UNITED STATES of America, Plaintiff–Appellee v. Bennie E. RICHARDSON, IV, Defendant–Appellant.
No. 11–20773.
-- April 01, 2013
Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.Paula Camille Offenhauser, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellee.David Adler, Bellaire, TX, for Defendant–Appellant.
Bennie E. Richardson, IV (“Richardson”) challenges his conviction for distribution of child pornography, arguing that he did not “distribute” child pornography by storing images in a shared folder accessible on a peer-to-peer computer network. Richardson also asserts that the district court erred in applying a two-level enhancement under U.S.S.G. § 2G2.2(b)(6) based on the use of a computer. For the reasons more fully set forth below, we AFFIRM.
I.
Richardson challenges his conviction and sentence following a bench trial on stipulated facts. The parties stipulated to the following. On July 14, 2008, Lieutenant M. Gray, the Unit Commander for the Houston Metro Internet Crimes Against Children Task Force, entered a peer-to-peer network using undercover software to locate and identify individuals making child pornography available to others online. Lieutenant Gray searched for shared files accessible to the general public using common search terms associated with child pornography. Lieutenant Gray located a user in Pasadena, Texas, offering a large variety of videos that, by their titles, appeared to be child pornography. He proceeded to download a video of child pornography from the user, ultimately identified as Bennie Richardson.
On July 25, 2008, a search warrant was executed on the Pasadena residence where Richardson, along with two other individuals, resided. Richardson was found upstairs, standing in front of a computer when officers entered. Police found LimeWire—a peer-to-peer file-sharing program—running with files being actively transferred to Richardson's computer.1
Peer-to-peer file sharing is a means of Internet communication utilizing software that lets users exchange digital files through a network of linked computers. Users access peer-to-peer networks by downloading the peer-to-peer software from the Internet; this software is used exclusively for sharing digital files. Generally, after a user downloads or installs the software, either the user selects a folder to store downloaded files or the installation program designates the shared folder as the default folder into which files are automatically downloaded. Files that are downloaded into the shared folder (or downloaded into a separate folder but later placed into the shared folder) are available to anyone on the peer-to-peer network for downloading. Someone interested in sharing child pornography with other peer-to-peer network users need only leave or place such files in his shared folder, which other users may then access by searching for relevant terms and phrases.
The peer-to-peer program is structured so as to incentivize the sharing of files. As stipulated to by the parties:
Most [peer-to-peer] software gives each user a rating based on the number of files he/she is contributing to the network. This rating affects the user's ability to download files. The more files a user is sharing, the greater his/her ability is to download files. This rating system is intended to encourage users to “share” their files, thus propagating the [peer-to-peer] network.
As a result, a user's ability to download files hinges in part on the number of files the user contributes to the network.
In this instance Richardson's “shared” file on LimeWire contained 144 videos; the videos were determined to be known child pornography. Police also examined two computer hard drives owned by Richardson; each contained images and videos of children under the age of 18 participating in sexual activities.
Richardson admitted that he was the only person in the home using the computer in his room and that none of the residents knew of his activities involving child pornography; that he was a computer technician and was very knowledgeable about computers; that he was familiar with common search terms associated with child pornography; that he installed LimeWire on his computer; and that he knew that what was in his “shared” folder was made available to others through file sharing.
Following the bench trial on stipulated facts,2 Richardson was found guilty of distribution of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(B) and 2252A(b)(1) (Count 1) and possession of child pornography involving the sexual exploitation of minors in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A) (Count 2). After the district court granted Richardson's request for a two-level acceptance of responsibility decrease and varied down one additional level, Richardson had a total offense level of 34 and a criminal history category of I, producing a Guidelines range of 151 to 188 months. The district court imposed a sentence of 151 months on Count 1 and 120 months on Count 2 (to run concurrently). The district court stated that even if its calculation under the Guidelines was incorrect, it would still impose the same sentence.
II.
Richardson first argues that his conduct did not amount to “distribution” under the statute.3 We review a claim of statutory interpretation de novo. United States v. Clayton, 613 F.3d 592, 595 (5th Cir.2010). Section 2252A(a)(2)(B) provides, in relevant part:
(a) Any person who—
·
(2) knowingly receives or distributes—
·
(B) any material that contains child pornography that has been mailed, or using any means or facility of interstate or foreign commerce shipped or transported in or affecting interstate or foreign commerce by any means, including by computer;
·
shall be punished·
18 U.S.C. § 2252A(a)(2)(B) (2006).
Noting that § 2252A does not define “distributes,” Richardson argues that the plain meaning of the word is “to deliver.” He cites an Eleventh Circuit Pattern Jury Instruction, which reads: “To ‘distribute’ something means to deliver or transfer possession of it to someone else, with or without any money involved in the transaction.” Eleventh Circuit Pattern Jury Instructions (Criminal Cases)) 83.4A (2010). Richardson alleges that there is no evidence that he actually delivered or transferred possession of his child pornography to another person; rather, he installed LimeWire on his computer, downloaded materials that included child pornography, and then, unbeknownst to him, an undercover officer downloaded a video from Richardson's computer. Richardson contends that he did not control whether or not others would download files from his account; he merely kept files in a “shared folder,” such that others could gain access to the files on the computer only if they affirmatively initiated a download. He maintains that storing files on a peer-to-peer network in this manner is akin to leaving magazines containing child pornography in a public location: while anyone would be able to pick up the magazines or even take them, his act of leaving the magazines has not actually transferred possession of the magazines.
We recognize that we have not yet addressed the issue of whether placing items in a shared folder on a peer-to-peer program may constitute distribution for purposes of the statute. We have, however, numerous times held that use of a peer-to-peer program can constitute distribution for the purposes of U.S.S.G. § 2G2.2(b)(3)(B).4 For example, in United States v. Powers we stated: “Powers used a peer-to-peer program on his computer to obtain images of child pornography and, also, to make the images available to others. Under the Guidelines, making the images available to others constitutes distribution and may be accounted for as relevant conduct.” 379 Fed.Appx. 347, 348 (5th Cir.2010).5
Other circuits have squarely addressed this issue, and we find the reasoning of the Tenth Circuit in United States v. Shaffer persuasive. 472 F.3d 1219 (10th Cir.2007). In Shaffer, the defendant downloaded images and videos from a peer-to-peer computer network and stored them in a shared folder on his computer which was accessible to other users of the network. Id. at 1220–21. Shaffer was convicted of distribution of child pornography and argued on appeal—as Richardson does here—that he did not “distribute” child pornography because he did not actively transfer possession to another; rather he was only a passive participant in the process. Id. at 1223. The Tenth Circuit rejected this argument, concluding that Shaffer “distributed child pornography in the sense of having ‘delivered,’ ‘transferred,’ ‘dispersed,’ or ‘dispensed’ it to others.” Id. The court compared Shaffer's role in the process to that of the owner of a self-service gas station: although the owner might not be present and does nothing when a motorist purchases gas at the pump, the gas station owner distributes gasoline just as a computer user on a peer-to-peer network distributes child pornography—by making the material available for other users on the network just as the gasoline is available to passing motorists.6 Id. at 1223–24.
The First Circuit reached the same conclusion in United States v. Chiaradio, stating: “When an individual consciously makes files available for others to take and those files are in fact taken, distribution has occurred,” and “[t]he fact that the defendant did not actively elect to transmit those files is irrelevant.” 684 F.3d 265, 282 (1st Cir.2012).7
Such is the case here. We agree with the conclusions set forth in Shaffer and Chiaradio, and we conclude that downloading images and videos containing child pornography from a peer-to-peer computer network and storing them in a shared folder accessible to other users on the network amounts to distribution under § 2252A(a)(2)(B) under the stipulated facts in this case. Considering that Richardson was a computer technician with computer experience, he affirmatively downloaded the LimeWire program, he maintained 144 videos of child pornography in his shared folder, he knew that others could access the materials stored in his shared folder, and Lieutenant Gray actually downloaded one such video, the evidence was sufficient to support a finding that Richardson distributed child pornography in violation of § 2252A(a)(2)(B).
III.
Richardson also argues that the application of the two-level enhancement under U.S.S.G. § 2G2.2(b)(6) constituted unwarranted double-counting because the statute of conviction contemplates the use of a computer to commit the crime as one of the elements of the offense, and therefore the computer was already included in his base offense level.8 We review a district court's interpretation and application of the Sentencing Guidelines de novo. United States v. Valenzuela–Quevedo, 407 F.3d 728, 731 (5th Cir.2005).
Although § 2252A(a)(2)(B) provides that the offense can be committed by “any means or facility of interstate or foreign commerce · including by computer,” § 2G2.2(b)(6) does not expressly forbid double-counting. In United States v. Calbat we held that the Guidelines do not contain a general prohibition against double-counting; rather, double-counting is prohibited only if the relevant Guideline expressly forbids it. 266 F.3d 358, 364 (5th Cir.2001). Because § 2G2.2(b)(6) does not expressly prohibit double-counting, the district court did not err in applying § 2G2.2(b)(6).9
We also note that the statutory language “including by computer” does not require computer use to violate the statute: using a computer is just one example of a manner in which child pornography can be transmitted, and Richardson would have violated the statute had he transported child pornography “by any means” affecting interstate commerce. See 18 U.S.C. § 2252A(a)(2)(B). As the Sixth Circuit noted in United States v. Lewis, “because Lewis could have violated the statute without using a computer, we cannot say that computer use is an element of the crime,” and the use of a computer “may serve as an offense characteristic affecting the determination of his sentence [and] may result in an additional sentence enhancement.” 605 F.3d 395, 403 (6th Cir.2010).
And further, any error in calculating the total offense level was harmless, given the district court's clear statements that it would have imposed the same sentence regardless of the correctness in the calculation.
IV.
Finding no error, the judgment of the district court is AFFIRMED.
FOOTNOTES
1. Forensic examination revealed that the files that were completely transferred in this instance were adult pornography.
2. The parties had a bench trial on stipulated facts solely to preserve the issue of whether Richardson's conduct constituted distribution. Thus Richardson did not contest any of the underlying facts in this case, only the legal definition of “distributes” and whether his conduct meets that definition.This approach is not controverted on appeal, hence we express no opinion as to the propriety of a “stipulated bench trial” rather than a conditional guilty plea as a procedural vehicle that preserves an issue for appeal or how such an approach conforms with the Federal Rules of Criminal Procedure, notably Rules 11 and 23, as well as with double jeopardy doctrine.
3. While Richardson frames his argument as an inquiry into whether there was sufficient evidence that he committed the offense (and thus articulates that the standard of review is whether the finding of guilty is supported by substantial evidence), Richardson's real challenge is that what he did failed to amount to distribution, an element of the offense. Thus, the appeal presents an underlying issue of statutory construction. See United States v. Saldana, 427 F.3d 298, 306 n. 21 (5th Cir.2005) (noting that although posited as a sufficiency challenge, the defendants' real challenge was that their actions were not prohibited by any statute); cf. United States v. Compian–Torres, No. 11–10921, –––F.3d ––––, ––––, 2013 WL 1135808, at *2 (5th Cir. Mar. 19, 2013) (addressing, but not resolving, the question of which standard of review is appropriate when a challenge to the sufficiency of the evidence masks a purely legal question).
4. U.S.S.G. § 2G2.2(b)(3)(B) provides for an increase of five levels where an offense involving the sexual exploitation of a minor involved: “Distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain ·” (emphasis added).
5. See, e.g., United States v. Onken, 440 Fed.Appx. 304, 305 (5th Cir.2011) (“[Defendants] were sophisticated users of computers and the file-sharing program who knowingly made their child pornography files available to others and obtained child pornography files from the file-sharing network· The district court did not err in finding that they distributed child pornography ·”); see also United States v. Burman, 666 F.3d 1113, 1118–19 (8th Cir.2012).
6. We note that the owner of a gas station, unlike a passive user on a peer-to-peer file-sharing network, affirmatively places a product into the marketplace and expects remuneration. We note as well that the sale of gas, a tangible good, entails a transfer of possession, whereas the transmittal of digital child pornography, an intangible good, does not. That the Tenth Circuit's analogy is not a perfect one, however, does not in any way upset our confidence in its interpretation of the statute.
7. See also United States v. Budziak, 697 F.3d 1105, 1108–10 (9th Cir.2012) (holding that the placement of child pornography in a shared folder on a peer-to-peer network constitutes distribution of child pornography); United States v. Collins, 642 F.3d 654, 656–57 (8th Cir.2011) (same).
8. U.S.S.G. § 2G2.2(b)(6) provides: “If the offense involved the use of a computer or an interactive computer service for the possession, transmission, receipt, or distribution of the material, or for accessing with intent to view the material, increase by 2 levels.”
9. See also United States v. Desadier, 495 Fed.Appx. 501, 503 (5th Cir.2012) (finding district court's application of § 2G2.2(b)(6) did not constitute impermissible double-counting); United States v. Lynde, 428 Fed.Appx. 334, 338 (5th Cir.2011) (same).
W. EUGENE DAVIS, Circuit Judge:
Timmy VUNCANNON, Plaintiff Tippah County, Third Party Plaintiff–Appellant v. UNITED STATES of America, Defendant Mississippi Public Entities Workers' Compensation Trust, Third–Party Defendant–Appellee.
No. 12–60435.
-- March 15, 2013
Before STEWART, Chief Judge, and SMITH and WIENER, Circuit Judges.Billy Sean Akins, Akins & Adams, P.A., Ripley, MS, for Third Party Plaintiff–Appellant.Joshua Jerome Wiener, Butler, Snow, O'Mara, Stevens & Cannada, P.L.L.C., Ridgeland, MS, for Third–Party Defendant–Appellee.
This case asks whether plaintiff Timmy Vuncannon, a county jail inmate, was covered under the Mississippi Workers' Compensation Act (“MWCA”) and thus is entitled to compensation benefits for injuries sustained while he was laboring on a work detail program maintained by Appellant Tippah County (“the County”). The incarcerating county and the medical corporation that treated Vuncannon seek reimbursement of medical expenses from Appellee, Mississippi Public Entities Workers' Compensation Trust (“MPE”), the provider of workers' compensation insurance for the County. Concluding as a matter of law that the County had no enforceable contract of hire with Vuncannon, which is a prerequisite to coverage under the MWCA, we AFFIRM the district court's summary judgment in favor of MPE.
I. FACTS AND PROCEDURAL HISTORY
While he was serving time in the County's jail, Vuncannon labored in a county work program under the sheriff's supervision, for which services he earned $10 per day to be credited “toward any and all charges of F.T.A/cash bonds owed to the county.” Vuncannon was seriously injured in a forklift accident while helping law enforcement officials conduct a “drug bust” pursuant to that program.
In his federal court action, Vuncannon asserted both state and federal claims against numerous defendants, all of which have been dismissed. Shelby County Health Care Corporation (“the MED”), owner of the medical facility where Vuncannon was treated for his injuries, filed a complaint in intervention, contending that Mississippi law required the County to pay Vuncannon's hospital bills of more than $640,000. The MED ultimately settled its claims against the County, and, with the County, filed a third party complaint against MPE. The County contended that because Vuncannon was injured while working as a trustee for its jail, he was covered by the MWCA, making MPE liable for reimbursing his medical expenses. MPE countered that it is under no obligation to provide reimbursement because county inmates injured on work detail are not among those covered by the MWCA.
Both sides moved for summary judgment. Noting an absence of binding authority, the district court concluded that the Mississippi Supreme Court would likely interpret the MWCA strictly and deny coverage in this case. Although conceding that the issue posed a difficult question of state law, the court dismissed the claim against MPE by granting its motion for summary judgment.
The County now appeals that judgment, insisting that statutory provisions excluding state inmates from MWCA coverage do not apply to county inmates like Vuncannon. MPE responds that the dispositive issue is not whether the exclusion of state inmates extends to county inmates, but whether, when Vuncannon was injured, he qualified as an “employee” under a “contract of hire,” as required for him to come within the purview of the MWCA in the first place.
II. ANALYSIS
A. Standard
We review a grant of summary judgment de novo, applying the same legal standards as do the district courts.1 Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”2 When reviewing a summary judgment, we construe all the evidence and reasonable inferences in the light most favorable to the nonmoving party.3 We are “not limited to the district court's reasons for its grant of summary judgment”4 and “may affirm the district court's judgment on any grounds supported by the record.”5
B. The Mississippi Workers' Compensation Act
Under Mississippi law, compensation “shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease.”6 The law defines an eligible “employee” as “any person · in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied·”7 Mississippi's statutes also specify exclusions that, by their terms, place some classes of inmates outside the MWCA's scope. For example, Mississippi Code § 47–5–417 provides that no inmate, while outside the jail on a state-approved work program, “shall be deemed to be an agent, employee or involuntary servant of the Department of Corrections, the state or any political subdivision thereof[.]” Vuncannon was not a participant in any state-approved work program, however, and the County had not implemented any such program at the time Vuncannon was injured. Likewise, Mississippi Code § 47–5–567—which excludes “inmate[s]” from MWCA coverage—applies only to state inmates and thus has no bearing on the status of Vuncannon, who was a county inmate.8
The County contends that the absence of an explicit workers' compensation exclusion that applies to Vuncannon is dispositive. But whether an applicable exclusion bars Vuncannon's MWCA eligibility is only of import if Vuncannon is shown to qualify as an “employee” working under a “contract of hire” under the express terms of the MWCA.9 Mississippi courts have not addressed whether and in what circumstances a county prisoner injured on a work detail is an employee working pursuant to a contract of hire, but the Mississippi Supreme Court has identified the common law features of an employment contract that bear on the question. Required are (1) the consent of the parties, (2) consideration for the service rendered, and (3) control over the employee.10
Based on the undisputed material facts of the instant summary judgment record, we conclude that Vuncannon was not an employee working under a contract of hire within the intendment of the MWCA. At the outset, we note an absence of any express, written contract between Vuncannon and the County. It is true that a worker may be an “employee” covered by the MWCA if his “contract of hire” is either written or oral, express or implied, so this absence is not dispositive.11 The County's assertion that an express, written agreement existed, however, finds no support in the record. The County points only to a notice from the sheriff transmitted not to Vuncannon, but to the Tippah County Justice Court, stating that Vuncannon had been placed on a work detail program and credited $10 per day for his labor. Vuncannon never signed this document, however, and it was dated January 26, 2006—the day of his injury and nine days after he began working for the County. Neither is it evident from the record that Vuncannon was even aware of that notice, much less that he was given a copy of it or of any other writing explaining the terms and conditions under which he would work.
Any contention that Vuncannon labored under an implied contract of hire likewise proves unavailing. First, notwithstanding the dearth of Mississippi case law on point, the Mississippi Attorney General (“AG”) has addressed a similar matter. Responding to the question whether a city must carry workers' compensation insurance for a convict participating in community service pursuant to the terms of a municipal court order, the AG cited Mississippi Code § 71–3–3 in a 1991 opinion letter which concluded that “a person performing work as part of his sentence for a criminal conviction is not an ‘employee’ according to [the MWCA's] definition as there is no ‘contract of hire.’ ”12
The AG's opinion addressed mandatory work required by court order, whereas Vuncannon was alleged to have volunteered for the subject work detail assignment. As noted in a leading workers' compensation treatise, however, state courts typically find mutual assent wanting, not only when “the prisoner has no choice in the matter of working or not working,” but also when “the appearance of free choice is belied by the presence of a residual right of compulsion.”13 Although the parties dispute whether Vuncannon in fact volunteered to work, his consent is at best illusory when examined against the backdrop of Mississippi's long-held practice of requiring convicts to work. Under Mississippi law,
[i]t is the imperative duty of the board of supervisors in each county in this state to require each convict sentenced to imprisonment in the county jail and the payment of a fine and costs, or to imprisonment and payment of costs, or to payment of fine and costs, to work out the sentence on the county convict farm or on the public roads or other public works of the county, or in a contiguous county[.] 14
That Vuncannon, like any Mississippi inmate, was entitled to credit for his labors15 does not change the fact that the County simply could have required him to work.
Further, although coverage under the MWCA usually “is not affected by the fact that an employee's wages are minimal,”16 courts nationwide have looked to whether the inmate labored alongside, and under circumstances substantially similar to, traditional workers in determining workers' compensation eligibility.17 There might be “little justification in freeing [a private] employer from the burdens of the prisoner's work-related injury”18 when, for example, the prisoner works outside the prison pursuant to a work-release program. But, Vuncannon suffered injury while working under the supervision of the country sheriff for the benefit of the Mississippi Bureau of Narcotics, a public entity. He received only a $10 per day credit “toward any and all charges of F.T.A/cash bonds owed to the county”—a meager sum well below the prevailing wages earned by traditional public-sector workers, and not in cash at that. Perhaps most importantly, as Mississippi law saddles the incarcerating county with the burden of paying an indigent inmate's hospital bills,19 it is the County, and not Vuncannon himself, that is likely to be stuck with the hospital costs. Of course, absent workers' compensation, a typical county worker in Mississippi would have no such recourse against his employer for injuries sustained on the job—casting doubt on the necessity and practical import of providing such coverage for inmates.
We note in closing that if the County had bargained successfully with MPE for coverage of its working inmates, it would be entitled to the benefit of that bargain, regardless whether the MWCA in fact required the County to maintain that coverage. The record, however, includes neither evidence nor allegation that any such bargaining occurred. It follows that the County has not been deprived of any payment to which it is entitled.
III. CONCLUSION
Because, at the time of his injury, Vuncannon was not working for the County under a contract of hire, he did not fall within the ambit of the MWCA. Thus, the County's workers' compensation insurance did not cover Vuncannon's medical expenses. We therefore AFFIRM the district court's judgment dismissing the third party plaintiffs' claims against MPE.
FOOTNOTES
1. United States v. Caremark, Inc., 634 F.3d 808, 814 (5th Cir.2011).
2. Fed.R.Civ.P. 56(a).
3. Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 234 (5th Cir.2010).
4. Aryain v. Wal–Mart Stores Tex. LP, 534 F.3d 473, 478 (5th Cir.2008).
5. Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir.2009).
6. Miss.Code Ann. § 71–3–7 (emphasis added).
7. Miss.Code Ann. § 71–3–3 (emphasis added).
8. The Mississippi legislature adopted the MWCA in the late 1950s, but exempted cities and counties from the class of employers required to provide coverage to their employees. Thus, there was no need to exclude municipal and county inmates under the Act. In 1990, however, the legislature amended Mississippi Code § 71–3–5 to bring counties and municipalities under the provisions of the MWCA, but no coverage exclusion for city and county inmates attended the change. Whether any policy rationale justified excluding state prisoners but not city and county inmates from MWCA coverage is unclear.
9. The County contends that Vuncannon's eligibility does not actually hinge on his “employee” designation, but rather, on his status as a “workman” or “operative.” It cites the portion of the MWCA that defines those employers subject to the law and its requirement that five or more “workmen or operatives” regularly be in service. See Miss.Code Ann. § 71–3–5. Whether the County or any other entity was a qualifying employer is not at issue, however; the County has attempted to borrow the operative terminology from the portion of the law concerning covered employers and apply it to the portion concerning which workers are subject to the law's benefits and burdens. This statutory borrowing contravenes the clear language of the MWCA that renders compensable under the Act only the injuries of “employees.” See Miss.Code Ann. § 71–3–7.
10. Walls v. N. Miss. Med. Cntr., 568 So.2d 712, 715 (Miss.1990). Traditionally, however, these elements are not rigidly applied in workers' compensation cases. Id.
11. See Miss.Code Ann. § 71–3–3.
12. Miss. Office of Att'y Gen., Op. Ltr., 1991 WL 578135 (Miss.A.G. November 20, 1991).
13. See 3–64 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 64.03 (2012) (hereafter, “Larson's”) (collecting cases).
14. See Miss.Code Ann. § 47–1–3.
15. See Miss.Code Ann. §§ 47–1–15, 47.
16. See Mathis v. Jackson Cnty. Bd. of Supervisors, 916 So.2d 564, 570 (Miss.Ct.App.2005) (citing Sullivan v. Okolona, 370 So.2d 921 (Miss.1979)).
17. See S. Tucson v. Indus. Comm'n, 156 Ariz. 543, 549, 753 P.2d 1199 (Ariz.Ct.App.1988) (recognizing trend to require compensation for prisoners whose work was indistinguishable from that performed by other employees).
18. Larson's, supra note 7, § 64.03; see also, e.g., Benavidez v. Sierra Blanca Motors, 122 N.M. 209, 215, 922 P.2d 1205 (N.M.1996); Hamilton v. Daniel Int'l Corp., 273 S.C. 409, 257 S.E.2d 157, 158 (1979) (finding that inmate injured while on work-release acquired the rights and liabilities of a private employee because he voluntarily entered into an employment contract and enjoyed the same salary and working conditions as other employees such that he “transcended his prisoner status and became a private employee entitled to work[ers'] compensation benefits”); Courtesy Constr. Corp. v. Derscha, 431 So.2d 232, 232–33 (Fla.Dist.Ct.App.1983) (finding workers' compensation applicable to work-release prisoners engaged to work in private enterprises, since those businesses, in paying for the inmate labor, become “ ‘employers' in every practical sense of the word”).
19. See Miss.Code Ann. § 47–1–59 (“[I]f the prisoner is ineligible for state aid or the amount available for hospitalization as a state aid patient is inadequate to pay all such hospital expense of a prisoner who is financially unable to pay his own expenses, the board of supervisors of the county where the prisoner was originally confined or arrested shall, upon presentation of the certificate of the physician certifying that said prisoner was in need of hospitalization, pay from the general funds of the county the reasonable and customary charges for such services or as much thereof as is not paid by state aid.”).
PER CURIAM:
Willie Lee GARNER, also known as Willi Free I Gar'ner, Plaintiff–Appellee, v. Eileen KENNEDY, in her official capacity as Director, Region IV, Texas Department of Criminal Justice; Senior Warden Ernest Gutierrez, Jr.; Brad Livingston, Executive Director of the Texas Department of Criminal Justice; Executive Director Rick Thaler, Defendants–Appellants.
No. 11–40653.
-- April 02, 2013
Before REAVLEY, PRADO, and OWEN, Circuit Judges.Russell Joe Manning, Gene R. Ward, Esq., Hornblower Firm, Corpus Christi, TX, for Plaintiff–Appellee.James Patrick Sullivan, Esq., Assistant Solicitor General, Office of the Solicitor General, Marjolyn Carol Gardner, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Defendants–Appellants.
This case requires us to determine whether the Texas Department of Criminal Justice's policy of prohibiting prisoners from wearing beards for religious reasons violates the Religious Land Use and Institutionalized Persons Act (RLUIPA).1 After a bench trial, the district court granted declaratory and injunctive relief in favor of the plaintiff, a Muslim, to the extent that the policy prohibits him from wearing a quarter-inch beard. The defendants have appealed that ruling. We affirm.
I
Willie Lee Garner is a Texas state prisoner in the custody of the Texas Department of Criminal Justice (TDCJ). He is currently incarcerated in the McConnell Unit in Beeville, Texas. Garner claims that as a Muslim he is required to wear a beard. However, TDCJ rules prohibit most inmates, including Garner, from having a beard, and Garner has been disciplined for his failure to comply with this policy. Some inmates are allowed to grow beards up to a quarter of an inch if they have specified skin conditions. These exemptions from the general no-beard policy are known as “clipper-shave passes.” TDCJ does not issue clipper-shave passes to accommodate religious beliefs or tenets.
Garner filed a pro se complaint against a number of defendants, who we will refer to collectively as TDCJ, in the Southern District of Texas pursuant to RLUIPA and 42 U.S.C. § 1983. Garner claimed that TDCJ violated RLUIPA and his constitutional rights by prohibiting him from wearing a beard and from wearing a white head covering, known as a Kufi, to and from worship services. The district court initially denied Garner's request to appoint counsel and granted summary judgment in favor of the defendants. Garner appealed, and we reversed the district court's judgment on Garner's request for declaratory relief and injunctive relief with respect to his RLUIPA claim but affirmed in all other respects.2
On remand, the district court appointed counsel and held a bench trial on Garner's RLUIPA claims. After noting that it is not seriously contested that TDCJ's policies impose a substantial burden on Garner's religious exercises, the court concluded that TDCJ failed to discharge its burden to show that TDCJ's beard policy is the least restrictive means of furthering a compelling government interest. It therefore enjoined the defendants from enforcing the grooming policy prohibiting Garner from wearing a quarter-inch beard. However, the district court concluded that requiring an inmate to remove his Kufi and make it available for inspection when traveling to and from religious services is the least restrictive way of furthering TDCJ's compelling government interest in the safety and security of prisoners and prison staff. Therefore, the district court held that Garner was not entitled to declaratory and injunctive relief on his claim with respect to wearing his Kufi. TDCJ has appealed the district court's ruling that its grooming policy violates RLUIPA insofar as it prohibits Garner from wearing a quarter-inch beard.
II
RLUIPA provides that “no government shall impose a substantial burden on the religious exercise of a person confined in an institution, even if that burden results from a rule of general applicability,” unless the burden “is in furtherance of a compelling government interest” and “is the least restrictive means of furthering that compelling government interest.”3 The plaintiff initially bears the burden of showing that “the challenged government action substantially burdens the plaintiff's religious exercise.”4 In order to show a substantial burden, the plaintiff must show that the challenged action “truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs.”5
If the plaintiff shows that the government action imposes a substantial burden on his religious exercise, the burden then shifts to the government to show that the action was supported by a compelling interest and is the least restrictive means of furthering that compelling interest.6 However, the Supreme Court has held that although RLUIPA requires a compelling interest, “context matters,”7 and therefore the court must give “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.”8
We have not specifically addressed whether determining if a prison policy meets the requirements of RLUIPA presents a question of law or fact. At least one court has addressed this question in the RLUIPA context.9 Several courts of appeals have addressed this question with respect to the predecessor to RLUIPA,10 the Religious Freedom Restoration Act (RFRA),11 which is identical to RLUIPA for present purposes.12 These courts have generally held that whether the imposition of a burden is the least restrictive means of furthering a compelling government interest is a question of law. Because it is highly dependent on a number of underlying factual issues, we conclude that whether the imposition of a burden is the least restrictive means of furthering a compelling government interest is best characterized as a mixed question of fact and law, which is subject to de novo review.13 As always, we review questions of fact for clear error.14
III
TDCJ first argues that the district court's written opinion fails to comply with Federal Rule of Civil Procedure 52(a)(1), which requires that the district court “find the facts specially and state its conclusions of law separately.”15 Rule 52(a)(1) serves three main purposes: “1) aiding the trial court's adjudication process by engendering care by the court in determining the facts; 2) promoting the operation of the doctrines of res judicata and estoppel by judgment; and 3) providing findings explicit enough to enable appellate courts to carry out a meaningful review.”16 Rule 52(a)(1), however, is not overly burdensome-it “ ‘exacts neither punctilious detail nor slavish tracing of the claims issue by issue and witness by witness.’ “17 It requires only that the district court “issue findings with sufficient detail to enable the appellate court to consider the findings under the applicable reviewing standard.”18 We will not remand for clarification as long as “the district court's findings give the reviewing court a clear understanding of the factual basis for the decision.”19
TDCJ cites the following paragraph from the district court's opinion as most evident of the district court's error:
The Defendants also contend that allowing an exception to the no beard rule would have an economic impact. They are probably correct in assuming that if Plaintiff Garner were allowed to have a beard, other Muslim prisoners in the McConnell Unit would desire the same benefit. This could, and probably would, result in some additional expense to the TDCJ, but the evidence fails to demonstrate that it would be significant. The McConnell Unit already features barbering services for the benefit of those inmates who are allowed to maintain beards by virtue of a medical condition. These services might have to be expanded to accommodate Muslim prisoners, but the additional expense is unlikely to be exorbitant. Some additional expense would also be incurred in taking new photographs for prisoner identification cards, but some of that expense is covered by fees paid by the prisoners themselves. In short, the evidence as a whole fails to establish that the economic impact on the TDCJ would be significant.
TDCJ argues that this paragraph “leaves the reader to wonder what findings of fact are to be reviewed on appeal for clear error, if any, and what conclusions of law are to be reviewed de novo.” It argues that instead of issuing a finding of fact as to the approximate amount of expenses, the district court couched its language in the form a legal conclusion, stating that the expenses are not significant enough to frustrate Garner's RLUIPA claim.
We find no error in the form of district court's opinion. With respect to the paragraph quoted above, TDCJ's evidence concerning increased costs was vague and consisted primarily of speculation and conjecture. There was no evidence concerning concrete numbers besides testimony that a single disposable razor costs four cents while an electric clipper costs thirty-four dollars. The district court cannot be faulted for not making an exact finding with regard to costs.
More generally, the district court clearly discusses its view of the evidence presented. It found, for various reasons, that TDCJ's arguments that allowing beards poses great safety risks were unfounded, that there is at least one viable alternative to achieve easy identification of inmates, and that the costs, whatever the exact number is, would be insignificant. The district court thus concluded that “TDCJ's grooming policy does impose a substantial burden on an important aspect of the Plaintiff's exercise of his Muslim religion, and the Defendants have failed to sustain their burden of showing that the policy represents the least restrictive means of furthering a compelling government interest.” The district court's order gives us a clear understanding of the basis of its decision and its conclusions. It did not violate Rule 52(a)(1).
IV
TDCJ argues that the district court erred in holding that the no-beard policy violates RLUIPA because it is not the least restrictive means of furthering a compelling government interest. TDCJ has not challenged the finding that the policy imposes a substantial burden on Garner's religious exercise, so we do not address that issue.
Although TDCJ argued below that its policy furthers the state's interest in security because quarter-inch beards can be used to hide contraband, TDCJ does not press that argument on appeal. It advances two main arguments in this court. First, it contends that the no-beard policy advances the compelling interest in controlling costs. Second, it argues that the no-beard policy advances the compelling interest in security because the policy promotes easy identification of inmates.
In support, TDCJ cites two cases of this court, DeMoss v. Crain20 and Gooden v. Crain,21 in which we upheld the TDCJ no-beard policy as compliant with RLUIPA. In DeMoss, we held that the district court's finding that a partial or total repeal of the no-beard rule, the two alternatives proposed by the plaintiff, would impose additional costs was not clearly erroneous and that the no-beard rule was the least restrictive means of advancing the compelling government interest in security and controlling costs.22 Similarly, in Gooden, an unpublished opinion, we held that the no-beard rule furthered the compelling government interest in security and was the least restrictive means of doing so.23 The district court found that making an exception for quarter-inch beards would make identification of inmates more difficult.24 We noted, however, that Gooden offered little evidence in response to TDCJ's evidence and explicitly made “no broad holding that the grooming policy, as it applies to quarter-inch beards, will always be upheld.”25
DeMoss and Gooden are not controlling here. In both cases, the plaintiffs were pro se and there is no indication that they countered TDCJ's evidence as Garner has done. In this case, we are presented with a substantially different record. Garner disputed TDCJ's evidence: he was represented by counsel, thoroughly cross-examined all TDCJ witnesses, proposed different alternatives to the no-beard policy than have been previously offered, and presented expert testimony from a long-time prison administrator. Our decisions in DeMoss and Gooden are not controlling in light of the more-developed record and the factual findings present here that were not present in previous cases. Those cases contained no evidence or factual findings regarding other jurisdictions' beard policies or TDCJ's current policy with respect to head shaving. Nor had the district courts in those prior cases found that the state failed to show that increased costs due to a religious exemption would be significant.
A
TDCJ argues that its no-beard policy is the least restrictive means of advancing the compelling government interest in controlling costs. It is undisputed that controlling costs is a compelling government interest and that we must give deference to prison administrators.26 However, RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”27 With these principles in mind, the record reflects that TDCJ has not carried its burden of showing that its policy is the least restrictive means of advancing the interest in controlling costs.
TDCJ presented testimony from multiple witnesses that allowing quarter-inch beards for religious reasons would impose additional costs. William Stephens, the deputy director of prison and jail operations within TDCJ, who was also qualified as an expert to give his opinion on the effects of allowing Muslim inmates to wear quarter-inch beards, testified that he was concerned about the added cost of allowing beards. He noted, for example, that some large institutions currently have only one barbershop and would likely have to expand. He also testified that costs would be imposed due to greater use of barbershop equipment. Rick Thaler, the Director of the Correctional Institutions Division of TDCJ, testified that if inmates were allowed to grow quarter-inch beards, then staff would have to take more valuable time to enforce the grooming policy. Allowing beards would also require additional trips to the barbershop by each inmate. He also testified that it is expected that TDCJ's budget is going to be “extremely tight” in the near future. Finally, he testified that the option of requiring a new photo ID card when an inmate grows a beard, for which the inmate would pay an additional charge, would be costly because half of the prison population is indigent, and the volume of ID cards issued would increase significantly.
Billy Pierce, the Director of Chaplaincy Operations for TDCJ, testified about the increased burden allowing Muslim inmates to grow beards would put on chaplains. He testified that chaplains would have to verify the religious beliefs of inmates, keep lists of inmates in the faith group allowed to have a beard, continually update the list, and make sure housing areas had the list. He also testified that when certain faith groups have received special privileges in the past, the number of inmates claiming to belong to that faith group increased dramatically.
In contrast, Garner established through exhibits and testimony that the TDCJ had made no studies concerning the costs of allowing inmates to grow beards. Garner elicited testimony from Stephens that “there has not been a specific study made” with respect to cost, although “[t]here ha[ve] been some general reviews about cost .” Stephens agreed that he does not “know from an economic analysis standpoint all of the factors that would have to be considered to determine what is or is not cost effective over the long term.” Garner also elicited testimony that TDCJ already tracks inmates' expressed beliefs, although it does so on a central computer and on each inmate's housing papers, not on a list kept by the chaplains on each unit.
Based on this record, we cannot say that the district court's finding that any increased costs would be insignificant is clearly erroneous. Although there was testimony that there would be additional costs, whether due to the construction of barbershops, the purchase of barbering supplies, or the creation of new identification cards, almost all of that testimony was speculative. The Defendants admitted that no specific studies had been done other than general reviews. We recognize that it is possible that allowing quarter-inch beards could impose some administrative costs in enforcement. However, while TDCJ witnesses testified that a quarter-inch limit would be difficult to enforce, their testimony concerning these administrative costs was also speculative. For example, Thaler testified that the time for enforcement “would potentially” take time from other tasks. There is no testimony regarding what other tasks would be affected or the amount of time that would be necessary in order to enforce a limit on beard length. Furthermore, TDCJ imposes limits on hair length, requiring that it be trimmed up the back of the head and neck and be cut around the ears, and although Stephens testified that enforcement is time-consuming, there is no evidence that TDCJ would encounter greater or added difficulty if it enforced a one-quarter-inch as opposed to a clean-shaven rule.
RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.”28 TDCJ has presented testimony only that its costs would increase. It has not attempted to approximate the amount of those costs, and it has not presented any concrete evidence concerning how other operations of the prison system would be affected by these increased costs. Such speculative testimony cannot satisfy TDCJ's burden.
B
TDCJ also argues that its no-beard policy is the least restrictive means of furthering the compelling interest in security because the policy aids rapid identification of inmates. TDCJ presented testimony that if inmates were allowed to grow beards, identification would be hindered. John Moriarty, the Inspector General for TDCJ, testified that identification is important both for inmates within the prison and for capturing escaped inmates. Director Thaler testified that TDCJ had recently decided to retain its current grooming policy based largely on the fact that “the issue of positive identification of individuals as [they are moved] throughout the facility [is] a cornerstone to good correctional practice.” In his opinion, having inmates have their beards trimmed regularly at the barbershop, as is done with hair, is not an acceptable alternative because “any time you move your offender population around your institution, you subject your security process to vulnerabilities.”
Garner, on the other hand, elicited testimony that the security issues with allowing all inmates or some inmates to wear beards is not as serious as TDCJ asserts. Inmates are allowed to shave their heads, and Moriarty was not aware of any incident in which an inmate shaved his head in prison to change his appearance. In fact, he was not aware of any inmate changing his appearance after committing a crime in jail other than by changing clothes. Thaler testified that prohibiting inmates from shaving their heads had been contemplated but ultimately was not adopted as a policy, even though he agreed that an inmate shaving his head would change the inmate's appearance just as much as growing a quarter-inch beard. In addition, Garner presented the testimony of an expert witness, George Sullivan, whom the district court found has “decades of practical experience in managing correctional institutions.” Sullivan testified that, in his experience, institutions that allow beards are no less safe than those that do not. He testified that in the prison setting, it is not generally more difficult to identify an inmate with a beard because officers become familiar with the inmate. He acknowledged that it is a little more difficult in systems with larger populations, like California, Texas, and the Federal Bureau of Prisons, because of the numbers, but “if the officer is doing his job · and is paying attention to the inmates as they come in his proximity, he should have no problem at all shifting his mental gears to keep up with the appearance of inmate.” He disagreed with the argument that permitting inmates to maintain beards would pose identification difficulties.
On this record, TDCJ has not carried its burden to show that its no-beard policy is the least restrictive means of furthering the compelling government interest in security. Although TDCJ has presented evidence that allowing inmates to have beards hinders inmate identification, there was undisputed evidence that TDCJ allows inmates to shave their heads, and there was testimony that shaved heads pose just as many identification problems as allowing prisoners to grow and shave beards. TDCJ has not shown why any security concerns could not be addressed by requiring an inmate to have his identification picture changed if he grows or shaves his beard, as apparently is already required when an inmate changes his appearance in any way. As discussed above, TDCJ has not shown any reason why costs related to identification cards would be significant. One TDCJ witness admitted that requiring a new identification card to be made when an inmate grows a beard can, in a general sense, accommodate the need to identify him as he moves through the facility. We also find it persuasive that prison systems that are comparable in size to Texas's—California and the Federal Bureau of Prisons—allow their inmates to grow beards, and there is no evidence of any specific incidents affecting prison safety in those systems due to beards.
With respect to an escaped prisoner, Garner observes that nothing prohibits an escapee from changing his appearance by, for example, growing out his hair or wearing a wig. Moriarty testified that TDCJ can do nothing to prevent an inmate from changing his appearance outside of the prison. Based on the present record, we cannot say that the district court's factual findings are clearly in error.
* * *
We recognize that in applying RLUIPA, we must accord “due deference to the experience and expertise of prison and jail administrators.”29 However, based on the present record, the state has not satisfied its burden under RLUIPA. Therefore, we AFFIRM the district court's judgment.
FOOTNOTES
1. Pub.L. No. 106–274, 114 Stat. 803 (2000) (codified at 42 U.S.C. §§ 2000cc to 2000cc–5).
2. Garner v. Morales, No. 07–41015, 2009 WL 577755 (5th Cir. Mar.6, 2009) (per curiam).
3. 42 U.S.C. § 2000cc–1(a).
4. DeMoss v. Crain, 636 F.3d 145, 150 (5th Cir.2011) (per curiam) (quoting Mayfield v. Tex. Dep't of Criminal Justice, 529 F.3d 599, 613 (5th Cir.2008)) (internal quotation marks omitted).
5. Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir.2004).
6. DeMoss, 636 F.3d at 150 (citing Mayfield, 529 F.3d at 613).
7. Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005).
8. DeMoss, 636 F.3d at 150 (quoting Cutter, 544 U.S. at 723) (internal quotation marks omitted).
9. Hoevenaar v. Lazaroff, 422 F.3d 366, 368 (6th Cir.2005) ( “[W]hether the prison regulations were the least restrictive means is a question of law” (citing Lawson v. Singletary, 85 F.3d 502, 511–12 (11th Cir.1996); Hamilton v. Schriro, 74 F.3d 1545, 1552 (8th Cir.1996))).
10. See United States v. Friday, 525 F.3d 938, 949 (10th Cir.2008); United States v. Vasquez–Ramos, 522 F.3d 914, 917 (9th Cir.2008) (per curiam) (citing United States v. Hugs, 109 F.3d 1375, 1379 (9th Cir.1997) (per curiam)); Christians v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407, 1419 (8th Cir .1996), vacated & remanded, 521 U.S. 1114, 117 S.Ct. 2502, 138 L.Ed.2d 1007 (1997), reinstated in relevant part, 141 F.3d 854, 856 (8th Cir.1998); Lawson, 85 F.3d at 511–12.
11. Pub.L. No. 103–141, 107 Stat. 1488 (1993) (codified at 42 U.S .C. §§ 2000bb to 2000bb–4).
12. See Cutter, 544 U.S. at 714–16 (recounting the history of RFRA and RLUIPA). Compare 42 U.S.C. § 2000bb–1, with 42 U.S .C. § 2000cc–1.
13. See McKinley v. Abbott, 643 F.3d 403, 407–08 (5th Cir.2011) (“Last, we consider whether the Barratry Statute violates the United States Constitution's First Amendment guarantee to free speech. This is a mixed question of fact and law, which we review de novo.”).
14. DeMoss v. Crain, 636 F.3d 145, 149 (5th Cir.2011) (per curiam) (citing Cerda v.2004–DQR1 L.L.C., 612 F.3d 781, 786 (5th Cir.2010)).
15. Fed.R.Civ.P. 52(a)(1).
16. Chandler v. City of Dallas., 958 F.2d 85, 88 (5th Cir.1992) (per curiam) (citing Tex. Extrusion Corp. v. Palmer, Palmer & Coffee (In re Tex. Extrusion Corp.), 836 F.2d 217, 220 (5th Cir.1988)).
17. Burma Navigation Corp. v. Reliant Seahorse MV, 99 F.3d 652, 657 (5th Cir.1996) (quoting Schlesinger v. Herzog, 2 F.3d 135, 139 (5th Cir.1993)).
18. Id. (citing Schlesinger, 2 F.3d at 139; Collins v. Baptist Memorial Geriatric Ctr., 937 F.2d 190, 194 (5th Cir.1991)).
19. Id. (citing Interfirst Bank of Abilene, N.A. v. Lull Mfg. ., 778 F.2d 228, 234 (5th Cir.1985)).
20. 636 F.3d 145 (5th Cir.2011) (per curiam).
21. 353 F. App'x 885 (5th Cir.2009) (per curiam).
22. DeMoss, 636 F.3d at 153–55.
23. Gooden, 353 F. App'x at 887–89.
24. Id. at 889.
25. Id. at 889 n. 3.
26. DeMoss, 636 F.3d at 154 (citing Baranowski v. Hart, 486 F.3d 112, 125 (5th Cir.2007)); see also Cutter v. Wilkinson, 544 U.S. 709, 723, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (noting that Congress recognized that courts would apply RLUIPA's standard with “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” (emphasis added) (internal quotation marks omitted)).
27. 42 U.S.C. § 2000cc–3(c).
28. Id.
29. Cutter v. Wilkinson, 544 U.S. 709, 717, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) (internal quotation marks omitted).
OWEN, Circuit Judge:
Released: March 27, 2013
Next Release: April 3, 2013
Next Release: April 3, 2013
Despite recent national attention on rising domestic production of light sweet crude oil, especially from tight oil formations in North Dakota, some Midwest refiners are reconfiguring their facilities to process more heavy crude oil, which will likely come from Canada.
The refinery coking capacity in PAD District 2 (the Midwest) is set to increase significantly this year as refiners in the region focus on heavy crude oil. As this additional coking capacity comes online, Midwest refiners will be able to significantly increase runs of heavy crude, such as Western Canadian Select (WCS).
WCS currently sells at a steep discount to other crude oil benchmarks used in the United States, including West Texas Intermediate, Louisiana Light Sweet, and West Texas Sour, and processing WCS reduces refiner crude oil costs. When the additional coking capacity comes online, the average API gravity of crude runs in the region is likely to decrease and the product yield patterns are likely to change.
Coking is a thermal cracking process that converts heavy hydrocarbons such as atmospheric residuum, vacuum gasoil and residuals, and bitumen into lighter hydrocarbons such as unfinished gasoline and gasoils as well as petroleum coke and light gases. Coking allows refiners to increase gasoline and distillate yields from heavy crude oils (details).
Between 2002 and 2012, Midwest coking capacity increased from 400,000 barrels per day (bbl/d) to more than 480,000 bbl/d, an increase of about 20 percent (see chart). Three major coking unit construction projects have recently been completed or are in process in PADD 2. In November 2011, Phillips 66's Wood River, Illinois, refinery (which is jointly owned by Phillips 66 and Cenovus and operated by Phillips 66) completed the addition of a 65,000-bbl/d coker. A year later, Marathon Petroleum completed a 28,000-bbl/d coker at its refinery in Detroit, Michigan. Currently, a 102,000-bbl/d coker is under construction at BP's Whiting, Indiana, refinery and is scheduled for completion later this year.
These three cokers and related refinery projects will enable processing of 509,000 bbl/d of additional heavy crude, which likely will come from Canada. The increase in heavy crude processing is based on increasing overall refinery crude processing capacity and replacing existing runs of light crude with heavier crude.
The displaced light sweet crude, like other crude in the midcontinent, will find its way east, west, and south, moving by rail and pipeline to refineries in those regions and displacing imports of waterborne crude.
The additional heavy crude is expected to lead to decreases in average API gravity in the region. From 2010 to 2012, the average API gravity of crude runs in Indiana, Illinois, Kentucky, Tennessee, Michigan, and Ohio fell by 2 percent, going from 33.64 to 32.98 degrees.
Trade press reports indicate that additional Midwest refiners may undertake coker installation projects in the coming years. Husky's refinery in Lima, Ohio, and NCRA's McPherson, Kansas, facility are said to be considering upgrades that would expand coking capacity, which could lead to further changes in average API gravity and refinery yields in the region.
Three New Midwest Coking Projects FacilityPre-Coker Heavy Crude CapacityPost-Coker Heavy Crude CapacityHeavy Crude Processing IncreaseStart-upPhillips 66/Cenovus, Wood River, IllinoisMarathon Petroleum, Detroit, MichiganGasoline and diesel fuel prices both down for the 4th consecutive week
The U.S. average retail price of regular gasoline decreased two cents to $3.68 per gallon, down 24 cents from last year at this time. The U.S. average price has declined 10 cents over the last four weeks. Prices were lower in all regions of the nation except the Midwest, where the price is $3.66 per gallon, up a penny from last week, and the Rocky Mountain region, where the price is unchanged at $3.47 per gallon. The West Coast price is down 5 cents, and now below the $4-per-gallon mark at $3.96 per gallon. The East Coast price is $3.66 per gallon, down three cents from last week, and the Gulf Coast price declined two cents to $3.51 per gallon.
The national average diesel fuel price decreased four cents for the third consecutive week, to $4.01 per gallon, 14 cents lower than last year at this time. The U.S. average price has fallen 15 cents over the last four weeks. Prices decreased in all regions of the nation, with the largest drop on the West Coast, where the price fell six cents to $4.10 per gallon. The Gulf Coast price is a nickel lower at $3.94 per gallon. The Midwest and Rocky Mountain prices are $3.98 per gallon and $3.94 per gallon, respectively, both down four cents from last week. Rounding out the regions, the East Coast price dropped three cents to $4.05 per gallon.
Propane inventories decline
U.S. propane stocks fell 0.9 million barrels to end at 40.8 million barrels last week, and are 2.9 million barrels (6.5 percent) lower than the same period a year ago. Midwest inventories dropped by 0.5 million barrels, and Gulf Coast regional inventories declined by 0.3 million barrels. East Coast stocks dropped by 0.2 million barrels, while Rocky Mountain/West Coast inventories increased slightly. Propylene non-fuel-use inventories represented 8.2 percent of total propane inventories.
Text from the previous editions of This Week In Petroleum is accessible through a link at the top right-hand corner of this page.
Subscribe to:
Comments (Atom)
Popular post
-
If the stress in your life is more than you can cope with, get help right away. National Suicide Prevention Lifeline 1-800-273-TALK (8255) ...
-
by Salisbury52 Great game. Brings back so many good memories. The bad part is that if you are not willing to spend money on all of the extr...
-
By BY PETER EAVIS from NYT Automobiles https://ift.tt/3bXCMGb
-
Modern Combat 4 is live and ready for duty on Xbox Windows Phone 8 | Windows Phone Central Skip to main content And...
-
By BY MELISSA EDDY from NYT Automobiles https://ift.tt/NiBjVXr
-
By BY NEAL E. BOUDETTE from NYT Automobiles https://ift.tt/HRMeWX8
-
By Sopan Deb from NYT Automobiles https://ift.tt/1KMtlms
-
If the stress in your life is more than you can cope with, get help right away. National Suicide Prevention Lifeline 1-800-273-TALK (8255) ...
-
Apr 5, 2013 by The MovieWeb Team Critically-acclaimed director Danny Boyle (Slumdog Millionaire, Sunshine) returns with his latest thriller...
-
BNSF Railway Co. (BNSF) has approved a new single-year record capital commitment plan of $5 billion for 2014, a $1 billion increase over it...
