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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 91-1781
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HERMAN GOLDFADEN,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________________________________
(April 22, 1992)
Before GOLDBERG, DUHÉ, and BARKSDALE, Circuit Judges.
DUHÉ, Circuit Judge:
Appellant Herman Goldfaden appeals his sentence of three
years' imprisonment for violating the Clean Water Act, 33 U.S.C.
§§ 1251-1387.
Background
In September 1990, Goldfaden and his company, Control Sewer
and Pipe Cleaning Company, Inc., d/b/a Control Disposal Company,
were indicted for violating the Dallas City Code, and,
consequently, the Clean Water Act, by discharging hazardous and
industrial waste into the Dallas sewer system without a permit.
In October Goldfaden pleaded guilty to one count of a superseding
indictment, discharge of industrial waste, a violation of Dallas
Code Ordinance 49 and 33 U.S.C. § 1319(c)(2)(A). In return, the

Government agreed to dismiss the remaining counts of the
indictment and to make no recommendation as to Goldfaden's
sentence. The parties also agreed on a statement of facts
describing the details of Appellant's offense.
The district court accepted Appellant's plea and sentenced
him as recommended by the probation office in Appellant's
presentence report, although both the Government and Appellant
objected to the report's calculations. The district court began
with guideline section 2Q1.2(a), mishandling of hazardous and
toxic substances, which provides for a base offense level of
eight. U.S.S.G. § 2Q1.2(a) (1991). For the specific offense
characteristic of repetitive discharges (section 2Q1.2(b)(1)(A))
and disposal without a permit (section 2Q1.2(b)(4)), the district
court added ten levels (six and four respectively). The court
also added two levels based on Appellant's leadership role in the
offense (section 3B1.1(c)) and two levels for obstruction of
justice (section 3C1.1). The court did not deduct for acceptance
of responsibility, so the total offense level was twenty-two.
Because Appellant had no prior criminal convictions, this offense
level translated into an imprisonment range of forty-one to
fifty-one months. The statutory maximum term of imprisonment,
however, is three years. 18 U.S.C. § 1319. Appellant thus
received a sentence of thirty-six months.
Appellant contests
his sentence on several grounds. First he argues that by
recommending guideline levels, the Government breached the plea
agreement. Second, he asserts that the district court relied on
2

the wrong guideline to determine his base offense level. Third,
Appellant contends that the district court erred in enhancing his
sentence six levels for repetitive discharges. Fourth, he argues
that the four level enhancement for disposal without a permit
violates the intent of the guidelines. Fifth, he challenges the
enhancement for obstruction of justice. Sixth, he contests the
district court's refusal to deduct two levels for acceptance of
responsibility. Finally, Appellant challenges the sentence
because it varies from those of defendants convicted of similar
crimes.
Analysis
A. Plea Agreement
After Goldfaden pleaded guilty, the Government submitted
four memoranda to the probation office advocating the use of
different guideline sections to calculate his sentence.
Appellant argues, for the first time on appeal, that these
suggestions violated the Government's promise to "make no
recommendation" as to his sentence. Because Appellant failed to
object to the Government's action in the district court, we
review his claim for plain error. Fed. R. Crim. P. 52(b); United
States v. Vontsteen, 950 F.2d 1086, 1089 (5th Cir. 1992) (en
banc). Plain error, as the Vontsteen court explained
"is error which, when examined in the context
of the entire case, is so obvious and
substantial that failure to notice and
correct it would affect the fairness,
integrity or public reputation of judicial
proceedings . . . . Alternatively stated,
when a new factual or legal issue is stated
for the first time on appeal, plain error
3

occurs when our failure to consider the
question results in 'manifest injustice.'"
Id. at 1092 (quoting United States v. Lopez, 923 F.2d 47, 50 (5th
Cir.) (citation omitted), cert. denied, 111 S. Ct. 2032 (1991)).
"Errors of constitutional dimension will be noticed more fully
under the plain error doctrine than less serious errors." Lopez,
923 F.2d at 50.
Defendants, such as Goldfaden, give up constitutional rights
in reliance on promises made by prosecutors, implicating the Due
Process Clause once the court accepts their pleas. Mabry v.
Johnson, 467 U.S. 504, 507-09 (1984) (citing Santobello v. New
York, 404 U.S. 257, 262 (1971)). The failure of the Government
to fulfill its promise, therefore, affects the fairness,
integrity, and public reputation of judicial proceedings. We
thus conclude that a prosecutor's breach of a plea agreement can
amount to plain error. We turn, then, to examine whether the
Government's action in this case violated its plea agreement with
Appellant, and, if so, whether the violation constitutes plain
error.
The Government concedes that it "took a position" regarding
the application of certain guidelines to Appellant's sentence
calculation. It also notes that it corrected misstatements of
fact in the presentence report. Both types of comments, the
Government argues, are consistent with this Court's
interpretation of "no recommendation" agreements.
We have stated:
As part of a plea agreement, the Government is free to
4

negotiate away any right it may have to recommend a
sentence. However, the Government does not have a
right to stand mute in the face of factual inaccuracies
or to withhold relevant factual information from the
court.
United States v. Block, 660 F.2d 1086, 1091-92 (5th Cir. Unit B
Nov. 1981), cert. denied, 456 U.S. 907 (1982). To the extent
that the Government corrected factual misstatements in
Appellant's PSI, its memoranda were in keeping with our
precedent. But, as the Government concedes, it did more than
point out factual inaccuracies -- it suggested a base offense
level, advocated a ten- level increase, argued for a minimum
offense level of thirteen, later advanced a higher base offense
level of twenty, and recommended an upward departure.
The Government urges us to distinguish comments that
"suggest a specific sentence" and violate "no recommendation"
agreements, from comments that "influence the severity of a
sentence," but are not considered "recommendations." The
Government further argues that its comments fall within the
latter, allegedly permissible, category. Some circuits have
adopted this analysis. See United States v. Stemm, 847 F.2d 636,
639-40 (10th Cir. 1988) (Government's description of defendant's
culpability is not a sentence recommendation); United States v.
Miller, 565 F.2d 1273, 1275 (3d Cir. 1977) (remarks regarding
defendant's cooperation are not recommendations), cert. denied,
436 U.S. 959 (1978) . But we find it unnecessary to do so
because the Government's action in this case constitutes a
recommendation.
5

In United States v. Hayes, 946 F.2d 230 (3d Cir. 1991), the
Third Circuit, which applies the distinction, held that a memo
advocating a guideline offense level indeed recommended a
specific sentence and, thus, violated a "no recommendation"
agreement similar to, but less stringent than, the one entered
into between Appellant and his prosecutor. The Government's
remarks here similarly violate its agreement. That its comments
referred to guideline levels rather than months or years does not
alter the fact that the Government suggested a term of
imprisonment for Appellant. Unlike general descriptions of a
defendant's culpability or cooperation, "suggestions" or
"positions" on the applicability of certain guidelines,
enhancements, and departures translate directly into a range of
numerical figures representing lengths of prison stay. We hold,
therefore, that the Government violated its plea agreement, and
that this violation is plain error.
We thus vacate Appellant's sentence and remand to the
district court. On remand, the court should determine whether
the appropriate remedy is specific performance of the plea
agreement or withdrawal of the plea. If specific performance is
called for, Appellant must be sentenced by a different judge.
Santobello, 404 U.S. at 263. Although this error alone requires
us to vacate Appellant's sentence, we address the other alleged
errors to guide the sentencing court on remand.1
1 Appellant failed to object in the district court to three of
the issues, the court's reliance on a co-defendant's PSI, the
enhancement for discharge without a permit, and the enhancement
6

B. Choice of Guidelines
The district court calculated Appellant's sentence using
section 2Q1.2 of the sentencing guidelines "mishandling of
hazardous or toxic substances," which provides a base offense
level of eight. U.S.S.G. § 2Q1.2 (1991). Goldfaden and the
Government suggested that section 2Q1.3, "mishandling of other
environmental pollutants," was the appropriate base guideline.
The Government now contends that the district court was
correct to rely on section 2Q1.2 because the court is permitted
to consider a defendant's relevant conduct when selecting a base
offense guideline. We disagree.
The district court's initial selection of an offense
guideline is governed by section 1B1.2 which instructs the court
to "[d]etermine the offense guideline section . . . most
applicable to the offense of conviction (i.e., the offense
conduct charged in the count of the indictment or information of
which the defendant was convicted.)" U.S.S.G. § 1B1.2(a) (1991)
(emphasis added). Contrary to the Government's assertion, the
guidelines do not suggest that relevant conduct is a factor in
the district court's determination of an offense guideline.
Rather, they state that the court should examine relevant conduct
in determining guideline range, see id. § 1B1.2(b), or in
choosing a "base offense level where the guideline specifies more
than one base offense level." Id. § 1B1.3(a)(1) (emphasis
for obstruction of justice. Our examination of these
allegations, therefore, is limited to a search for plain error.
7

added). Neither of the guidelines proposed by the parties
provides for more than one base offense level. Id. §§ 2Q1.2 &
2Q1.3; but cf., id. § 2Q1.6 (providing four base offense levels
from which to select for the offense of hazardous or injurious
devices on federal lands). The district court, thus, should have
relied solely on Appellant's offense of conviction to determine
the base offense guideline to be used in its calculations.
Appellant's offense of conviction (count seven of his
indictment) was for discharge of industrial waste in
contradiction of the Dallas City Code, a violation of 33 U.S.C. §
1319(c)(2)(A). The most applicable guideline, therefore, is not
section 2Q1.2, which pertains to disposal of hazardous or toxic
waste, but section 2Q1.3, which pertains to mishandling of "other
environmental pollutants."2
C. Enhancement for Repetitive Discharges
The district court increased Appellant's offense level for
repetitive discharges in accordance with section 2Q1.2(b)(1)(A).
That section instructs the court to add six levels "[i]f the
offense resulted in an ongoing, continuous, or repetitive
discharge, release, or emission of a hazardous or toxic substance
or pesticide into the environment." U.S.S.G. § 2Q1.2(b)(1)(A).
In support of the enhancement, the court relied on the
testimony of Agent Fred Burnside of the Environmental Protection
2 Though we find that the district court should have employed
section 2Q1.3, we discuss the enhancements in terms of section
2Q1.2 (as did the district court) for consistency. The text of
the relevant enhancement provisions of both guidelines is the
same.
8

Agency. Burnside described his own observation of one illegal
dumping (at the scene of Goldfaden's arrest) and summarized
interviews he had conducted with twelve Control Disposal drivers.
Several of the drivers informed Burnside that it was accepted
company policy to illegally dump both hazardous and industrial
waste into the Dallas sewer system; others informed him that
Goldfaden had specifically instructed them to dump waste water into
the sewers. The court did not credit the testimony offered by
Goldfaden to the contrary, because it was inconsistent and
conflicted with Burnside's testimony and information contained in
the presentence report of one of Appellant's co-defendants, Steve
Charo, a former Control Disposal employee.
Appellant asserts that the district court's reliance on
Burnside's hearsay testimony violated his Sixth Amendment
confrontation right. We are unpersuaded by Appellant's argument.
Generally, sentencing proceedings do not offer criminal defendants
the same procedural safeguards as trials. See McMillan v.
Pennsylvania, 477 U.S. 79, 91 (1986) ("Sentencing courts have
traditionally heard evidence and found facts without any prescribed
burden of proof at all."); Williams v. New York, 337 U.S. 241, 250
(1949) (Sentencing courts routinely rely on information that is
inadmissible at trial.). Accordingly, sentencing courts may rely
on reliable information, including hearsay, in imposing sentences.
Williams v. Oklahoma, 358 U.S. 576, 584 (1959). Indeed, the
Federal Rules of Evidence expressly exclude sentencing hearings
from the hearsay rules. Fed. R. Evid. 1101(d)(3). Though the
9

circuit courts at times have been split over the issue,3 we have
held that the introduction of hearsay does not violate the
"severely restricted" confrontation rights of defendants at
sentencing. United States v. Rodriguez, 897 F.2d 1324, 1328 (5th
Cir.), cert. denied, 111 S. Ct. 158 (1990).
Appellant next contends that the court relied on Charo's PSI
without giving Appellant an opportunity to refute its allegations,
thereby denying him due process. The record is unclear as to
whether the district court used Charo's PSI as the basis of the
enhancement or simply to support the credibillity of Agent
Burnside's testimony. We therefore take this opportunity to note
that when the court intends to rely on information not contained in
a defendant's PSI, Criminal Rule of Procedure 32 requires that
"defense counsel must be given an opportunity to address the court
on the issue." U.S. v. Ortero, 868 F.2d 1412, 1415 (5th Cir.
1989).
Finally, Appellant argues that without a finding of actual
environmental contamination, the district court's increase for
3 Compare United States v. Silverman, 945 F.2d 1337 (6th Cir.),
vacated, reh'g granted, 1991 U.S. App. LEXIS 28543 (6th Cir Dec.
4, 1991) and United States v. Wise, 923 F.2d 86, 87 (8th Cir.)
(hearsay evidence violates Confrontation Clause unless declarant
is unavailable), vacated, reh'g granted, 1991 U.S. App. LEXIS
4326 (8th Cir. Mar. 15, 1991) with United States v. Kikumura, 918
F.2d 1084, 1102 (3d Cir. 1990) (normally, reliable hearsay
permissible at sentencing); United States v. Castellanos, 904
F.2d 1490, 1496 (11th Cir. 1990) (sentencing court may rely on
testimony from another trial if defendant is afforded an
opportunity to rebut evidence or cast doubt upon its
reliability); and United States v. Beaulieu, 893 F.2d 1177, 1180-
81 (10th Cir.) (defendant does not have absolute right to
confront witnesses whose information is available to sentencing
court), cert. denied, 110 S.Ct. 3302 (1990).
10

repetitive discharge was improper. Appellant bases his contention
on the commentary to the guideline that states:
Subsection (b)(1) assumes a discharge or emission into the
environment resulting in actual environmental contamination.
A wide range of conduct, involving the handling of different
quantities of materials with widely differing propensities,
potentially is covered. Depending upon the harm resulting
from the emission, release, or discharge, the quantity and
nature of the substance or pollutant, the duration of the
offense and the risk associated with the violation, a
departure of up to two levels in either direction from the
offense levels prescribed in these specific offense
characteristics may be appropriate.
U.S.S.G. 2Q1.2, comment. n.5.
At least three circuit courts, ours included, have discussed
Appellant's theory that subsection (b)(1) requires the Government
to prove environmental contamination. See United States v. Irby,
1991 U.S. App. LEXIS 21687 (4th Cir. Sept 13, 1991) (unpublished);
United States v. Sellers, 926 F.2d 410 (5th Cir. 1991); United
States v. Bogas, 920 F.2d 363 (6th Cir. 1990). Because evidence
was introduced from which the district court could either find or
infer environmental contamination in each of these cases, however,
the courts did not need to decide whether the commentary adds an
additional requirement -- proof of environmental contamination --
to the guideline. See Irby, 1991 U.S. App. LEXIS 21687 at *1;
Sellers, 926 F.2d at 418; Bogas, 920 F.2d at 368. We do not
believe that it does. Rather, we interpret the commentary to
explain that subsection (b)(1) takes environmental contamination as
a given, but allows for upward or downward departures depending on
the potency, size, or duration of the contamination. The absence
of proof of actual environmental contamination, in this case,
11

therefore, does not affect the propriety of the district court's
enhancement for repetitive discharges.
D. Discharge without a Permit
The district court enhanced Appellant's offense level by four
for discharge without a permit as required by section 2Q1.2(b)(4).
Appellant argues that this constitutes a double penalty because his
conviction involved discharge without a permit.
The district court followed section 2Q1.2(b)(4) to the letter
when it added four levels because the "offense involved a discharge
without a permit." U.S.S.G. § 2Q1.2(b)(4). That the sentencing
commission is considering an amendment to the subsection4 does not
alter our conclusion that the district court properly applied the
guideline as now written.
E. Obstruction of Justice
The district court based a two-level enhancement for
obstruction of justice pursuant to section 3C1.1 on three different
grounds: Appellant's concealment of records in relation to count
one of his superseding indictment, his perjurious testimony about
the amount of waste water discharged, and his perjurious testimony
about repetitive discharges. Appellant argues that each of these
grounds is flawed.
We have reviewed the sentencing transcript, and find that the
perjury ruling is fairly supported. Section 3C1.1 provides for an
enhancement "[i]f the defendant willfully obstructed or impeded, or
4 57 Fed. Reg. 97 (1992) (amendment to U.S.S.G. §
2Q1.2(b)(4))(proposed Jan. 2, 1992).
12

attempted to obstruct or impede, the administration of justice
during the investigation, prosecution, or sentencing of the instant
offense." U.S.S.G. § 3C1.1. Though the court may not penalize a
defendant for denying his guilt as an exercise of his
constitutional rights, enhancement based on perjury is permissible.
Id. comment. n.1, n.3(f). Because we find that the perjury ruling
alone supports the enhancement, we decline to address whether acts
committed in furtherance of count one of the indictment could
constitute obstruction of justice in "the instant offense."
F. Acceptance of Responsibility
The district court declined to reduce Appellant's offense
level for acceptance of responsibility. The guidelines suggest
that "[c]onduct resulting in an enhancement [for obstruction of
justice] ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct." U.S.S.G. § 3E1.1
comment. n.4. As we stated earlier, the district court's finding
of perjury is sound. The court's denial of a reduction for
acceptance of responsibility in light of the perjured testimony
similarly is well founded.
G. Disparity
Appellant's final argument is that the district court failed
to consider "the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of
similar conduct." 18 U.S.C. § 3553(a)(6). Though Appellant has
shown that his sentence differs from those of defendants convicted
of similar crimes, he fails to convince us that these disparities
13

are unwarranted. The above noted error aside, the district court's
calculations were in keeping with the guidelines. Absent a
violation in the law, we will uphold the district court's refusal
to depart from the guidelines. As we have explained before, "a
district court has no duty to consider the sentences imposed on
other defendants." United States v. Pigno, 922 F.2d 1162, 1169 n.9
(5th Cir. 1991).
Conclusion
Because the Government violated its plea agreement, we VACATE
Appellant's sentence and REMAND for disposition consistent with
this opinion.
14