Repeated Criminal Violations Precludes 5K2.20 Departure

US v. Hillyer: Hillyer was brought in by a construction company to take over a troubled bridge building project over Croatan Sound in North Carolina. The project was running long and was over budget when Hillyer took over, but he got things back on track and completed the bridge.

Once complete, the company needed to remove a temporary bridge that aided the construction process in order to relocated it to another site. Unable to dislodge the temporary bridge's pilings from the bottom of the sound, Hillyer ordered that a channel be dug around the pilings to facilitate their removal. That contravened the Corps of Engineers permits for the project. Hillyer persisted with this "prop dredging" operation, even after being told to stop by the CoE. Hillyer even organized the work to be done under cover of darkness.

For his troubles, Hillyer was convicted after a guilty plea of conspiracy to violate the Clean Water Act and Rivers and Harbors Act of 1899 as well as violating the Rivers and Harbors Act.

At sentencing, Hillyer's final offense level was 13, producing a sentencing range of 12 to 18 months. Hillyer argued for a departure for aberrant behavior under 5K2.20, which the Government opposed. The district court, without explanation, sentenced Hillyer to three years of probation, 300 hours of community service, and a $10,000 fine. In a later written order, the court explained that it was granting Hillyer's departure motion, but did not specify the size of the departure or the resulting Guideline range. The Government appealed.

The Fourth Circuit reversed Hillyer's sentence. After noting that the district court failed to adequately calculate a departure and resulting Guideline range, the court went on to conclude that Hillyer did not qualify for a 5K2.20 departure anyway. Specifically, his criminal conduct was not a "single criminal occurrence," but was rather an ongoing series of illegal acts.

The court vacated, without addressing whether a similar sentence applied after a proper Guideline calculation and Booker variance would be unreasonable.