537 F.3d 1100 (9th Cir. 2008), 07-30334, United States v. Tankersley

Docket Nº:07-30334.
Citation:537 F.3d 1100
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kendall TANKERSLEY, aka Sarah Kendall Harvey; Kendall, Defendant-Appellant.
Case Date:August 12, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1100

537 F.3d 1100 (9th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kendall TANKERSLEY, aka Sarah Kendall Harvey; Kendall, Defendant-Appellant.

No. 07-30334.

United States Court of Appeals, Ninth Circuit.

August 12, 2008

Argued and Submitted May 5, 2008.

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[Copyrighted Material Omitted]

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Gail K. Johnson, Smith and West, LLC, Denver, CO, for the appellant.

Stephen F. Peifer, Assistant U.S. Attorney, Portland, OR, for the appellee.

Before: RICHARD C. TALLMAN, RICHARD R. CLIFTON, and N. RANDY SMITH, Circuit Judges.

TALLMAN, Circuit Judge:

Kendall Tankersley appeals a 41-month sentence imposed following her guilty plea to a three-count Information charging her with conspiracy to commit arson and destruction of an energy facility in violation of 18 U.S.C. § 371, aiding and abetting attempted arson in violation of 18 U.S.C. §§ 2 and 844(i), and aiding and abetting arson in violation of 18 U.S.C. § 844(i). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

From 1996 through 2001, activist groups known publicly as the Earth Liberation Front (“ELF" ) and the Animal Liberation Front (“ALF" ) committed arson and other crimes against government and private entities in several Western states. The groups' membership changed over the lifetime of the conspiracy but included as many as sixteen conspirators. Tankersley actively participated in both an attempted and a subsequently completed arson that destroyed the headquarters building of U.S. Forest Industries, Inc., a private timber company located in Medford, Oregon.

The district court imposed a sentencing enhancement for the commission of a “federal crime of terrorism," pursuant to United States Sentencing Guidelines (“U.S.S.G." or “Sentencing Guidelines" ) § 3A1.4 (2000),1 against several of Tankersley's co-defendants who targeted government property. The district court did not impose this enhancement on Tankersley because she targeted only private property. It did, however, impose a twelve-level upward departure pursuant to U.S.S.G. § 5K2.0, which had the effect of making her base offense level the same as if she had been subject to the terrorism enhancement.

Tankersley argues that her sentence is unreasonable and that the district court abused its discretion by imposing the upward departure. She argues that the terrorism enhancement should not apply to her because she did not target government property, and that the twelve-level upward departure amounts to an imposition of the

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terrorism enhancement. She argues that the district court is not empowered to depart upward based on what she frames as its disagreement with congressional policy concerning the applicability of the terrorism enhancement, and she argues that there were insufficient aggravating circumstances to remove her offense from the heartland of arson offenses.

We must decide whether a sentence outside the applicable advisory guidelines range is per se unreasonable when it is based on the district court's efforts to achieve sentencing parity between defendants who engaged in similar conduct: with some targeting government property and who were properly subject to the terrorism enhancement, and others targeting only private property who were not. We hold that such a sentence is not per se unreasonable. We also conclude that the district court did not clearly err by declining to apply a four-level downward adjustment for a minimal role in the offense. See U.S.S.G. § 3B1.2(a). In light of the district court's proper application of the statutory factors set forth in 18 U.S.C. § 3553(a), we hold that Tankersley's 41-month sentence is reasonable.

I

A

Over a five-year period beginning in October 1996 as many as sixteen individuals conspired to damage or destroy private and government property on behalf of ELF and ALF. The conspirators targeted government agencies and private entities they believed were responsible for degrading the environment through timber harvesting, cruelty to animals, and other means. The conspiracy covered multiple crimes in five Western states and resulted in tens of millions of dollars in damage.2 Following a ten-year investigation by local, state, and federal law enforcement agencies, federal indictments were returned in various United States district courts. The bulk of the prosecutions occurred in the District of Oregon with United States District Judge Ann L. Aiken presiding. After lengthy negotiations, all ten defendants agreed to proceed by way of criminal informations and pled guilty to conspiracy.

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Nine of the defendants also pled guilty to separate, substantive counts of arson and/or attempted arson. Three of those defendants have appealed their sentences. In this Opinion we address the arguments of Defendant-Appellant Kendall Tankersley.3

B

Tankersley moved to Eugene, Oregon, in 1995 to attend the University of Oregon. Soon thereafter she began participating in timber protests. In 1997, she was convicted of disorderly conduct and obstructing governmental administration after blocking a forest road and climbing onto logging trucks in protest of a timber harvest in Josephine County, Oregon. Just over a year later, Tankersley was convicted of criminal trespass and providing false information to a police officer in connection with a protest at a Union Pacific rail yard.

It was during these early acts that Tankersley met and began dating Jacob Ferguson, a leader of ELF.4She told Ferguson about logging trucks in Humboldt County, California, that they could target for arson. And, in September 1998, the two placed incendiary devices under several of these logging trucks, destroying one at a cost of $40,000. The district court considered this information as relevant conduct in fashioning Tankersley's sentence, though neither Tankersley nor Ferguson was ever charged or convicted for these crimes. The district court accepted the facts in Tankersley's Presentence Report (“PSR" ) as true.

Three months later, Tankersley, Ferguson, and co-conspirator Kevin Tubbs agreed to target U.S. Forest Industries. The three participated in a “dry run" of the arson. Tankersley hid in a nearby ditch and acted as a lookout for Tubbs and Ferguson. Based on their reconnaissance, Tubbs, Tankersley, and Ferguson decided to recruit a fourth person.

On December 22, 1998, Tubbs, Ferguson, Tankersley, and the new recruit, Rebecca Rubin, drove to Medford, Oregon, in Tubbs's van. The van contained several white, five-gallon buckets filled with fuel. Tubbs dropped Tankersley off near her lookout position. She carried a two-way radio to communicate with her three co-conspirators. After the others placed the incendiary devices and set the timing devices, they fled the scene of the crime and met Tankersley at a nearby paint store before driving back to Eugene, Oregon.

Tankersley and Ferguson began to scour newspaper articles in search of information about a fire at U.S. Forest Industries. Ferguson eventually learned that the incendiary devices had failed to ignite properly. He asked Tankersley to drive back to Medford to retrieve the devices. Although Tankersley returned to U.S. Forest Industries with another person and saw the un-ignited devices, she decided not to retrieve them.

Tankersley and Ferguson tried again on December 27, 1998. Tankersley agreed to meet Ferguson in Ashland, Oregon. She helped him gather materials to prepare new timing mechanisms for the incendiary devices. Tankersley then drove Ferguson to the neighborhood surrounding U.S. Forest Industries; she watched Ferguson's infant son in the car while Ferguson set the new timing devices on the buckets of

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fuel. This time the devices properly ignited. After Ferguson returned, Tankersley drove him and his son back to Ashland. She then drove Ferguson's son to a hotel in Dunsmuir, California, and registered in a hotel under a false name. Ferguson joined Tankersley at the hotel later that night.

The next day Tankersley returned to Eugene. She visited Tubbs at his residence, and Tubbs and Ferguson showed her a copy of a media communiqué discussing the successful fire. In mid-January, Ferguson released the communiqué, which read:

Communiqué from the ELF for 12-26-98

Happy fucking new year from the Earth Liberation Front! To celebrate the holidays, we decided on a bonfire. Unfortunately for U.S. Forest Industries, it was at their corporate headquarters office in Medford, Oregon. On the foggy night after Christmas when everyone was digesting their turkey and pie, Santa [']s ELFs dropped two five gallon buckets of diesel/unleaded mix and a one gallon jug with cigarette delays; which proved to be more than enough to get this party started. And after forty to fifty firefighters showed up to our party, they were unable to salvage anything, costing these greedy bastards half a million dollars. This was done in retribution for all the wild forests and animals lost to feed the wallets of greedy fucks like Jerry Bramwell, U.S.F.I. president. This action is payback and it is a warning, to all others responsible we do not sleep and we won't quit. For the future generations we will fight back.

After the U.S. Forest Industries fire, Tankersley helped research possible attacks on the United States Bureau of Land Management wild horse facility in Litchfield, California, and Boise Cascade Corporation's regional headquarters in Monmouth, Oregon. Although both facilities were eventually destroyed through arson, Tankersley did not further participate in setting those fires.

Tankersley abandoned her active participation in the conspiracy sometime in 1999 and moved to Arcata, California, to attend Humboldt State University. She obtained a molecular biology degree in 2004 and moved to Flagstaff, Arizona, in 2005 to apply to medical schools. On December 7, 2005, seven years after the U.S. Forest Industries arson, Tankersley was...

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