Summaries of Selected Opinions, 1220 COBJ, Vol. 49, No. 11 Pg. 88
| Position | Vol. 49, 11 [Page 88] |
US COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 19-1048. United States v. Ansberry. 9/23/2020. D.Colo. Judge McHugh US Sentencing Guidelines—Substantial Risk of Death or Serious Bodily Injury—Attempted Use of a Weapon of Mass. Destruction—Terrorism.
Defendant was living in Nederlarid, Colorado in 1971 when his friend was found murdered. No charges were filed at the time, but in 1996 the former town marshal confessed to the murder. In 2016, defendant returned to Nederland because he felt "compelled to action." He constructed a homemade bomb and placed it in a duffel bag in the parking lot of a retail center close to the Nederland Police Office. Defendant attempted to detonate the device remotely several times around 5 a.m., but it failed to detonate. Several hours later, a Nederland police officer found the duffel bag and determined it contained a bomb. Bomb squads detonated the bomb after several attempts. Federal agents later arrested defendant at a Chicago airport.
Defendant pleaded guilty to 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). 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." At the plea hearing, defendant explained he was pleading guilty to attempting to detonate a destructive device that was not capable of causing mass destruction or mass casualties in a deserted shopping center. Following an evidentiary sentencing hearing, the district court assigned defendant a total offense level of 36 and a criminal history category of VI, and sentenced him to 324 months in prison.
On appeal, defendant argued that the district court abused its discretion by setting his base offense level at 24 because the district court found only that he intended to create a risk without finding he actually created that risk. Under U.S. Sentencing Guideline (USSG) § 2Kl.4(a)(1)(A), a sentencing court is to set the base offense level at 24 if the offense knowingly created a substantial risk of death or serious bodily injury to any person other than a participant in the offense. Here, the district court expressly found that defendant actually created the requisite risk. Further, there was sufficient evidence that defendant created a substantial risk of death or serious bodily injury, including expert testimony that the bomb was capable of detonating. Therefore, the district court did not clearly err in finding that defendant created a substantial risk.
Defendant also argued that the district court erred by basing the USSG § 3Al.2(a) official victim enhancement on conduct related to the offense rather than on facts immediately related to his offense of conviction. The enhancement does not apply to an offense against property or to any other offense unless the facts immediately related to the offense, not any additional relevant conduct, support its application. Here, based on the plea, the facts immediately related to the offense of conviction were that defendant attempted to use a destructive device against property in the early hours of the morning. However, the district court reasoned that defendant victimized police officers because he left the bomb where a police officer could pick it up. Therefore, the court did not limit its analysis to only the facts immediately related to defendant's offense, and it erred in considering additional related conduct.
Defendant further argued that the district court erred in applying the terrorism enhancement The USSG § 3A1.4 terrorism enhancement can be applied only if the conduct against which a defendant retaliates is objectively government conduct. Here, despite evidence that the conduct defendant retaliated against was not objectively government conduct, the district court applied the enhancement while refusing to find whether the targeted conduct objectively constituted government conduct. Accordingly, the district court reversibly erred. The sentence was vacated and the case was remanded for resentencing.
Nos. 18-2164 &2167. United States v. Abouselman. 9/29/2020. D.N.M. Judge Ebel. Pueblo Water Rights—Aboriginal Water Rights—Extinguishment by Sovereign Authority—Interlocutory Appeal.
This litigation began in 1983 as an action to allocate water rights of the Pueblos of Jemez, Santa Ana, and Zia in the Jemez River in New Mexico. The litigation...
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