U.S. v. Hunter

• Decision Date: 02 December 2008
• Docket Number: No. 08-4010.,08-4010.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mackenzie Glade HUNTER, Defendant-Appellee. Sue Antrobus; Ken Antrobus, Movants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

548 F.3d 1308

UNITED STATES of America, Plaintiff-Appellee, v. Mackenzie Glade HUNTER, Defendant-Appellee Sue Antrobus; Ken Antrobus, Movants-Appellants.

No. 08-4010.

United States Court of Appeals, Tenth Circuit.

December 2, 2008.

Paul G. Cassell, University of Utah College of Law, Salt Lake City, UT (Brigida Benitez and P. Davis Oliver, Wilmer Cutler Pickering Hale & Dorr, LLP, Washington, DC; Gregory C. Skordas and Rebecca C. Hyde, Skordas, Caston & Hyde, LLC, Salt Lake City, UT, with him on the briefs), appearing for Appellants.

Michael A. Rotker, Assistant United States Attorney, United States Department of Justice, Washington, DC (Brett L. Tolman, United States Attorney, Salt Lake City, UT and Diana Hagen, Assistant United States Attorney, Office of the United States Attorney for the District of Utah, Salt Lake City, UT, with him on the brief), appearing for Appellee United States of America.

Scott Keith Wilson, Assistant Federal Defender (Steven B. Killpack, Utah Federal Defender, and Parker Douglas, Assistant Federal Defender, Office of the Federal Public Defender for the District of Utah, Salt Lake City, UT, with him on the brief), appearing for Appellee Mackenzie Glade Hunter.

Before TACHA and HARTZ, Circuit Judges, and DeGIUSTI,^* District Judge.

TACHA, Circuit Judge.

The Appellants are the parents of Vanessa Quinn, who was shot and killed by Sulejman Talovic in Salt Lake City on February 12, 2007. Mr. Talovic purchased the gun that killed Ms. Quinn from Mackenzie Glade Hunter, who pleaded guilty to unlawfully transferring a firearm to a juvenile and being a drug user in possession of a firearm. In the district court the Appellants, Ken and Sue Antrobus, moved for Ms. Quinn to be declared a victim of Mr. Hunter's crime of selling the gun. That designation would have given the Antrobuses certain enumerated rights under the Crime Victims' Rights Act of 2004 ("CVRA"), see 18 U.S.C. § 3771, including the right to be heard at Mr. Hunter's sentencing hearing and the right to restitution. 18 U.S.C. § 3771(a)(4), (a)(6). The district court denied the motion, concluding that Ms. Quinn was not a victim of Mr. Hunter's crime as that term is defined in the CVRA. The Antrobuses petitioned this court for a writ of mandamus, as set forth under the CVRA, to contest the district court's order. See 18 U.S.C. § 3771(d)(3). We denied the writ. In re Antrobus, 519 F.3d 1123, 1126 (10th Cir.2008).

After the district court sentenced Mr. Hunter to fifteen months' imprisonment, the Antrobuses filed a timely notice of appeal from his judgment of conviction and sentence. We hold that individuals claiming to be victims under the CVRA may not appeal from the alleged denial of their rights under that statute except through a petition for a writ of mandamus as set forth by 18 U.S.C. § 3771(d)(3). Therefore, we DISMISS this appeal.

I. BACKGROUND

Sometime during the summer of 2006, Mr. Hunter sold a handgun to Mr. Talovic, who at the time was seventeen years old. On February 12, 2007, Mr. Talovic entered the Trolley Square Shopping Center in downtown Salt Lake City, armed with the handgun from Mr. Hunter, a shotgun, and ammunition for both. Firing the weapons, he killed one person outside the mall and four more inside the mall. Ms. Quinn, who had been shot twice with the handgun, was one of these victims. Four other people were seriously wounded. Mr. Talovic's rampage ended when an off-duty police officer shot and killed him.

On May 16, 2007, a federal grand jury indicted Mr. Hunter on two felony counts: being a drug user in possession of a firearm, see 18 U.S.C. § 922(g)(3), and unlawfully transferring a firearm to a juvenile when knowing or having reason to know that the juvenile intended to use the firearm in committing a crime. See 18 U.S.C. § 922(x)(1); id. § 924(a)(6)(B)(ii). Pursuant to a plea agreement, Mr. Hunter pleaded guilty to the first count and to a new information that charged him with unlawfully transferring a firearm to a juvenile (without any allegation about knowledge), a misdemeanor. See 18 U.S.C. § 922(x)(1); id. § 924(a)(6)(B)(i). The government agreed to drop the second count, to recommend that Mr. Hunter receive full credit for acceptance of responsibility, and to recommend that Mr. Hunter be sentenced at the low end of the range set forth by the United States Sentencing Guidelines. The district court accepted the agreement in November 2007 and set sentencing for January 14.

On December 13, the Antrobuses moved under the CVRA for Ms. Quinn to be recognized as a victim of Mr. Hunter's unlawful transfer of a firearm. As the guardians of their deceased daughter, they sought, inter alia, the right to make a victim-impact statement and the right to restitution.¹ See 18 U.S.C. § 3771(a), (d)(3). Under the CVRA, a "crime victim" is one who is "directly and proximately harmed as a result of the commission of a Federal offense." Id. § 3771(e).

The district court concluded that Ms. Quinn was not a victim of Mr. Hunter's criminal gun sale and therefore denied the Antrobuses' motion. The district court reasoned that the unlawful sale was not the proximate cause of Ms. Quinn's death because it was not foreseeable that Mr. Talovic would use the gun in that manner. The court also noted the approximately eight month gap between the gun sale and Mr. Talovic's shooting spree.

The Antrobuses then applied for a writ of mandamus under the CVRA, see 18 U.S.C. § 3771(d)(3), asking this court to declare their daughter a victim of Mr. Hunter's unlawful gun sale. In re Antrobus, 519 F.3d 1123, 1123 (10th Cir.2008). Applying the mandamus standard of review, this court stated the Antrobuses' right to the writ was not "clear and indisputable." Id. at 1126. Therefore, we denied the writ. Id.

On January 14, 2007, the district court sentenced Mr. Hunter to fifteen months in prison and dismissed Count 2 of the indictment, pursuant to the plea agreement. Neither the government nor Mr. Hunter appealed. The Antrobuses, however, filed a timely notice of appeal. Their brief states that they are appealing "from the conviction and judgment entered by the [d]istrict [c]ourt ... sentencing Mackenzie Glade Hunter to 15 months in prison, as well as the district court's denial of their motion to recognize Vanessa Quinn as a `victim' under the Crime Victims' Right[s] Act." The government, supported by Mr. Hunter, moved to dismiss the appeal because the Antrobuses were not parties to the underlying criminal proceeding and therefore had no right to appeal from it. In the alternative, the government urges us to affirm the district court's order. For the reasons explained below, we dismiss.

II. DISCUSSION

A crime victim does not have an express right under the CVRA to appeal the defendant's conviction and sentence based on alleged violations of the statute. Rather, the CVRA provides that if the district court denies a crime victim his rights, the victim may immediately petition the court of appeals for a writ of mandamus. 18 U.S.C. § 3771(d)(3). The court of appeals must grant or deny the writ within seventy-two hours. Id. The government, however, may assert the victim's rights in any appeal of the defendant's conviction or sentence. See id. § 3771(d)(4) ("In any appeal in a criminal case, the Government may assert as error the district court's denial of any crime victim's right in the proceeding to which the appeal applies."); see also In re Antrobus, 519 F.3d at 1129 ("While the CVRA provides individuals seeking review of a district court's `victim status' decision with mandamus review, it simultaneously affords the government with the ability to obtain ordinary appellate review of the same decision.").

That the CVRA does not provide for victim appeals is consistent with the well-established precept that "only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment." Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988). See also United States v. Wade, 992 F.Supp. 6, 10 (D.D.C.1997) ("It is a general rule that non-parties ... may not appeal a criminal sentence awarded another."). According to the government, this is not simply a prudential consideration that delimits the rights of litigants; rather, it is a jurisdictional bar that "inheres" in 28 U.S.C. § 1291. Thus, the government argues that we do not have jurisdiction under § 1291 and must dismiss the Antrobuses' appeal on that basis.

The government's jurisdictional argument misses the mark. Section 1291 limits our appellate jurisdiction to "all final decisions of the district courts." It constrains what may be appealed, not who may bring such appeals. See Bode v. Clark Equip. Co., 807 F.2d 879, 880-81 (10th Cir.1986) ("That appellant is a nonparty does not affect our consideration whether the ... order is appealable [as a final judgment]. Whether a nonparty may appeal, either from an interlocutory order or from a final judgment, is a separate question."). We therefore disagree with the government's position that we lack jurisdiction under § 1291 to consider this appeal.

The Antrobuses' central argument misses the mark for a similar reason. The format of their argument for a right to appeal traces our decision in United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc). In Hahn, we held that a defendant who waived his rights under a specific sentencing statute had not waived his general right of appeal under § 1291. Id. at 1321. We stated that a specific statute does not repeal a more general statute "absent a clearly expressed congressional intention." Id. (quoting Branch v. Smith, 538 U.S. 254, 273, 123 S.Ct. 1429, 155 L.Ed.2d 407 (2003)).

The Antrobuses argue that we have jurisdiction to hear their appeal under 28 U.S.C. § 1291, and they rely on Hahn in asserting that the CVRA's mandamus provision does not repeal the jurisdictional grant of § 1291. That argument fails, however, because it is based on the...