UNITEDSTATES DISTRICT COURT

NORTHERNDISTRICT OF TEXAS

DALLASDIVISION

UNITEDSTATES OF AMERICA, )      CRIMINAL ACTIONNO.

                                           )

              Plaintiff,                )      3:06-CR-109-G

                                           )

v.                                         )

                                           )

MELVINEUGENE XXX, II, )

                                           )

              Defendant.                    )

)

OBJECTIONSTO THE ADDENDUM PRESENTENCE REPORT

         Defendant,Melvin Eugene XXX, II, reiterates his Objections to the Presentence Report (the“Objections”) as if fully set out herein and made a part hereof.  In addition, Mr. XXX sets forth thefollowing specific objections to the Addendum to the Presentence Report (the“Addendum”).

1.Introduction. Despite being released three days late, the Addendum certainly does not,as it claims, “fairly state” the Objections to the Presentence Report.  In fact, the Addendum deletes case lawthat is on point as well as commentary from the Sentencing Guidelines.  More importantly, in some areas itcompletely ignores Mr. XXX’s arguments. Consequently, Mr. XXX respectfully requests the Court to review hisObjections in full.

2.Response to I. The only thing that the Addendum addresses is theargument that Mr. XXX acknowledged was foreclosed by Fifth Circuit precedentand which he explained he was raising simply because there was a split in thecircuits and he wanted to preserve the argument for higher court review. See Objections at 2 n. 1 (“Mr. XXX also submits thatactual environmental contamination is a prerequisite to the application ofU.S.S.G. § 2Q1.2(b)(1). SeeUnited States v. Ferrin, 994 F.2d 658,662-64 (9th Cir. 1993). Nevertheless, for the purposes of this Court, Mr. XXX recognizes thathis argument is foreclosed by United States v. Goldfaden, 959 F.2d 1324, 1331 (5th Cir. 1992).”).

         TheAddendum does not address:

•Mr. XXX’s objection to PSR’s statement “[t]he asbestos abatement project lastedover the course of three weekenddays....” when the testimony at trial established that the asbestos tile whichthe government alleged was illegally removed took place over two weekends.

•Mr.XXX’s submission that, for the reasons set forth in his Objections, a fourlevel enhancement, rather than a six level enhancement, is more appropriateunder U.S.S.G. § 2Q1.2(b)(1).

•Mr. XXX’s submission that Application Note 5 to U.S.S.G. § 2Q1.2(b)(1) shouldbe applied and, therefore, if the Court were to decide to apply U.S.S.G. §2Q1.2(b)(1)(A), it should grant a two level downward departure.  Likewise, the PSR does not acknowledgethe discussion in United States v. Pearson,274 F.3d 1225, 1229 (9th Cir. 2001) regarding such a departure. Mr. XXX does note that in theGovernment’s Response to Defendant’s Objections to the Presentence Report, thegovernment agrees that, in the event the Court applies U.S.S.G. § 2Q1.2(b)(1)(A)rather than U.S.S.G. § 2Q1.2(b)(1)(B), a downward departure pursuant toApplication Note 5 is appropriate. See Government’sResponse to Defendant’s Objections to the Presentence Report at 1.

3.Response to II. In theoriginal PSR, the Probation Department told this Court that “[t]rial testimony[made clear that the estimated 12 workers of defendant were considerably morelikely...to develop asbestos related disease....” See PSR at 8. In his Objections, Mr. XXX invited the Probation Departmentto locate such testimony. TheAddendum ignores this invitation.

         TheAddendum also fails to contain the citations to cases where an enhancementunder much more egregious conduct was notenhanced under U.S.S.G. §2Q1.2(b)(2). SeeObjections at 3-4, citing, United States v. Kung-Shou Ho, 311 F.3d 589, 593-94 (5th Cir. 2002); UnitedStates v. Liebman, 40 F.3d 544, 546-47 (2dCir. 1994); United States v. Weintraub, 96 F.Supp. 2d 135, 136 (D. Con.. 2000). Likewise, the Addendum does not discuss the Court’s obligationunder 18 U.S.C. 3553 (a)(6) to avoid unwarranted sentence disparities viz-a-vizthe non-application of U.S.S.G. §2Q1.2(b)(1) in Kung-Shou Ho, Liebman, or Weintraub. Instead, the Addendumcites to United States v. Thorn,317 F.3d 107 (2d Cir. 2003).[1] Thorn involved illegal asbestos abatement in 130commercial projects and over1,000 residential projects over a nineyear period involving approximately 700workers. Id. at112-13. Thorn is hardly an apt comparison to this case.  In point of fact, the best comparisonto this case is the Texas case of Kung-Shou Ho were the enhancement was not applied.

         Finally,the Addendum completely ignores Application Note 6 to U.S.S.G.  § 2Q1.2(b)(2) and the discussion ofthat Application Note in Mr. XXX’s Objections.

       4. Responseto III. In his Objections, Mr. XXX cited UnitedStates v. Rubenstein, 403 F.3d 93, 100-01 (2d Cir. 2005; UnitedStates v. Chau, 293 F.3d 96, 102 (3rd Cir.2002) and Weintraub, as supportfor his argument that a U.S.S.G. § 2Q1.2(b)(4) enhancement was notappropriate. The thrust of theAddendum’s and government’s response is that the State of Texas did require a permit for the disposal of asbestoswaste and Mr. XXX did not obtain one when one was required.  The Addendum cites UnitedStates v. Cooper, 173 F.3d 1192 (9th Cir.1999) and United States v. Ortiz,427 F.3d 1278 (10th Cir. 2005) in support of the § 2Q1.2(b)(4)enhancement. Nevertheless, asexplained below, these cases involved the Clean Water Act which does require federal permits. Here, no federal permitwas required.

            Notably,neither the Addendum nor the government cite to the relevant and extensivediscussion of this issue in Weintraub,96 F.Supp. 2d at 136-40. There,“the Government contend[ed] that the U.S.S.G. § 2Q1.2(b)(4) enhancement may bebased on the violation of the state regulations which require: ‘Disposal ofasbestos waste shall be at an authorized asbestos disposal facility. If theauthorized asbestos disposal site is located within Connecticut, writtenauthorization for disposal shall be obtained from the Department ofEnvironmental Protection, Bureau of Waste Management.’” Id. at 136. On the otherhand, the “Defendant read[] the enhancement as only applying U.S.S.G. § 2Q1.2(b)(4) if there is a permitsystem or requirement imposed under federal law.” Id. In short, the Weintraub court defined the issue before it as follows:  “Even assuming arguendo that theConnecticut authorization requirement constitutes a permit requirement, theCourt must determine whether this state regulatory requirement can be the basisfor this Sentencing Guideline enhancement.” Id. The Court ruled as follows:

Incontrast to the federal regulatory scheme for asbestos handling under the CleanAir Act's regulations, several other environmental statutes contain an expressfederal permit requirement, see e.g., 43 U.S.C. § 1350(c) (creating criminalliability for violating a permit issued under chapter governing submerged landsnear continental shelf); 7 U.S.C.§ 136j (making it unlawful to exceed the "experimental use permit"issued by EPA for a pesticide); or delegate the permitting function to thestates, see 33 U.S.C. § 1319(c)(1) & (2) (prohibiting negligent and knowingviolation of any permit condition or limitation in an effluent discharge ofpollutant permit issued under Section 1342 which creates permitting schemeunder EPA or the states if approved by EPA). Therefore, absent any federalrequirement of any permit related to asbestos handling under the Clean Air Act,expressly or by delegation to state regulatory schemes, Weintraub's offense ofconviction is unrelated to his non-compliance with the state prior authorization requirement and theCourt concludes that Section 2Q1.2(b)(4) is therefore inapplicable toWeintraub's offense.

Id. at 138.[2]

Likewise,in Rubenstein, the sentencing courtapplied the enhancement based upon “the defendants' violation of two stateregulations requiring a transporter of asbestos to have a permit andto inform landfill operators of his intent to dispose of asbestos.” Rubenstein, 403 F.3d at 100. Nevertheless, the Court of Appeals reversed and held that itwas error to base the U.S.S.G. § 2Q1.2(b)(4) on a State of New York permit requirement. Id.[3]  This answers the Addendum’s andgovernment’s contention that this Court should apply the enhancement based upona State of Texas permitrequirement.[4]

Respectfullysubmitted,

                                                      F.Clinton Broden

                                                      Tx.Bar 24001495

                                                      Broden& Mickelsen

                                                      2707Hibernia

                                                      Dallas,Texas 75204

                                                      214-720-9552

                                                      214-720-9594(facsimile)

                                                      DavidFinn

                                                      Milner& Finn

                                                      2828N. Harwood Street, Suite 1950

                                                      Dallas,TX 75201

                                                      (214)651-1121

                                                      (214)953-1366 (facsimile)

                                                      Attorneyfor Defendant

                                                      MelvinEugene XXX, II
CERTIFICATE OF SERVICE

            I,F. Clinton Broden, certify that on January 22, 2007, I caused the foregoingdocument to be served by first-class mail postage prepaid on:

PhillipUmphres

AssistantUnited States Attorney

1100Commerce Street, Third Floor

Dallas,Texas 75242

CaseyKimble

UnitedStates Probation Department

1100Commerce Street

Dallas,Texas 75242

                                                      _________________________________

                                                      F.Clinton Broden

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[1] Thegovernment cites Pearson in support ofits response to this objection (see Government’sResponse to Defendant’s Objections to the Presentence Report at 1-2) without noting that the Court in Pearson also granted a five leveldownward departure under Application Note 6 to ameliorate the effects of thisdraconian application.

[2] 33U.S.C. § 1319 distinguished in Weintraubis the Clean Air Act that was the focus of the inapposite Cooper and Ortizcases cited in the Addendum.

[3] Cf.  Chau,293 F.3d at 102 (U.S.S.G. § 2Q1.2(b)(4) could not be based upon the failure toobtain a City of Philadelphiapermit.)

[4] Attrial, Wayne Harry, who works in the permit section of the Texas Commission onEnvironmental Quality, explained that the State of Texas licenses waste disposal sites in the state for solidwaste and that an EPA license involves “other items” (i.e. not solid asbestos waste). See TrialTestimony at 289-90.