. Due was not only part owner and vice
president of CQ, but he was also a supervisor of the CQ
employees who participated in burying the waste, and CQ
employees indicated that Due and Schluterman had both
planned and participated in the illegal burial. Under
these circumstances, the district court did not
-4-
clearly err in assessing the enhancement. See United
States v. Flores, 73 F.3d 826, 835 (8th Cir.) (standard
of review), cert. denied, 116 S. Ct. 2568 (1996);
U.S.S.G. § 3B1.1(c) (1997) (adjustment is appropriate
where defendant organized, supervised, led, or managed
criminal activity that involved fewer than five
participants and was not otherwise extensive).
We have reviewed the record in accordance with Penson
v. Ohio, 488 U.S. 75, 80 (1988), for any nonfrivolous
issues for appeal, and have found none. Accordingly, we
affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-5-