United States v. Ansberry

• Decision Date: 23 September 2020
• Docket Number: No. 19-1048,19-1048
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. David Michael ANSBERRY, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

976 F.3d 1108

UNITED STATES of America, Plaintiff - Appellee,

v.David Michael ANSBERRY, Defendant - Appellant.

No. 19-1048

United States Court of Appeals, Tenth Circuit.

FILED September 23, 2020

Kathleen Shen, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant.

Marissa R. Miller, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with her on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before LUCERO, McHUGH, and EID, Circuit Judges.

McHUGH, Circuit Judge.

This criminal appeal arises from Defendant David Ansberry's attempt to detonate a bomb in front of the Nederland, Colorado police station. Mr. Ansberry pleaded guilty to use or attempted use of a weapon of mass destruction against a person or property in the United States, in violation of 18 U.S.C. § 2332a(a)(2). At sentencing, the parties disputed the application of three provisions contained in the United States Sentencing Guidelines: (1) whether Mr. Ansberry knowingly created a substantial risk of death or serious bodily injury to another person, which under U.S.S.G. § 2K1.4(a)(1) would create a base offense level of twenty-four; (2) whether the individual officers who came into contact with the bomb were victims, which under U.S.S.G. § 3A1.2(a) would increase Mr. Ansberry's offense level by three; and (3) whether Mr. Ansberry's offense involved a federal crime of terrorism because it was calculated to retaliate against government conduct, which under U.S.S.G. § 3A1.4 would increase his offense level by twelve and convert his criminal history category from I to VI. After holding a three-day sentencing hearing and taking testimony from ten witnesses, the district court sided with the government on all three provisions and sentenced Mr. Ansberry to 324 months in prison.

On appeal, Mr. Ansberry challenges application of each of the three guidelines provisions. We conclude the district court did not err in applying the § 2K1.4(a)(1) base offense level because the court found that Mr. Ansberry actually created a risk of death or serious bodily injury, and this finding was not clearly erroneous. But we agree with Mr. Ansberry that the court erred in applying the § 3A1.2(a) official-victim enhancement because the court impermissibly relied on relevant conduct rather than on the facts immediately related to his offense of conviction. And we agree with Mr. Ansberry that the district court erred in applying the § 3A1.4 terrorism enhancement. The court applied the terrorism enhancement on the ground that Mr. Ansberry's offense was calculated to retaliate against government conduct, but the court expressly refused to determine whether the conduct Mr. Ansberry retaliated against was objectively government conduct. The court presumably did so because it thought the enhancement applied so long as a defendant subjectively believed the conduct he retaliated against was government conduct. We hold that, for a § 3A1.4 terrorism enhancement based on the defendant's retaliation against government conduct to apply, the conduct retaliated against must objectively be government conduct. We accordingly vacate Mr. Ansberry's sentence and remand for resentencing.

I. BACKGROUND

A. Events in Nederland, Colorado

The events underlying this case began nearly half a century ago. In 1971, at the age of nineteen, Mr. Ansberry arrived in Nederland, Colorado. There, he became involved with a group of "hippies" camped outside the town, who referred to themselves with the acronym STP (likely standing for Serenity, Tranquility, and Peace) and used stickers and patches with the well-known logo of STP, the motor-oil and fuel-additive brand. Mr. Ansberry became close friends with a particular STP member named Guy Goughnor, another nineteen-year-old, who went by the nickname Deputy Dawg.

In July 1971, Mr. Goughnor and other STP members were drinking at the bar of the Pioneer Inn in Nederland, when the bar owner called the town's marshal, Renner Forbes, to remove them for creating a disturbance. After arriving, Marshal Forbes "thr[e]w [Mr.] Goughnor into the rear of the Nederland Police vehicle," "ma[d]e statements to Mr. Goughnor about leaving town and never coming back or else," and drove off. R. vol. VI at 154. Mr. Goughnor was never seen alive again, and his body was recovered approximately one month later in a remote canyon with a gunshot wound to the head.

Marshal Forbes became the primary suspect in the Boulder County Sheriff's Department's investigation into Mr. Goughnor's death. While investigators believed they could "establish[ ] definite probable cause pointing to [Marshal] Forbes" based on circumstantial evidence, they did not obtain his confession or locate physical evidence linking him to the killing. R. vol. VI at 155. They closed the investigation in November 1971, without bringing charges against anyone for Mr. Goughnor's death.

Although he was not charged, Renner Forbes lost his commission as a marshal and moved to Kansas shortly after the discovery of Mr. Goughnor's body. In 1996, over twenty-five years later, Mr. Forbes, then sixty-eight years old and living in a nursing home, confessed to killing Mr. Goughnor and later pleaded guilty to manslaughter. He was sentenced to probation due to his health and died two years later.

Twenty years after Mr. Forbes confessed to killing Mr. Goughnor, Mr. Ansberry felt "compelled to action." R. vol. II at 115. In August 2016, Mr. Ansberry arrived by bus in Nederland and immediately visited the Pioneer Inn, where Mr. Goughnor was last seen alive. He struck up a conversation with a waitress there and told her that he was in town "to take care of some old business." R. vol. VIII at 185. According to his journal, Mr. Ansberry continued to visit the Pioneer Inn, writing in one entry, "Pioneer Inn. Life goes on. No one remember[s] what happened in 71. Poor Deputy. REVENGE is called for." Id. at 266 (quotation marks omitted).

Mr. Ansberry built a bomb consisting of, among other items, a small light bulb, a cell phone, and a glass jar filled with an explosive powder called hexamethylene triperoxide diamine ("HMTD"). HMTD is a compound that bomb-makers must organically synthesize because its volatility makes it too dangerous for commercial or military use. It is extremely sensitive to heat, friction, and impact, meaning that, depending on quantity and purity, it can detonate at the slightest touch or movement. HMTD can degrade over time into chemicals that are no longer explosive. The degradation process causes heat, which itself may result in detonation of any remaining viable HMTD.

Mr. Ansberry placed his bomb in a duffle bag. In the bag, he also included a second, empty glass jar along with its lid and seal, and two metal pie pans. These items were not part of the bomb, but they could break apart and become shrapnel in an explosion. The bomb was designed so that a call to the cell phone would trigger it.

Mr. Ansberry spent the night of October 10, 2016, in Nederland in a hotel room with a view of a two-story shopping complex. The Nederland police station is located on the bottom level of the complex. On October 11, 2016, sometime before 4:45 a.m., Mr. Ansberry placed the duffle bag with the bomb inside it in front of the Nederland police station next to a sign marked "Police Parking Only" and left the area. Mr. Ansberry then called the cell phone five times and texted it twice between 4:55 and 5:15 a.m., but the bomb did not explode.

Officer Darragh O'Naullain arrived at the police station roughly two hours later at 7:00 a.m. and noticed the duffle bag sitting beside the sign. After giving the bag a cursory feel and sensing nothing suspicious, Officer O'Naullain left the bag where he found it and went to get his morning coffee. When Officer O'Naullain returned fifteen minutes later and the bag was still there, he took it into the police station and left it under a chair in the entryway. He inspected the bag shortly before 8:00 a.m. and discovered the bomb. Officer O'Naullain left the bag in the entryway, and he and two other officers evacuated eight to ten people who had since arrived at the complex.

Bomb technicians from local and federal agencies arrived and, over the course of the day, worked to neutralize the bomb. Using a robot, they retrieved the duffle bag from inside the police station, pulled the contents out of it, and dumped them nearby in the parking lot. During this process, the bomb—including the glass jar containing HMTD—was swung about, banged against the robot's camera, pulled out of the bag, and dropped onto pavement. It did not explode. Bomb technicians also emitted a laser at the glass jar to determine its contents. After determining that the jar contained HMTD, the technicians placed sandbags around the jar and fired a steel slug into it, causing the contents to explode. The explosion ripped the sandbags to shreds.

Federal agents later arrested Mr. Ansberry at a Chicago airport. They found two STP stickers in his luggage. These stickers matched an STP sticker investigators found affixed to the window of a business that shares a wall with the Nederland police station, on which Mr. Ansberry had written, "RIP Deputy Dawg. 7-17-71. Murdered by Town Marshal." R. vol. I at 281–85; R. vol. VIII at 253–54.

B. District Court Proceedings

A grand jury indicted Mr. Ansberry on one count of use or attempted use of a weapon of mass destruction against a person or property in the United States in violation of 18 U.S.C. § 2332a(a)(2). Mr. Ansberry notified the district court that he intended to plead guilty, without a plea agreement, to the sole count in the indictment. In his written plea statement, he defined the elements of the offense as the "attempt to use" a statutorily-defined destructive device "against property within the United States." R. vol. I at 124 (emphasis added). As a factual basis for his plea, Mr. Ansberry admitted,...