United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 30, 2005
Charles R. Fulbruge III
Clerk
No. 04-11060
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES DWAYNE WILSON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:03-CR-397-1-G
--------------------
Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
James Dwayne Wilson appeals his jury conviction and sentence
for discharging a pollutant without a permit and aiding and
abetting. See 33 U.S.C. §§ 1319(c)(2)(A), 1311(a); 18 U.S.C.
§ 2(a). Wilson argues first that the district court erred in
admitting a Government exhibit and expert testimony from Jason
Bowen, a witness not qualified as an expert. Bowen, a civil
environmental engineer, used the Hazardous Categorization System,
commonly referred to as the Haz-Cat, to categorize the substances
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-11060
-2-
that Wilson was convicted of discharging. Bowen testified that
the discharged substance was a pollutant. While not a chemist,
Bowen’s testimony demonstrated that he was well-versed in the
operation and methodology of the Haz-Cat. In light of the
uncontested testimony at trial regarding the contents of the
drums from which the pollutant was discharged, Wilson has not
shown that Bowen’s testimony was unreliable or irrelevant. See
Vogler v. Blackmore, 352 F.3d 150, 154 (5th Cir. 2003). Any
error in admitting Bowen’s testimony was harmless, given that
others testified that the barrels (1) contained garbage, (2) were
open when loaded onto the truck headed for the dump site, and (3)
were dumped into Greasy Creek. See 33 U.S.C. § 1362(6).
The offense of conviction required proof that Wilson
“knowingly” discharged a pollutant (or caused one to be
discharged) without a permit. 33 U.S.C. § 1311, 1319(c)(2)(A);
18 U.S.C. § 2(a). Wilson argues that the “deliberate ignorance”
jury instruction was error because there was insufficient
evidence to indicate that he was aware of a high probability of
illegal conduct. He also contends that there was insufficient
evidence to support the guilty knowledge element of his
conviction. Trial testimony established that Wilson hired his
cousin, Tony Moreland, to dispose of the drums containing the
pollutant. Moreland testified that Wilson asked him what he was
going to do with the barrels, but before he could answer, Wilson
said, “I don’t want to know.” Environmental Protection Agency
No. 04-11060
-3-
Special Agent Green testified that Wilson admitted that he did
not know where Moreland was taking the drums but “indicated that
he had knowledge they were going to be disposed of illegally or
dumped somewhere.” Given Wilson’s defense of lack of guilty
knowledge, the facts adduced at trial fall squarely within
“deliberate ignorance” territory. When viewed in the light most
favorable to the Government, the evidence clearly raised the
inference that Wilson was aware of a high probability of the
criminal activity to be carried out by his coconspirator and that
he purposely contrived to avoid learning of the illegal conduct.
The district court did not abuse its discretion in giving the
deliberate ignorance instruction to the jury. See United States
v. Newell, 315 F.3d 510, 528 (5th Cir. 2002). Furthermore, the
evidence was sufficient to support the jury’s finding that Wilson
was criminally responsible for Moreland’s actions, having
willfully associated himself with the criminal venture. See 18
U.S.C. § 2(a); United States v. Vasquez 953 F.2d 176, 183 (5th
Cir. 1992).
Wilson’s final argument is that the district court erred in
using relevant conduct to calculate his sentence under the
guidelines. He challenges, inter alia, the guideline used to
calculate his base offense level because it applied to offenses
involving “hazardous” substances rather than mere “pollutants.”
See U.S.S.G. §§ 2Q1.2, 2Q1.3; United States v. Goldfaden, 959
F.2d 1324, 1329 (5th Cir. 1992). The Government concedes that
No. 04-11060
-4-
Wilson’s argument has merit because the district court based its
selection of the applicable guideline section on facts outside of
the allegations contained in the superseding indictment. Under
the applicable harmless error analysis, the Government cannot
show “beyond a reasonable doubt that the Sixth Amendment Booker
error did not affect the sentence that the defendant received.”
See United States v. Pineiro, 410 F.3d 282, 284 & n.4, 286-87
(5th Cir. 2005). Accordingly, Wilson’s sentence is VACATED, and
this case is REMANDED for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR
RESENTENCING.