United States v. Rubenstein, Docket No. 03-1721 (2d Cir. March 31, 2005) (Cardamone, Jacobs, and Cabranes) (Op. by Jacobs):
Introduction: In this case, the Court rejects a legal challenge to the defendants’ conviction for improperly removing asbestos under the Clean Air Act, but vacates their sentences because of an improperly imposed 4-level enhancement. In so doing, the Court “express[ed] no opinion as to whether an incorrectly calculated Guidelines sentence could nonetheless be reasonable” and thus affirmed on appeal regardless of the error, Opinion at 13, but chose to vacate the pre-Booker sentence anyway (rather than engage in Booker‘s reasonableness analysis) “because we think that the influence of this error is likely to be so pronounced that it could cause resentencing after remand to be unreasonable.” Op. at 19.
In a concurrence, Judge Cardamone tantalizingly opines that “it is entirely possible that a correctly calculated Guidelines sentence might nonetheless be found unreasaonble upon consideration of other factors” listed under Section 3553(a), concurring Op. at 2 (emphasis added). He further suggests that in future cases where sentencing occurred after Booker, vacatur will not be automatic even where the Guidelines range was miscalculated because “[t]hose sentences will be reviewed for reasonableness, and  an incorrectly calculated Guidelines sentence might nonetheless be reasonable . . . .” Id.
Discussion: The defendants — a father and son — are Hasidic Jews who “live in an insular religious community of Hasidic Jews.” Op. at 3. They owned and operated a building in Brooklyn. After a third party signed a 49 year, $50 million lease for the building, the defendants began removing asbestos located throughout the building. They simply asked a few men who worked for them to do the removal and did not tell the workers that the material was asbestos. The workers removed the asbetos without any safety equipment and then improperly disposed of the asbestos.
At the defendants’ trial for violating the Clean Air Act for improper removal of asbestos, 42 U.S.C. § 7413(c)(1), defense counsel asked the court to charge the jury that the defendants can be found guilty only if they were aware of the existence of regulations governing asbestos removal. The trial court rejected this request, since the Second Circuit has held that “the government need only prove that a defendant knew that the material being removed was asbestos” to sustain a conviction under this section (and need not prove that a defendant was aware of laws and regulations governing asbestos removal). Op. at 10 (discussing United States v. Weintraub, 273 F.3d 139, 151 (2d Cir. 2001)). The defendants nonetheless argued below and on appeal that because “they belong to an insular religious community of Hasidic Jews in which asbestos is not a subject of interest,” there should be an exception to Weintraub for them. Op. at 10.
The Court quickly rejected this argument, holding that Weintraub‘s “presuppos[ition] [of] knowledge that asbestos is a regulated material” is not “a rebuttal presumption.” Op. at 10-11. One violates § 7413(c)(1) if s/he removes asbestos improperly and knows that the material is asbestos, regardless of whether s/he is aware of the illegality of his or her own conduct. Alternatively, the Court looked to the facts of the case and ruled that even if some sort of good-faith defense were available, these particular defendants were not entitled to a charge to this effect because the evidence adduced at trial clearly showed that the Rubensteins were well aware that asbestos was a closely regulated substance. Op. at 11.
The Court vacated the defendants’ sentences, however, after concluding that the district court improperly imposed a 4-level enhancement under § 2Q1.2(b)(4) (applicable if “the offense involved transportation, treatment, storage, or disposal” of a hazardous substance “without a permit or in violation of a permit”). The Court ruled that the enhancement was improper because the “offense” at issue — the Clean Air Act — did not require the defendants to obtain a permit for the disposal of asbestos. Op. at 18. It was irrelevant that New York State regulations required a permit for the transportation and disposal of asbestos, since the enhancement is triggered only where the “‘offense involve[d]’ activity in violation of a permit.” Id.
What is more interesting than this substantive holding is the Court’s discussion of why it decided to vacate the sentences rather than simply evaluate them for reasonableness, in accordance with Booker. (Of course, since the sentencing predated Booker, a remand would be required pursuant to Crosby in any event, but that’s another story). Indeed, the Court specifically “express[ed] no opinion as to whether an incorrectly calculated Guidelines sentence could nonetheless be reasonable,” which determination would obviate the need for vacatur and remand. Op. at 13. The Court decided to vacate the sentences in this case because it concluded that “the influence of [the erroneous imposition of the 4-level enhancement] is likely to be so pronounced that it could cause resentencing after remand to be unreasonable.” Op. 19.
In a concurrence, Judge Cardamone criticized the majority for suggesting (at one point) that vacatur is somehow “necessary” — rather than merely discretionary — when the Guidelines range is miscalculated. Post-Booker, Judge Cardamone pointed out, a correctly calculated Guidelines range “is but one factor to be considered under 18 U.S.C. § 3553 in reviewing [the] reasonableness” of a sentence on appeal. Concurrence at 1. Thus, “it is entirely possible that a correctly calculated Guidelines sentence might nonetheless be found unreasonable upon consideration of other factors” under § 3553(a). Id. at 2. Conversely, “[b]y the same token, an incorrectly calculated Guidelines sentence might nonetheless be reasonable.” Id. Judge Cardamone thus concluded that because sentences imposed after Booker “will be reviewed for reasonableness, and because an incorrectly calculated Guidelines sentence might nonetheless be reasonable, vacatur of a sentence based on Guidelines errors would not automatically be warranted.” Id.
Comment: This case discusses, but does not settle, a critical question left open in the wake of Booker (and Crosby). That question is either (1) whether a sentence imposed upon an incorrectly calculated Guidelines range is necessarily unreasonable, or (conversely) (2) whether a sentence imposed upon a correctly calculated Guidelines range is necessarily reasonable. The majority opinion does not answer the question, but suggests that reasonableness review on appeal is not entirely dependent upon whether the Guidelines range was correctly calculated in the first place. Judge Cardamone’s concurrence does indeed answer the question: A correctly calculated Guidelines range is but one factor to consider under reasonableness analysis, and thus a sentence could be upheld as reasonableness even where the Guidelines range was incorrectly calculated (and, conversely, a sentence could be vacated as unreasonable even where the Guidelines range was correctly calculated). The concurrence, however, is of course not binding on future panels.