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United States v. Abrogar

August 18, 2006

UNITED STATES OF AMERICA
v.
NOEL ABROGAR, APPELLANT



On Appeal from the United States District Court for the District of New Jersey District Court No. 05-cr-00649. District Judge: The Honorable Joseph H. Rodriguez.

The opinion of the court was delivered by: Smith, Circuit Judge

PRECEDENTIAL

Argued July 11, 2006

Before: SMITH, ALDISERT, and ROTH, Circuit Judges

OPINION OF THE COURT

Appellant Noel Abrogar pleaded guilty to a one-count Information charging him with failing to keep an accurate "oil record book" in violation of 33 U.S.C. § 1908(a), part of the legislation implementing an international anti-pollution treaty to which the United States is a signatory. On appeal, Abrogar challenges the District Court's application of a six-level sentencing enhancement pursuant to § 2Q1.3 of the United States Sentencing Guidelines (the "Guidelines"), arguing in relevant part that under the text of § 2Q1.3 and other applicable Guidelines provisions, his offense did not "result[] in" the repeated discharges of oily waste upon which the sentencing enhancement was based. We agree. Accordingly, we will vacate Abrogar's sentence and remand the case to the District Court for resentencing.*fn1

I.

A.

Pollution discharges from ships are regulated by both U.S. and international law. The Act to Prevent Pollution from Ships ("APPS"), 33 U.S.C. § 1901 et seq., implements two related treaties to which the United States is a signatory. The first is the 1973 International Convention for the Prevention of Pollution from Ships, referred to as the MARPOL Protocol. The second is the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships. Together, the two treaties are generally referred to as MARPOL 73/78 ("MARPOL"), and more than 95% of the world's shipping tonnage is transported under the flags of signatories to these treaties.

Annex I to MARPOL sets forth regulations for the prevention of pollution by oil from ships. APPS authorizes the U.S. Coast Guard to issue regulations implementing the requirements of these two treaties. 33 U.S.C. § § 1903 and 1907. The Coast Guard has issued such regulations incorporating MARPOL requirements. See 33 C.F.R. § 151.01 et seq.

Annex I sets out, inter alia, the international standards for the maximum amount of oil permitted to be discharged from ships. MARPOL also requires ships to have and maintain several pieces of equipment intended to work together to measure the oil content of various waste and bilge discharges from ships and to divert discharges containing too much oil to storage tanks rather than allowing them to be discharged from the ship into the ocean.

In addition to prohibitions on oily waste discharges, the treaties require each oil tanker over a given weight to maintain a record known as an oil record book. MARPOL Annex I, Reg. 20(1). The oil record book must include records for (1) all transfers of oil; (2) management and disposal of oily wastes generated on board the vessel, including any discharges of dirty ballast or cleaning water from fuel oil tanks; and (3) the disposal of oily residues such as sludge, as well as discharges of bilge waste that has accumulated in machinery spaces. Id. at Reg. 20(2). Accidental or emergency discharges of oil or oily waste greater than 15 or 100 parts per million ("ppm") must also be recorded. These entries in the oil record book must be signed by the person in charge of the operation (in this case, Abrogar). Id. at Reg. 20(3). The oil record book must be maintained on board for not less than three years and must be kept on board the vessel and readily available at all reasonable times. Id.

The Coast Guard has the authority to board and examine the oil record book of any vessel while that vessel is in U.S. waters or at a U.S. port. 33 U.S.C. § 1904(c); 33 C.F.R. § 151.23(a)(3) and (c). The U.S. is a party to the international regime embodied in MARPOL and other treaties that require the country in which a ship is registered, known as the "flag state," to certify a ship's compliance with international standards. "Port states," such as the U.S. in this instance, conduct inspections to ensure compliance in their ports and waters. In conducting inspections, the Coast Guard typically relies on a ship's oil record book and statements of the crew to determine whether the crew is properly handling oil-contaminated water and its disposal. Failure of a ship to comply with MARPOL requirements can form the basis for U.S. action to refuse to allow that ship to ...


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