News You Can Use: Tenth Circuit reverses imposition of terrorism sentencing enhancement-U.S.S.G. § 3A1.4

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.

The appeal

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.

Takeaways

  1. 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.
  2. 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.

Preserve This! SCOTUS to decide whether crime that can be committed recklessly can qualify as a “violent felony” under ACCA

Today, the United States Supreme Court granted certiorari in Walker v United States, out of the Sixth Circuit, to decide whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. 924(e).

As the petition for certiorari explains, there is a deep and widely recognized conflict in the courts of appeals over that question.

The Tenth Circuit takes the view, like the Sixth Circuit, that offenses that can be committed recklessly can nevertheless qualify as violent felonies under ACCA’s force clause. See, e.g., United States v Hammons (for purposes of determining whether an offense constitutes a valid ACCA predicate, “it makes no difference whether the person applying the force had the specific intention of causing harm or instead merely acted recklessly”).

Make sure to preserve this issue!

Preserve This! Gorsuch and Sotomayor Express Interest in Applying Apprendi to Restitution Orders

Hester v. United States, an opinion by Justice Gorsuch (joined by Justice Sotomayor), flags an issue that defense counsel should be preserving in appropriate cases. Certiorari was denied in Hester, but the issue may attract enough votes for a grant of certiorari in the future.

The question presented in Hester was whether Apprendi v. New Jersey applies to restitution orders. Apprendi requires that a jury find beyond a reasonable doubt any fact that increases the maximum sentence for an offense. Mr. Hester maintained that Apprendi required a jury to find the facts supporting the amount of restitution that was ordered for his offense. The circuits, including the Tenth Circuit, have uniformly rejected this argument. The Supreme Court declined to review the issue in Hester, but Justices Gorsuch and Sotomayor dissented from the denial of certiorari.

Justices Gorsuch and Sotomayor not only opined that the issue was worthy of the Court’s consideration; they strongly suggested a view on the merits: that Apprendi should, indeed, apply to restitution orders. They reasoned that “the statutory maximum for restitution is usually zero, because a court can’t award any restitution without finding additional facts about the victim’s loss. And just as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it would seem to follow that a jury must find any facts necessary to support a (nonzero) restitution order.”

Justices Gorsuch and Sotomayor rejected the government’s assertion that restitution “isn’t a criminal penalty, only a civil remedy” as follows: “[T]he Sixth Amendment’s jury trial right expressly applies ‘[i]n all criminal prosecutions,’ and the government concedes that ‘restitution is imposed as part of a defendant’s criminal conviction. Federal statutes, too, describe restitution as a ‘penalty’ imposed on the defendant as a part of his criminal sentence, as do our cases.” As a coup de grâce, Justices Gorsuch and Sotomayor then invoked the Seventh Amendment: “Besides, if restitution really fell beyond the reach of the Sixth Amendment’s protections in criminal prosecutions, we would then have to consider the Seventh Amendment and its independent protection of the right to jury trial in civil cases.”

Equally telling about the merits of the government’s argument against applying Apprendi to restitution is Justice Alito’s opinion concurring in the denial of certiorari. He does not defend the lower courts’ interpretation of Apprendi but, instead, suggests Apprendi should be overruled.

Takeaways 

  • In cases where the applicability or amount of restitution is disputed, preserve an argument that Apprendi requires that the applicability and amount of restitution be determined by a jury beyond a reasonable doubt. You can preserve the argument by filing a written objection to the PSR’s recommendation that restitution be ordered and by raising the argument again at the sentencing hearing.
  • Don’t be deterred from preserving a sound argument just because the circuits have uniformly rejected it. The circuits can be (and have been) uniformly wrong!