United States Court of Appeals, District of Columbia Circuit
January 22, 2018
from the United States District Court for the District of
Columbia (No. 1:16-cr-00076-1)
S. Becker, appointed by the court, argued the cause and filed
the briefs for appellant.
Heron, Attorney, U.S. Department of Justice, argued the cause
for appellee. With her on the brief were Jeffrey H. Wood,
Acting Assistant Attorney General, Eric Grant, Deputy
Assistant Attorney General, and Jennifer Scheller Neumann and
John Smeltzer, Attorneys. Elizabeth Trosman and James A.
Ewing, Assistant U.S. Attorneys, entered appearances.
Before: Tatel, Srinivasan, and Pillard, Circuit Judges.
Srinivasan, Circuit Judge
Powers pleaded guilty to one count of failing to remove
asbestos-containing material prior to renovation, in
violation of 42 U.S.C. § 7413(c)(1). On appeal, Powers
raises procedural and substantive challenges to the sentence
imposed by the district court. He also contends that he
received ineffective assistance of counsel at sentencing.
not reach the merits of Powers's claims. With regard to
his procedural and substantive challenges to his sentence, he
waived his ability to appeal on those grounds as part of his
plea agreement. With regard to his claim of ineffective
assistance of counsel, he forfeited the claim for purposes of
this appeal by failing to assert it until his reply brief. We
therefore affirm the judgment of the district court.
several months, Powers led efforts to convert a historic
property in Southeast Washington, D.C. into condominiums.
During construction, an environmental consultant visited the
renovation site and informed Powers that the building's
pipe insulation, floor tiles, and wall board contained
asbestos. Under the Clean Air Act and regulations promulgated
thereunder, the asbestos needed to be removed before the
renovation could proceed. See 42 U.S.C. §
7412(b)(1); 40 C.F.R. § 61.145.
Powers assured D.C. officials that he would halt construction
and abate the asbestos, he instead directed the construction
workers to continue the project. The workers removed
asbestos-containing materials without wearing adequate
protective gear. Also, instead of disposing of the asbestos
material in a safe place as required by law, the workers left
the material on the ground and in open dumpsters outside the
the D.C. Department of the Environment realized that Powers
had continued renovations without abating the asbestos, the
Department issued a cease and desist order. A grand jury then
indicted Powers for violating the Clean Air Act and
committing wire fraud.
pleaded guilty to one count of failing to remove
asbestos-containing material from the property before
renovating it, in violation of 42 U.S.C. § 7413(c)(1).
As part of the plea agreement, the parties agreed to a base
offense level of eight under the United States Sentencing
Guidelines, and up to a three-level reduction for
Powers's acceptance of responsibility. The parties
reserved their ability to present argument to the district
court on the applicability of two sentencing enhancements:
one for an ongoing discharge of a hazardous substance,
U.S.S.G. § 2Q1.2(b)(1)(A); the other for an offense
resulting in a substantial likelihood of death or serious
bodily injury, U.S.S.G. § 2Q1.2(b)(2). Powers agreed
that, if the enhancements applied, his estimated Sentencing
Guidelines range would be thirty-three to forty-one months
and a sentence within that range would be reasonable. He also
agreed to waive his right to appeal any sentence within or
below the Guidelines range, unless he claimed he received
ineffective assistance of counsel.
sentencing, Powers urged the district court to refrain from
applying the two sentencing enhancements, to vary downward
from the Guidelines range, and to impose a sentence only of
probation. The court found that the two enhancements applied,
but concluded that the resulting sentencing range of
twenty-four to thirty months was greater than warranted. The
court therefore sentenced Powers to twenty ...