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United States v. Powers

United States Court of Appeals, District of Columbia Circuit

March 23, 2018

United States of America, Appellee
v.
James Powers, Appellant

          Argued January 22, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:16-cr-00076-1)

          Robert S. Becker, appointed by the court, argued the cause and filed the briefs for appellant.

          Rachel 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.

          OPINION

          Srinivasan, Circuit Judge

         James 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.

         We do 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.

         I.

         For 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.

         Although 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 property.

         Once 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.

         Powers 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.

         At 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 ...


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