MILES, Senior District Judge.
The United States appeals the district court's downward departure from the guidelines in sentencing John W. Rutana on 18 counts of knowing discharge of pollutants into a public sewer system in violation of the Federal Water Pollution Control (Clean Water) Act, 33 U.S.C. § 1251 et seq. For the following reasons, we reverse and remand the case to the district court for resentencing.
John Rutana was a part-owner and chief executive officer of a now-bankrupt corporation known as Finishing Corporation of America ("FCA"). In late 1985, FCA began operating a metal finishing plant in Campbell, Ohio. The plant was located directly across the street from the city of Campbell's Waste Water Treatment Plant ("CWWTP").
FCA's plant was constructed with a plastic discharge pipe, which was intended to transport sulfuric and nitric acids. This pipe led into a city sewer line, which in turn led directly into CWWTP.
Although Rutana and John C. Barnes, FCA's plant manager, claimed to have met in February, 1987 to devise a "mixing plan" to neutralize the acid and alkaline discharges, the ineffectiveness of this alleged plan became apparent in March, 1988, when
On May 31, 1989, Rutana was indicted by a grand jury on 18 counts of "knowingly discharging and causing to be discharged pollutants which caused corrosive structural damage and which had a pH of less than 5.0 into a public sewer system and, thereby, into the Campbell, Ohio Waste Water Treatment Plant ... in violation of national pretreatment standards," all in violation of 33 U.S.C. § 1317(d) and § 1319(c)(2)(A); on two counts of knowing endangerment of CWWTP employees, in violation of 33 U.S.C. § 1319(c)(3); and on two counts of making false statements in a matter within the jurisdiction of the United States Environmental Protection Agency in violation of 18 U.S.C. § 1001.
On October 2, 1989, pursuant to a plea agreement, Rutana pled guilty to the 18 Clean Water Act violations, and the remaining charges were dismissed. Rutana's co-defendants also pled guilty pursuant to plea agreements with the government.
A presentence report was prepared by the probation officer. Under 33 U.S.C. § 1319(c)(2), the maximum penalty which could have been imposed upon Rutana for each violation was three years imprisonment and a $50,000 per day fine. The presentence report calculated that the guidelines indicated a term of imprisonment of 27 to 33 months, based upon an offense level of 18 and a criminal history category I (Rutana had no prior offenses). United States Sentencing Commission, Guidelines Manual (hereinafter "U.S.S.G."), Ch. 5, Part A (Nov.1989) (Sentencing Table).
In detailing Rutana's employment record, the report noted that Rutana was also the owner and chief operating officer of another business, Viking Manufacturing Company, which employed 26 people. The probation officer also noted that neither the government nor defense counsel had presented him with factors to warrant a departure from the guidelines.
This circuit has established a three-step procedure to be used in reviewing downward departures from the guidelines. First, we determine whether the case is sufficiently "unusual" to warrant departure. United States v. Brewer, 899 F.2d 503, 506 (6th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990).
Id. at 506 (quoting United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989)).
In sentencing Rutana, the district judge gave the following explanation for his downward departure from the guidelines:
Thus, the district judge clearly relied upon Rutana's ownership of another business which, he concluded, might fail if Rutana were to be incarcerated.
Our de novo review leads us to conclude that the circumstance expressly relied upon by the district court does not make this case sufficiently unusual to warrant a downward departure from the guidelines. The guidelines specifically state that a defendant's socioeconomic status is not relevant in the determination of a sentence. U.S.S.G. § 5H1.10; Brewer, 899 F.2d at 508. Furthermore, even assuming that Rutana's imprisonment would lead to the failure of his business and the loss of his employees' jobs, this fact does not distinguish Rutana from other similar offenders. "`[T]here must be something "special" about a given offender, or the accouterments of the crime committed, which distinguishes the case from the mine-run for that offense.'" United States v. McDowell, 902 F.2d 451, 455 (6th Cir.1990) (quoting United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir.1989)). We find nothing special about an industrial polluter who also happens to be an employer. The very nature of the crime dictates that many defendants will likely be employers, whose imprisonment may potentially impose hardship upon their employees and families. In sum, Rutana's status as a business owner simply does not distinguish his case from the "mine-run" of cases involving the discharge of prohibited effluents into the environment, and is not a legally sufficient basis for downward departure.
The imposition of a "harsh" fine is not a proper basis for departure from the guidelines. The guidelines have already taken fines, even large ones, into consideration. See U.S.S.G. § 5E1.2(c)(3) (specifying minimum fine of $6,000 and a maximum fine of $60,000 for offense levels 18 and 19).
Rutana argues that because his sentence is now "uniform" with those of Barnes and Fiorini, resentencing him could result in the type of disparity which the guidelines were intended to prevent. See 18 U.S.C. § 3553(a)(6) (sentencing court must consider, among other factors, the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct). However, departure in order to achieve conformity among co-defendants is not appropriate where there is a basis for disparity. United States v. Nelson, 918 F.2d 1268, 1273 (6th Cir.1990). The record indicates that there is indeed some basis for disparity. Both Fiorini and Barnes pled guilty to negligent, rather than knowing, violations of the Clean Water Act. U.S.S.G. § 2Q1.2 assumes knowing conduct, and downward departure may be warranted in cases involving negligent violations. U.S.S.G. § 2Q1.2, comment. (n. 4). In addition, both Fiorini and Barnes received decreases of four levels for their "minimal participant" roles in the offenses, while Rutana received an increase of two levels for his leadership role. Rutana's situation was not the same as that of his co-defendants, and we decline to hold as a matter of law that his sentence should be the same.
We appreciate the difficult task of the sentencing judge, and do not wish to displace his discretion in resentencing Mr. Rutana. In our decision, we have simply indicated those factors which are improper bases for departure. However, we stress that in imposing sentence, the district court should not only eliminate consideration of those factors which the guidelines have already taken into account or expressly deemed irrelevant; he should also consider "the full panoply" of relevant sentencing factors, aggravating as well as mitigating. Brewer, 899 F.2d at 511. We remind the district court that the burden of persuading the sentencing court that a downward departure is warranted rests with the defendant. United States v. Bogas, 920 F.2d 363, 369 (6th Cir.1990). Furthermore, the court must state the specific reason(s) for any departure. Id.; United States v. Fitzwater, 896 F.2d 1009, 1011 (6th Cir.1990).