In United States v. Ansberry, the Tenth Circuit, in a case of first impression, reversed the imposition of the terrorism sentencing enhancement—U.S.S.G. § 3A1.4—that added a whopping 12 levels to the defendant’s offense level and boosted his criminal history category from I to VI.
The background facts
In 1971, David Ansberry, then 19 years old, moved to Nederland, Colorado and fell in with a group of “hippies.” One of the group members, Guy Goughnor, got rowdy in a bar one night and was escorted out by Town Marshal Renner Forbes. Mr. Goughnor was never again seen alive and his body was later found in a remote canyon. He had been shot in the head. The Boulder County Sherriff’s Department suspected Forbes but was unable to build a case and never brought charges. But 25 years later, Forbes confessed and was convicted of manslaughter. He was sentenced to probation.
By then, Mr. Ansberry had long since moved on from Nederland. But in 2016 he returned to avenge his friend’s death. At around 5 am one morning, Mr. Ansberry placed a would-be homemade bomb – consisting of (among other things) a light bulb, a cell phone, and an explosive powder called HMTD – outside the police department. The bomb was supposed to go off when Mr. Ansberry called the phone, but it didn’t work. After trying unsuccessfully to detonate the device, Mr. Ansberry skipped town, leaving the defective bomb in front of the police department. Officers found it hours later. Using a robot, they swung it around and dropped it on the pavement, but the bomb wouldn’t go off. They finally got it to detonate by firing a steel slug at it.
The federal prosecution and the sentencing objections
The government charged Mr. Ansberry with one count of using or attempting to use a weapon of mass destruction against a person or property. Mr. Ansberry pleaded guilty without a plea agreement. He admitted only to attempting to use a destructive device against property, not a person, when he attempted to set off the bomb early in the morning.
Mr. Ansberry raised numerous objections at sentencing. Among other things, counsel objected to a three-level, official-victim enhancement (U.S.S.G. § 3A1.2) and also to a terrorism enhancement (U.S.S.G. § 3A1.4). Together, these two enhancements dramatically increased his guidelines range from 41-51 months, to 324-405 months. The district court overruled the objections and sentenced Mr. Ansberry to 324 months—or 27 years—imprisonment.
Mr. Ansberry appealed, and the Tenth Circuit vacated the sentence. Judge McHugh, writing for a panel that included Circuit Judges Lucero and Eid, found the district court made two reversible mistakes.
First, the Tenth Circuit held the official-victim enhancement should not have been applied. The district court had applied the enhancement on the theory that Mr. Ansberry had victimized the officers who discovered the defective bomb hours after he had tried to detonate it. But although leaving the bomb for others to find may have constituted relevant conduct within the meaning of the guidelines, the official-victim enhancement – unlike nearly all others – requires that an official be victimized by the conduct comprising the “offense of conviction,” that is, the conduct that satisfies the elements of the offense. And here, Mr. Ansberry had pleaded guilty only to attempting to damage property, which occurred only during the several minutes he tried unsuccessfully to set off the bomb.
Second, the Tenth Circuit found that the district court erred in imposing the terrorism enhancement that so drastically increased Mr. Ansberry’s guideline range. The district court had found that the enhancement applied because Mr. Ansberry’s offense was, in the words of the guideline, “calculated to retaliate against government conduct.” Counsel below had argued that, whatever Mr. Ansberry thought he was doing, he wasn’t retaliating against government conduct because Town Marshal Forbes had not been acting as a government official when he murdered Mr. Ansberry’s friend. The district court refused to make a finding one way or another on this because, in her view, all that mattered was Mr. Ansberry’s subjective belief that he was retaliating against government conduct. Mr. Ansberry argued that this was wrong – that the enhancement could only be applied if the conduct Mr. Ansberry was retaliating against was objectively governmental in nature. Again, the circuit agreed.
- Preserve, preserve, preserve! Mr. Ansberry’s lawyers meticulously raised and preserved each of the challenges to his guidelines calculations. Thanks to this careful lawyering, Mr. Ansberry didn’t face the hurdle of overcoming the plain-error standard on appeal. Even if the district court isn’t persuaded by your arguments, the Tenth Circuit may be.
- Pay attention to the plain language of the guidelines. Ultimately, both successful arguments came down to the plain language of the guidelines—what is the “offense of conviction,” and what does it mean to “retaliate against government conduct”? Especially when you are dealing with less-common guideline provisions, consider whether the plain language really applies to your client’s case.