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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-1656
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERMAN GOLDFADEN,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(March 17, 1993)
Before POLITZ, Chief Judge, HIGGINBOTHAM and WIENER, Circuit
Judges.
POLITZ, Chief Judge:
Herman Goldfaden, convicted after a guilty plea of unlawful
industrial waste discharge in violation of Dallas Code Chapter 49
and 33 U.S.C. § 1319(c)(2)(A), appeals the sentence imposed.
Finding no error, we affirm.
Background
Goldfaden, as director and treasurer, operated Control Sewer
and Pipe Cleaning, Inc., a Texas concern engaged primarily in
removal of liquid industrial waste and sewer cleaning. In

September 1990 a grand jury returned an 18-count superseding
indictment charging Goldfaden and Control Sewer with conspiracy to
violate and numerous substantive violations of federal law
governing industrial waste transportation and disposal. Goldfaden
agreed to plead guilty to one court of unlawful industrial waste
disposal in violation of 33 U.S.C. § 1319(c)(2)(A); the prosecutor
agreed to dismiss the remaining counts and promised to make no
sentencing recommendation and to pursue no further prosecutions
arising from the operations. The trial court accepted Goldfaden's
plea and sentenced him to 36 months imprisonment, one year of
supervised release, a $75,000 fine, and the mandatory assessment.1
Goldfaden timely appealed his sentence.
Because the government made a recommendation relating to
sentencing in violation of its obligation under the plea agreement
we vacated the sentence and remanded for resentencing before a
different judge.2 Our opinion also addressed several of
Goldfaden's other contentions. We found that the district court
1
The trial court sentenced Goldfaden under U.S.S.G.
§ 2Q1.2, arriving at a total offense level of 22. That figure
included a four-point increase for disposal without a permit under
section 2Q1.2(b)(4). In addition, Goldfaden's offense level
reflected a two-point increase for obstruction of justice under
section 3C1.1 resulting from his attempt to conceal evidence of his
wrongdoing from Dallas authorities, as well as the district court's
finding that he perjured himself at the sentencing hearing.
Goldfaden's offense level and criminal history category resulted in
a guideline sentencing range minimum of 41-months imprisonment.
The district court imposed the 36-month maximum dictated by
33 U.S.C. § 1319(c)(2). See U.S.S.G. § 5G1.1(a).
2
United States v. Goldfaden, 959 F.2d 1324 (5th Cir.
1992). (Goldfaden I).
2

properly increased Goldfaden's offense level for discharge without
a permit and for obstruction of justice, but concluded that the
court should have applied U.S.S.G. § 2Q1.3.
On remand Goldfaden was sentenced under section 2Q1.3. The
offense level of 20 ascertained at the proceeding on remand
included a four-point upward adjustment for disposal without a
permit under U.S.S.G. § 2Q1.3(b)(4), and a two-point upward
adjustment for obstruction of justice as a result of Goldfaden's
prior conduct. The district court sentenced Goldfaden to 33 months
imprisonment,3 a $75,000 fine, one year of supervised release, and
the mandatory assessment. Once again, Goldfaden timely appealed.
Analysis
Goldfaden now challenges the four-point offense level increase
for disposal without a permit and the two-point increase for
obstruction of justice resulting from his perjury at the original
sentencing proceedings.4 We review de novo the district court's
application of the Guidelines,5 and find both of Goldfaden's claims
3
Goldfaden's offense level and criminal history yielded a
guideline sentencing range of 33-41 months imprisonment. See
U.S.S.G. § 5A, Sentencing Table.
4
Goldfaden does not dispute the perjurious nature of that
testimony. We note that the district court applied the obstruction
of justice enhancement on the basis of his attempted concealment of
records from authorities as well as his perjured testimony.
5
E.g., United States v. Shell, 972 F.2d 548 (5th Cir.
1992).
3

devoid of merit.
1.
Discharge Without a Permit
Goldfaden maintains that because Dallas allows sewerage
disposal only by trucks with treatment equipment, he could not have
obtained a permit and the district court should not have increased
his offense level for failing to secure one.6 Goldfaden correctly
points out that the upward adjustment under U.S.S.G. § 2Q1.3(b)(4)
applies only where regulations require a permit.7 However, as
Goldfaden acknowledges, Dallas allows waste discharge into its
sewer system by permit only. The use of improper equipment does
not excuse Goldfaden's failure to obtain the required permit. This
argument founders.
Goldfaden argues in the alternative that the enhancement for
disposal without a permit again punishes conduct accounted for in
the base offense level. As we previously have noted, sentencing
courts must follow the clear mandate of the Guidelines, even where
more than one offense level increase for the same conduct results.8
6
Because this argument lacks merit, we need not address
the government's contention that Goldfaden's failure to raise it on
his first direct appeal precludes its assertion now.
7
U.S.S.G. § 2Q1.3(b)(4), Application Note 7.
8
See United States v. Rocha, 916 F.2d 219 (5th Cir. 1990)
(unless expressly prohibited by Guidelines, sentencing courts must
apply offense level enhancement for conduct already taken into
account elsewhere), cert. denied, 111 S.Ct. 2057 (1991); United
States v. Vickers, 891 F.2d 86 (5th Cir. 1989) (guideline sentence
for escape could be enhanced by adding criminal history points
under U.S.S.G. § 4A1.1(e) for offense committed while in custody).
4

Notwithstanding the Sentencing Commission's pending proposal for
changes to U.S.S.G. § 2Q1.3(b)(4) to avoid "double counting," the
district court properly followed the clear and compelling language
of that section as presently written.9 There was no error.
2.
Obstruction of Justice
Goldfaden argues that the vacatur of his initial sentence
precludes an offense level enhancement on remand for obstruction of
justice based on his prior perjured testimony. We do not agree.
The vacating of the earlier sentence in no way diminished the fact
or impact of Goldfaden's perjury.
Goldfaden further contends that because his perjured testimony
did not relate to his offense of conviction, it should not cause an
offense level increase under U.S.S.G. § 3C1.1. As Goldfaden notes,
the guidelines refer to obstruction of justice "during the . . .
sentencing of the instant offense."10 Although we previously have
recognized that this language may require a link between
obstructive conduct and the offense of conviction,11 we have not
resolved that question and need not do so now. The district court
9
Goldfaden I; accord United States v. Ellen, 961 F.2d 462
(4th Cir.) (defendant convicted of unlawful waste discharge without
permit properly subjected to offense level enhancement under
U.S.S.G. § 2Q1.3(b)(4)), cert. denied, 113 S.Ct. 217 (1992).
10
U.S.S.G. § 3C1.1 (emphasis added).
11
United States v. Rogers, 917 F.2d 165 (5th Cir. 1990),
cert. denied, 111 S.Ct. 1318 (1991), overruled on other grounds,
United States v. Lambert, 1993 WL 35719 (5th Cir. Feb. 16, 1993)
(en banc); United States v. Roberson, 872 F.2d 597 (5th Cir.),
cert. denied, 493 U.S. 861 (1989).
5

found that at his original sentencing hearing Goldfaden gave false
testimony about the amount of waste involved in the offense to
which he pleaded guilty and about his illegal waste disposal on
other occasions. Statements at sentencing about the severity of
the offense of conviction and similar conduct on other occasions
are patently relevant to sentencing. Goldfaden's perjurious
statements fully support the upward adjustment for obstruction of
justice.12
The sentence is AFFIRMED.
12
Because Goldfaden's perjury alone sufficiently supports
the district court's upward adjustment, we need not address the
effect of his attempt to conceal evidence from investigating
authorities.
6