United States v. Ansberry

976 F.3d 1108

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 23, 2020
• Docket: 19-1048
• Status: Published

Opinion

FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS September 23, 2020 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 19-1048

DAVID MICHAEL ANSBERRY,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CR-00341-CMA-1) _________________________________

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

2 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

3 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.

4 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

5 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.

6 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, in relevant part:

Between 4:56 a.m. and 5:14 a.m. on October 11, 2016, [Mr.] Ansberry made several calls on a cellular phone in an attempt to detonate a small destructive device that was in a backpack outside of the police station in Nederland, Colorado. The device failed to detonate. . . . [T]he destructive device was not intended to cause casualties or mass destruction.

Id. at 125–26.

At the plea hearing, Mr. Ansberry acknowledged he was charged in the

indictment with a violation of 18 § U.S.C. 2332a and confirmed he was pleading

guilty to that charge. He also confirmed that his and the government’s factual bases

7 for the guilty plea differed and that he was admitting to only the facts set out in his

own statement. He further explained he was pleading guilty to “attempting to

detonate a destructive device in a deserted shopping center between 4:55 a.m. and

5:15 a.m.[,] . . . which was not capable of causing mass destruction[ or] mass

casualties.” R. vol. IX at 87–88. When asked to state the elements of the offense, the

prosecutor employed Mr. Ansberry’s version of them, stating that the government

would have to prove Mr. Ansberry attempted to use a destructive device against

property within the United States. 1 Mr. Ansberry then pleaded guilty to the charge in

the indictment, and the district court adjudged him guilty of a violation of

§ 2332a(a)(2) as charged in the indictment.

At sentencing, there were three main disputes, all regarding application of the

sentencing guidelines. First, the government argued that Mr. Ansberry’s base offense

level was twenty-four under U.S.S.G. § 2K1.4(a)(1) because the offense involved the

attempted destruction of a government facility or place of public use or, alternatively,

because Mr. Ansberry knowingly created a substantial risk of death or serious bodily

injury to a person other than himself. See U.S.S.G. § 2K1.4(a)(1). Mr. Ansberry

argued that § 2K1.4(a)(1) should not apply. He contended that he attempted only to

detonate a small bomb, which turned out to be non-functional, in an empty parking

lot near businesses that were closed at the time. He therefore claimed he did not

knowingly create a substantial risk of death or serious injury to any person. Instead,

1 The government also made a notation on Mr. Ansberry’s written plea statement indicating that it agreed with his version of the offense’s elements. 8 in Mr. Ansberry’s view, the highest base offense level that could apply under

§ 2K1.4(a) was level twenty because his offense might be said to have endangered a

place of public use; he further argued that an even lower base offense level of sixteen

could be appropriate under § 2K1.4(a)(4) because a parking lot is not a place of

public use, as that term is used in the guideline. See U.S.S.G. § 2K1.4(a)(2)(C), (4).

Second, the government sought a three-level official-victim enhancement,

under U.S.S.G. § 3A1.2(a), because Nederland police, and particularly Officer

O’Naullain, were victims of Mr. Ansberry’s crime who were targeted based on their

status as police officers. See U.S.S.G. § 3A1.2(a). Mr. Ansberry argued that

§ 3A1.2(a) does not apply because it requires an individual, not an organizational,

victim; because he specifically pleaded guilty to attempting to use a destructive

device against property, not against any person; and because there is no evidence that

he intended to victimize any individual.

Third, the government sought a terrorism enhancement under U.S.S.G.

§ 3A1.4, which would have the effect of increasing Mr. Ansberry’s offense level by

twelve and converting his criminal history category from I to VI. See U.S.S.G.

§ 3A1.4. The government argued the terrorism enhancement applied because Mr.

Ansberry’s offense was calculated to influence or affect government conduct and to

retaliate against government conduct, namely the 1971 killing of Guy Goughnor by

Marshal Forbes. See id.; see also 18 U.S.C. § 2332b(g)(5). Mr. Ansberry argued the

terrorism enhancement was not applicable because he did not intend to retaliate

against the police but instead acted only to remind the public about the plight of his

9 friend, because his actions did not meet the definition of retaliation, and because his

conduct does not fit the kind of terrorist activities that the enhancement was designed

to punish. Mr. Ansberry also argued against a § 3A1.4 enhancement on the ground

that judicial factfinding should not be employed to increase a sentence to a term that

would otherwise be substantively unreasonable.

The parties’ arguments on these three guidelines provisions resulted in

dramatically different calculations of the applicable guidelines range. Accepting the

government’s position on all three issues would result in a range of 324 to 405

months’ imprisonment, while Mr. Ansberry argued for a range of 24 to 30 months’

imprisonment based on a base offense level of twenty, with no enhancements.

The district court agreed with the government on all three guidelines issues.

The court determined that the base offense level was twenty-four pursuant to

§ 2K1.4(a)(1)(A) because Mr. Ansberry knowingly created a substantial risk of death

or serious injury to at least Officer O’Naullain. The court determined that the

§ 3A1.2(a) official-victim enhancement applied because Mr. Ansberry specifically

targeted individual employees of the Nederland police department in retaliation for

Marshal Forbes’s killing of Mr. Ansberry’s friend, Mr. Goughnor. The court also

determined that the § 3A1.4 terrorism enhancement applied because Mr. Ansberry

intentionally targeted the Nederland police station and because his offense was in

retaliation for his friend’s killing by the town’s marshal. Thus, the court assigned

Mr. Ansberry a total offense level of thirty-six and a criminal history category of VI,

resulting in a guidelines range of 324 to 405 months in prison. After considering

10 Mr. Ansberry’s arguments regarding the 18 U.S.C. § 3553 factors, the court imposed

a sentence of 324 months’ imprisonment.

II. DISCUSSION

On appeal, Mr. Ansberry challenges the district court’s application of each of

the three sentencing guidelines provisions the parties disputed at sentencing. “We

review the district court’s application of the Sentencing Guidelines for abuse of

discretion.” United States v. Rodriguez, 945 F.3d 1245, 1248 (10th Cir. 2019). “In

applying that standard, we review questions of law de novo and factual findings for

clear error, ‘giving due deference to the district court’s application of the Guidelines

to the facts.’” Id. at 1249 (quoting United States v. Pentrack, 428 F.3d 986, 989 (10th

Cir. 2005)). “‘Determination of whether facts satisfy a prescribed standard is a mixed

question of fact and law.’” United States v. Patton, 927 F.3d 1087, 1101 (10th Cir.

2019) (alterations omitted) (quoting Campbell v. Bartlett, 975 F.2d 1569, 1574 (10th

Cir. 1992)). “‘We review mixed questions under the clearly erroneous or de novo

standard, depending on whether the mixed question involves primarily a factual

inquiry or the consideration of legal principles.’” Id. (quoting United States v.

Kinslow, 105 F.3d 555, 557 (10th Cir. 1997)).

A. Section 2K1.4(a)(1)(A) Base Offense Level

Mr. Ansberry first argues that the district court abused its discretion by setting

his base offense level at twenty-four under § 2K1.4(a)(1)(A). Under that guideline, a

sentencing court is to set the base offense level at twenty-four if the offense “created

a substantial risk of death or serious bodily injury to any person other than a

11 participant in the offense, and that risk was created knowingly.” U.S.S.G.

§ 2K1.4(a)(1)(A). Mr. Ansberry advances a twofold argument on appeal. He contends

the court wrongly interpreted § 2K1.4(a)(1)(A) to require only that he intended to

create that risk when § 2K1.4(a)(1)(A) requires that he actually created a risk. And,

according to Mr. Ansberry, even if the court had found he actually created a risk, no

evidence supports that finding because his bomb was incapable of detonating or

causing death or serious injury.

1. The district court found Mr. Ansberry actually created a risk.

Mr. Ansberry argues that application of § 2K1.4(a)(1)(A) requires a sentencing

court to find the defendant actually created a risk of serious bodily injury or death,

not merely that he intended to create such a risk. Here, Mr. Ansberry asserts the

district court found only that he intended to create such a risk, without finding he

actually created that risk. 2 See United States v. Young, 893 F.3d 777, 780 (10th Cir.

2 Mr. Ansberry did not raise this argument in the district court. When the court addressed the issue of intent at the sentencing hearing, Mr. Ansberry did not argue that the court could not rely on evidence of his intent (whether solely or in combination with other evidence) and did not otherwise object on this basis. In fact, when the court invited argument, defense counsel claimed § 2K1.4(a)(1)(A) should not apply in part because Mr. Ansberry had intentionally designed, crafted, and placed the bomb to avoid injuring anyone. Normally, under these circumstances, we might consider whether the argument has been adequately preserved. See Fed. R. Crim. P. 51(b); United States v. Martinez-Barragan, 545 F.3d 894, 899 (10th Cir. 2008). However, under the unforeseeable-error doctrine, “we have held that a defendant is not required to object when the sentencing court commits an error that the defendant cannot be expected to anticipate.” Martinez-Barragan, 545 F.3d at 899. Here, it appears the issue of intent was first raised by the district court at the sentencing hearing and, arguably, defense counsel lacked an opportunity to prepare to address it. To the extent the unforeseeable-error doctrine remains good law, see id. at 899 n.1, it might except Mr. Ansberry’s argument from the normal rules of waiver. 12 2018) (explaining that U.S.S.G § 3C1.2 enhancement for recklessly creating a

substantial risk of death or serious bodily injury while fleeing from law enforcement

“applies only when a defendant actually creates a substantial risk” (emphasis

added)). While we agree the guideline requires an actual risk, we reject

Mr. Ansberry’s claim that the court did not find he actually created a substantial risk

because it is not borne out by the record. 3

Before the parties presented their arguments at the sentencing hearing, the

court provided a preliminary explanation of its understanding of the evidence and

relevant law, focusing primarily on whether Mr. Ansberry’s bomb was capable of

detonating and whether, if detonated, it was likely to cause injury. Addressing the

base offense level specifically, the court explained the mere fact that, due to fortuity,

the bomb did not detonate or cause injury was not dispositive regarding whether the

bomb created a substantial risk. In support of its view regarding fortuity, the court

cited United States v. Honeycutt, 8 F.3d 785 (11th Cir. 1993), for the proposition that

Mr. Ansberry’s “state of mind . . . at the time he placed the device” was “at issue”

rather than “the actual results of his actions.” R. vol. VIII at 381; see also id. at 393.

But because neither party addresses waiver and because Mr. Ansberry’s argument is otherwise meritless, we ultimately decline to resolve the issue of waiver. See id. at 899; see also United States v. Ramirez, 528 F. App’x 915, 917 n.1 (10th Cir. 2013). 3 To be sure, the district court’s focus on Mr. Ansberry’s state of mind is concerning in light of Young’s clear instruction that the relevant inquiry is whether there was an actual risk. See United States v. Young, 893 F.3d 777, 780 (10th Cir. 2018). But viewing the record in its entirety, we are convinced the district court ultimately made the necessary finding of actual risk. 13 Following its preliminary explanation, the district court invited argument from,

and engaged in a lengthy colloquy with, defense counsel. The discussion largely

concentrated on the issue of fortuity, i.e., whether the bomb’s failure to detonate or

cause injury was due to fortuity or to something else, such as its design, construction,

or location. Defense counsel argued not only that the bomb was incapable of

detonating but also that Mr. Ansberry had intentionally designed, built, and placed

the bomb in an effort to avoid injuring anyone. The court, however, questioned how

this argument squared with Mr. Ansberry’s calling and texting of the cell phone,

which the court saw as indicating an intent to detonate the bomb in an area where it

could have caused injury.

After hearing from counsel, the district court announced its decision. The court

found that Mr. Ansberry purposefully created a bomb with HMTD, knowing of its

“explosive potential power” and “instability” and thus the “potential risk” of an

HMTD bomb. Id. at 396–97. Because Mr. Ansberry left the bomb in a public

location, knowing that anyone might come into contact with it, the court expressly

found that Mr. Ansberry knowingly “plac[ed] those individuals [who came into

contact with it] at a substantial risk of death or serious bodily injury.” Id. at 397.

Specifically, the court found that Officer O’Naullain, who “unknowingly picked up”

the bomb, “was at risk of death or serious bodily injury when he did this.” Id. at 397–

98. Accordingly, the court applied a base offense level of twenty-four pursuant to

§ 2K1.4(a)(1)(A).

14 As we read the record, the district court expressly found that Mr. Ansberry

actually created the requisite risk, not merely that he intended to do so. Indeed, there

can hardly be a clearer finding on this point than the court’s determinations that

Mr. Ansberry’s offense “plac[ed] . . . individuals at a substantial risk of death or

serious bodily injury” and that, because of the offense, Officer O’Naullain “was at

risk of death or serious bodily injury.” R. vol. VIII at 397–98. Mr. Ansberry’s

assertion that the district court failed to find that he actually created the risk simply

misreads the record.

Mr. Ansberry’s attempt to bypass the district court’s express finding that he

actually created a substantial risk by pointing to the court’s references to his intent is

also unavailing. The court’s references to intent occurred almost entirely in its

preliminary statement and in the extended colloquy with defense counsel. When

announcing its decision, however, the court focused on the bomb’s potential for

detonating and causing injury and on Mr. Ansberry’s knowledge of that potential.

The court’s explanation for its substantial-risk finding included only a single, oblique

reference to Mr. Ansberry’s intent. See id. at 398 (“Mr. Ansberry left that bomb out

there for anybody to come into contact with, and it was come into contact with by the

police department, and a police officer, which was his intent.”).Contrary to Mr.

Ansberry’s characterization, the record fairly supports the conclusion that the court

found Mr. Ansberry actually created the requisite risk. And the court’s attenuated

comments regarding intent are insufficient for Mr. Ansberry to meet his burden of

demonstrating error based on the record. See United States v. Pulham, 735 F. App’x

15 937, 945–46 (10th Cir. 2018) (where the “record fairly supports the conclusion” that

a sentencing court engaged in permissible factfinding, the court’s “isolated comments

. . . arguably suggest[ing]” it engaged in impermissible factfinding is not enough for

a defendant to meet his burden to show a sentencing error on appeal). 4

2. The district court did not clearly err in finding that Mr. Ansberry created a substantial risk.

Mr. Ansberry next argues that, even if the district court found he actually

created a substantial risk, the court erred in making this finding. First, he argues the

court failed expressly to make certain predicate findings necessary to establish that

he actually created a substantial risk. He points out, for instance, that the court never

expressly found that the bomb was capable of detonating or that, if detonated, it was

capable of seriously injuring or killing anyone. In Mr. Ansberry’s view, such express

findings are required to support the court’s ultimate finding that his offense created a

substantial risk for purposes of § 2K1.4(a)(1)(A).

This argument misapprehends the nature of our review. Correct application of

§ 2K1.4(a)(1)(A) requires a sentencing court to find that the offense “created a

substantial risk of death or serious bodily injury.” U.S.S.G. § 2K1.4(a)(1)(A). It is

this finding we review for clear error based on the evidence in the record. See United

States v. Dillon, 351 F.3d 1315, 1318 (10th Cir. 2003) (“[U.S.S.G. § 2Q1.2(b)(2)]

requires the district court to make the finding that the offense resulted in a substantial

4 Because the issue is not fairly raised in this appeal, we decline to address what part, if any, a defendant’s intent might have in making a substantial-risk determination under § 2K1.4(a)(1)(A). 16 likelihood of death or serious bodily injury, and we review this finding for clear error

based on the facts in the record.”); see also United States v. Simpson, 845 F.3d 1039,

1063 (10th Cir. 2017) (reviewing for clear error a factual determination that the

defendant recklessly created a substantial risk of death or serious bodily injury for

purposes of U.S.S.G. § 3C1.2 enhancement). Necessary predicate findings like those

suggested by Mr. Ansberry are implicitly subsumed within the ultimate substantial-

risk finding. See Dillon, 351 F.3d at 1318 (rejecting argument that court erred by

applying § 2Q1.2(b)(2) enhancement for offense that resulted in substantial

likelihood of death or serious bodily injury without making “a separate finding that a

fire was substantially likely to occur” because “[t]he risk of fire is necessarily

subsumed within [the substantial-likelihood] finding”); cf. United States v. Begaye,

635 F.3d 456, 466 (10th Cir. 2011) (explaining that a U.S.S.G. § 5K2.3 departure

based on a finding that the offense caused extreme psychological injury “subsumed

the predicate finding” that the injury exceeded “the ‘normal’ injury” resulting from

such an offense). Thus, for purposes of this appeal, we do not require an express

finding that the bomb was capable of detonating and causing injury. Instead, we

inquire whether record evidence—including evidence that the bomb was capable of

detonating and causing injury—supports the court’s finding that Mr. Ansberry’s

offense created a substantial risk of serious injury or death.

Second, Mr. Ansberry challenges the district court’s substantial-risk finding by

arguing the record is devoid of evidence that the bomb was capable of detonating or

causing death or serious injury. He explains that, although he attempted to trigger the

17 bomb by calling and texting the cell phone, the bomb could not have detonated

because he used an intact, rather than broken, light bulb, preventing the HMTD from

becoming heated enough to detonate. He also asserts there is no evidence the HMTD

was of sufficient quantity or quality to explode on its own from friction, heat, or

impact or, if it did, to cause serious injury or death. Because, in his view, there was

no evidence to support a finding that the bomb could detonate, Mr. Ansberry asserts

the court erred in finding that his offense created a substantial risk of death or serious

injury.

As explained, we review for clear error the district court’s finding that Mr.

Ansberry’s offense created a substantial risk. See United States v. Curtis, 799

F. App’x 639, 642 (10th Cir. 2020) (“The determination whether an [offense] created

a substantial risk of serious bodily injury [or death] ‘is so fact-focused that we review

for clear error.’” (quoting Patton, 927 F.3d at 1101)). “Factual findings are clearly

erroneous only if they are without factual support in the record or if this court,

considering all the evidence, is left with a definite and firm conviction that a mistake

has been made.” United States v. Cortes-Gomez, 926 F.3d 699, 708 (10th Cir. 2019).

Once again, we disagree with Mr. Ansberry’s assessment of the record. The

record contains evidence—mainly in the form of expert testimony—that the bomb

was capable of detonating. One government expert, although conceding on cross-

examination that he could not say whether an intact light bulb would generate enough

heat to detonate the HMTD, maintained that the bomb was nevertheless capable of

detonating. Another government expert explained that, although “every instance [of

18 introducing energy to HMTD] might not cause it to detonate, you’re playing with a

high-risk situation at that point. It is capable of detonating, but you might be lucky[,]

and it might not.” R. vol. VIII at 166. Similarly, Mr. Ansberry’s own expert testified

that, although the bomb was incapable of detonating via the phone calls and texts as

designed, the HMTD, even degraded to the extent it was, was capable of detonating.

He explained that, although the bomb could not function as designed, “that doesn’t

mean that you couldn’t have taken it and banged it against a wall and have it explode

and kill yourself.” Id. at 357. There is also record evidence that the bomb, if it had

detonated, could have caused serious injury or death. Both government and defense

experts testified that, if it had exploded, the bomb could have killed or seriously

injured people near it. Further, when the bomb was eventually detonated, it tore the

sandbags surrounding it to shreds.

On this record, we cannot say the district court clearly erred in making its

substantial-risk finding. Contrary to Mr. Ansberry’s argument, the record contains

factual support for an implicit finding that the bomb was capable of detonating and

causing serious injury or death. 5 Thus, there is factual support for the court’s express

5 Mr. Ansberry relies heavily on United States v. Smith, 210 F.3d 760 (7th Cir. 2000). The defendant in Smith poured an unknown amount of anhydrous ammonia from his car as he fled police, and the district court applied an enhancement for recklessly creating a substantial risk of death or serious injury under U.S.S.G. § 3C1.2. Smith, 210 F.3d at 761. The Seventh Circuit reversed, explaining that the record did not indicate “what amount [the defendant] dumped, what concentration of vapors the officers were exposed to, and for what length of time that exposure lasted,” making it impossible to know “if [he] poured the equivalent of a[n essentially harmless] lighted match out the window, or if he poured out an amount that would expose passengers in another car following closely behind to a substantial risk.” Id. 19 finding that Mr. Ansberry’s offense created the risk required for application of

§ 2K1.4(a)(1)(A), and we are not left with a definite and firm conviction that this

finding was mistaken. See Cortes-Gomez, 926 F.3d at 708.

* * *

In sum, we conclude that the district court found Mr. Ansberry actually created

a substantial risk of death or serious bodily injury and that this finding was not

clearly erroneous.

B. Section 3A1.2(a) Official-Victim Enhancement

Mr. Ansberry next challenges the district court’s application of the § 3A1.2(a)

official-victim enhancement. Under § 3A1.2(a), a sentencing court is to apply a

three-level enhancement “if (1) the victim was . . . a government officer or employee

. . . and (2) the offense of conviction was motivated by such status.” U.S.S.G.

§ 3A1.2(a).

Relying on United States v. Blackwell, 323 F.3d 1256 (10th Cir. 2003), Mr.

Ansberry argues the district court erred by basing the § 3A1.2(a) official-victim

enhancement on conduct related to the offense rather than on only the facts

immediately related to his offense of conviction. 6 In Blackwell, the defendant, using a

at 763. But, unlike in Smith, the district court here had the benefit of expert testimony that Mr. Ansberry’s bomb could have detonated and caused serious injury or death. 6 The dissent would hold that Mr. Ansberry waived this issue by not making the argument in the district court he now advances in reliance on United States v. Blackwell, 323 F.3d 1256 (10th Cir. 2003). To be sure, the dissent identifies differences between Mr. Ansberry’s arguments here and in the district court that could support our refusal to consider the issue on appeal. But the government never 20 laser sight, pointed a firearm at police officers and was convicted of possessing a

firearm as a previously convicted felon in violation of 18 U.S.C. § 922(g)(1). See

Blackwell, 323 F.3d at 1257–58. The district court applied a § 3A1.2(a) official-

victim enhancement, and this court reversed. Id. at 1258–62. We explained that,

because § 3A1.2(a) specifically refers to the “offense of conviction,” rather than the

offense in general, it “applies only to the offense of conviction, not to that offense

accompanied by relevant conduct.” 323 F.3d at 1260; see id. (“[T]he guidelines

‘indicate that the phrase “offense of conviction” encompasses only facts immediately

related to the specific offense for which the defendant was convicted.’” (brackets

omitted) (quoting United States v. Holbert, 285 F.3d 1257, 1261 n.3 (10th Cir.

2002))). Because “[t]he offense of conviction in [Blackwell] was possession of a

firearm by a felon[, n]othing about the status of the officers in any way motivated the

commission of that offense, nor were the officers victims of that offense.” Id. at

1262. According to Mr. Ansberry, Blackwell requires the reversal of the official-

victim enhancement here.

Mr. Ansberry claims his “offense of conviction consists of . . . the facts

establishing that [he] . . . committed the elements of the crime.” Appellant’s Reply

asserts that Mr. Ansberry waived the argument. Accordingly, the government has waived the waiver and we exercise our discretion to consider the argument on the merits. See United States v. De Vaughn, 694 F.3d 1141, 1158 (10th Cir. 2012) (holding that government waived the preclusive effect of defendant’s guilty plea by not arguing waiver in its opening brief on appeal); United States v. Heckenliable, 446 F.3d 1048, 1049 n.3 (10th Cir. 2006) (“The Government, however, does not argue Defendant waived his present challenge, and accordingly, has waived the waiver.”); United States v. Reider, 103 F.3d 99, 103 n.1 (10th Cir. 1996) (same). 21 Br. at 11–12. And he further contends that “[t]he only facts immediately related to

[his] offense of conviction are those he admitted at his plea hearing.” Id. at 12.

Specifically, those facts are that he used or attempted to use “a destructive device

against property in the United States,” Appellant’s Opening Br. at 9, when “he

attempted to detonate a destructive device in a deserted shopping center between 4:55

a.m. and 5:15 a.m. on October 11, 2016,” id. at 32 (quotation marks and brackets

omitted) (quoting R. vol. IX at 87–88); see also Appellant’s Reply Br. at 12; R. vol. I

at 125. In Mr. Ansberry’s view, any events that occurred after his attempts to

detonate the bomb are not facts immediately related to his offense of conviction and

thus are irrelevant for purposes of § 3A1.2(a). He argues that neither Officer

O’Naullain nor any other government employee counts as a victim because none of

them were anywhere near the bomb between 4:55 a.m. and 5:15 a.m. and because Mr.

Ansberry’s subsequent conduct in leaving the bomb to later be discovered by Officer

O’Naullain constitutes relevant conduct, not a fact immediately related to the offense

of conviction.

The government does not contest that, in applying a § 3A1.2(a) enhancement, a

sentencing court is limited to considering only the offense of conviction. Instead, the

government argues that Mr. Ansberry’s understanding of “offense of conviction,” which

looks only to the facts he admitted when pleading guilty, is an “overly cramped”

definition. Appellee’s Br. at 42. In the government’s view, the “offense of conviction”

encompasses the offense a defendant pleaded guilty to and was convicted of, i.e., the

offense specified in the indictment, which here was the “use and attempt[ed] . . . use [of]

22 a . . . destructive device . . . against a person and property within the United States” “[o]n

or about October 11, 2016.” R. vol. I at 38 (emphasis added).

Contrary to the government’s approach, Blackwell directs us to look to facts

immediately related to the offense of conviction and says nothing about looking to the

facts alleged in the indictment. Instead, Blackwell suggests beginning with an

examination of the statutory definition of the offense. Here, the statute defines the offense

Mr. Ansberry was convicted of as “us[ing] . . . or attempt[ing] . . . to use[] a weapon of

mass destruction . . . against any person or property within the United States.” 18 U.S.C.

§ 2332a(a)(2) (emphasis added). Thus, the offense of conviction can be committed either

by using the weapon of mass destruction against a person or against property. Mr.

Ansberry contends that from his statements at the plea hearing as well as his written plea

statement, it is apparent he pleaded guilty only to attempting to use a weapon of mass

destruction against property. As a factual basis for his plea, Mr. Ansberry admitted, in

relevant part:

Between 4:56 a.m. and 5:14 a.m. on October 11, 2016, [Mr.] Ansberry made several calls on a cellular phone in an attempt to detonate a small destructive device that was in a backpack outside of the police station in Nederland, Colorado. The device failed to detonate. . . .

....

. . . [T]he destructive device was not intended to cause casualties or mass destruction.

R. vol. I at 125–26.

In response, the government provided a statement of facts that included events

following the bomb’s failure to detonate and Officer O’Naullain’s subsequent

23 discovery and handling of the device. The government’s version included facts to

support attempted use of the device against a person within the United States.

At the plea hearing, Mr. Ansberry noted the differences between his and the

government’s factual statements and explained he was admitting to only the facts set

out in his own statement. Specifically, Mr. Ansberry explained he was pleading

guilty to “attempting to detonate a destructive device in a deserted shopping center

between 4:55 a.m. and 5:15 a.m.[,] . . . which was not capable of causing mass

destruction, mass casualties.” R. vol. IX at 87–88. When asked to state the elements

of the offense, the prosecutor employed Mr. Ansberry’s version, stating that the

government would have to prove Mr. Ansberry attempted to use a destructive device

“against property within the United States.” Id. at 93 (emphasis added). Mr. Ansberry

then pleaded guilty, and, based on his factual statement, the district court accepted

Mr. Ansberry’s plea and adjudged him guilty.

Under these circumstances, we are convinced that the facts immediately

related to Mr. Ansberry’s offense of conviction are that he attempted to use a

destructive device against property between roughly 4:55 am and 5:15 am on October

11, 2016. While there may have been some confusion created by the indictment’s use

of the conjunctive “and” in contrast to the statute’s use of the disjunctive “or,” there

is no doubt Mr. Ansberry pleaded guilty to violating § 2332a(a)(2) based only on his

attempt to use the device against property during that specific timeframe.

At sentencing, Mr. Ansberry, citing Blackwell, objected to application of the

official-victim enhancement on the ground that he had pleaded guilty only to

24 attempting to use a destructive device against property. In response, the government

argued, as it does in this appeal, that Mr. Ansberry pleaded guilty to the facts alleged

in the indictment and could not “narrow the elements” of the offense set out in that

charging document. R. vol. VIII at 402. The government contended that Officer

O’Naullain counted as an official victim because he was placed at substantial risk

when he unwittingly picked up the bomb and that two other officers in the Nederland

police station became official victims when Officer O’Naullain brought the bomb

into the station.

The district court overruled Mr. Ansberry’s objections and applied the

enhancement. The court found Blackwell distinguishable apparently on the ground

that, to a large extent, its application is limited to victimless offenses. The court then

explained that, by placing his bomb outside the police station, Mr. Ansberry

“intended to commit [his] offense against [both] the police department and its

members.” Id. at 404; see id. at 405 (“By placing the [bomb] in the immediate vicinity

of the Nederland Police Department, [Mr. Ansberry] specifically targeted the employees

of the Nederland Police Department.”). In clarifying how the bomb’s location

demonstrated that police officers were Mr. Ansberry’s “intended victims,” the court

pointed out only that it was left where “a police officer could pick it up.” Id. at 404.

Much of the district court’s reasoning seems to equate committing an offense

against government property with targeting and victimizing government employees. We

do not doubt that in some circumstances a § 3A1.2(a) official-victim enhancement can

apply when the offense of conviction is an offense against government property. But,

25 under Blackwell, the enhancement does not apply (to an offense against property or to

any other offense) unless the facts immediately related to the offense—and not any

additional relevant conduct—supports its application. Automatically treating an offense

against government property as necessarily victimizing government employees conflicts

with Blackwell’s clear teaching. That appears to be what the district court did here in

large part.

When confronted with an offense against government property, a sentencing court,

rather than automatically equating it with the victimization of government employees,

should point to the facts immediately related to the offense that demonstrate how the

offense victimized government employees. Here, the district court offered only one

reason for finding that Mr. Ansberry’s offense victimized the officers: He left the bomb

where “a police officer could pick it up.” Id. Thus, it appears the court, in deciding to

apply the enhancement relied entirely on evidence that Mr. Ansberry, after failing to

detonate the bomb in front of the police station during the twenty-minute period, left it

there in an effort to use it against police officers, such as Officer O’Naullain, who arrived

hours later. In other words, the court did not limit its analysis to only the facts

immediately related to Mr. Ansberry’s offense; instead, it considered additional

related conduct. Under Blackwell, this was error.

We thus reverse the district court’s imposition of the official-victim

enhancement and remand for resentencing so that the district court can consider, in

the first instance, whether the facts immediately related to the offense of conviction

support the enhancement.

26 C. Section 3A1.4 Terrorism Enhancement

Mr. Ansberry next challenges the district court’s application of the § 3A1.4

terrorism enhancement. Under § 3A1.4, a sentencing court is to apply the

enhancement “[i]f the offense is a felony that involved . . . a federal crime of

terrorism,” as that term is defined by 18 U.S.C. § 2332b(g)(5). 7 U.S.S.G. § 3A1.4(a);

see id. cmt. n.1. An offense involves a federal crime of terrorism under § 2332b(g)(5)

if it “is calculated to influence or affect the conduct of government by intimidation or

coercion, or to retaliate against government conduct” and violates a specific

enumerated provision. 18 U.S.C. § 2332b(g)(5). Here, there is no dispute that

Mr. Ansberry’s offense is a violation of one of the enumerated provisions, so the only

issue is whether it was calculated to influence or affect the conduct of government by

intimidation or coercion, or to retaliate against government conduct.

7 Section 3A1.4 “makes clear that the predicate offense must either (1) ‘involve’ a federal crime of terrorism or (2) be ‘intended to promote’ a federal crime of terrorism.” United States v. Awan, 607 F.3d 306, 313 (2d Cir. 2010). This appeal concerns only an offense that might be said to involve, not one that intended to promote, a federal crime of terrorism. 27 The district court found by clear and convincing evidence 8 that Mr. Ansberry’s

offense was calculated to retaliate against government conduct. 9 The court

determined, and Mr. Ansberry does not dispute on appeal, that his offense was

intended as an act of retaliation for the 1971 killing of Guy Goughnor by Nederland’s

8 Ordinarily, district courts are required to make factual findings at sentencing based on a preponderance of the evidence. See United States v. Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009). However, the Supreme Court has left open the possibility that a heightened standard of proof may be appropriate when a sentencing court’s factual determinations would dramatically increase the sentence. See United States v. Watts, 519 U.S. 148, 156–57 (1997); Kinder v. United States, 504 U.S. 946, 948 (1992) (White, J., dissenting from denial of certiorari). We have sometimes said that our cases “have left open the possibility that extraordinary circumstances might justify the use of a more demanding standard at sentencing than a preponderance of the evidence,” although “we have never applied such an enhanced standard of proof.” United States v. Redifer, 631 F. App’x 548, 563 (10th Cir. 2015) (collecting cases). But we have also said that such a possibility is foreclosed in this circuit, and that only the preponderance standard is employed. See United States v. Robinson, 946 F.3d 1168, 1171–72 (10th Cir. 2020) (collecting cases). Here, Mr. Ansberry asked the district court to apply a clear-and-convincing standard to its factual determinations involving the § 3A1.4 terrorism enhancement, and the court determined that it would do so. Because Mr. Ansberry’s arguments on appeal regarding the terrorism enhancement implicate only conclusions of law, we do not address the standard the district court is to apply when resolving factual disputes concerning application of the enhancement. 9 As the text of § 2332b(6)(5)(A) makes clear, an offense may qualify as a federal crime of terrorism if it was “calculated” to either (1) “influence or affect the conduct of government by intimidation or coercion” or (2) “retaliate against government conduct.” 18 U.S.C. § 2332b(g)(5)(A). Here, although the district court stated in passing that it “infer[red] . . . that [D]efendant had the specific intent to influence or affect the conduct of [government] or to retaliate against its conduct,” R. vol. IX at 23, it is clear from the record that the court imposed the § 3A1.4 terrorism enhancement based only on the “retaliate” prong, and not on the “influence or affect” prong, of § 2332b(g)(5)(A). We decline the government’s invitation to determine in the first instance whether Mr. Ansberry’s offense was calculated to influence or affect government conduct through intimidation or coercion, leaving that issue instead for the district court on remand. 28 marshal, Renner Forbes. As Mr. Ansberry points out, however, the district court

expressly refused to determine whether Marshal Forbes’s actions objectively

constituted government conduct. The court instead appears to have concluded that it

could apply the § 3A1.4 terrorism enhancement without making that determination

because, regardless of whether Marshal Forbes’s actions objectively constituted

government conduct, Mr. Ansberry deemed those actions to be government conduct,

and thus his offense was calculated to retaliate against what he subjectively believed

was government conduct.

Mr. Ansberry argues that the district court erred because, by the terms of

§ 2332b(g)(5)(A), the § 3A1.4 terrorism enhancement can be applied only if the

conduct against which a defendant retaliates is objectively government conduct. This

issue appears to be one of first impression in this court. But before addressing it, we

must first be satisfied that Mr. Ansberry preserved his argument by raising it in the

district court.

1. Mr. Ansberry preserved the argument by raising it in the district court.

“To preserve [an] issue in [the] district court, [a party] need[s] only to alert the

court to the issue and seek a ruling.” Harris v. Sharp, 941 F.3d 962, 979 (10th Cir.

2019); see also United States v. Cohee, 716 F. App’x 752, 755 (10th Cir. 2017)

(applying rule in criminal appeal). Specifically, “[i]n federal criminal cases, [Fed. R.

Crim. P.] 51(b) tells parties how to preserve claims of error: ‘by informing the

court—when the court ruling or order is made or sought—of the action the party

wishes the court to take, or the party’s objection to the court’s action and the grounds

29 for that objection.’” United States v. Puckett, 556 U.S. 129, 135 (2009) (quoting Fed.

R. Crim. P. 51(b)). But, “[a] party does not preserve an issue merely . . . by

presenting the issue to the district court in a vague and ambiguous manner . . . [or] by

making a fleeting contention before the district court.” U.S. Aviation Underwriters,

Inc. v. Pilatus Bus. Aircraft, Ltd., 582 F.3d 1131, 1142 (10th Cir. 2009) (quotation

marks omitted). “We also do not address arguments raised in the [d]istrict [c]ourt in a

perfunctory and underdeveloped manner.” In re Rumsey Land Co., 944 F.3d 1259,

1271 (10th Cir. 2019) (quotation marks omitted); see also United States v. Gantt, 679

F.3d 1240, 1248 (10th Cir. 2012) (“An unelaborated snippet cannot preserve an issue

for appeal.”).

The government argues Mr. Ansberry failed to preserve his argument. The

government correctly points out that, at sentencing, Mr. Ansberry’s arguments

regarding application of the §3A1.4 terrorism enhancement focused to a large extent

on whether the evidence showed his offense was motivated by a desire to retaliate

(rather than to remind the public about the plight of his friend and other young men

killed by police) and whether his offense met the definition of “retaliation,” not on

whether the retaliation was against actual government conduct. The government

concedes that Mr. Ansberry did at times address whether Marshal Forbes’s actions

constituted government conduct but asserts that his arguments were underdeveloped

and ambiguous. For instance, the government acknowledges that, prior to sentencing,

Mr. Ansberry argued in one of his sentencing statements that “murder by a person

who happens to be a police officer is not government conduct,” R. vol. I at 156–57,

30 but the government points out that the argument consisted of a single sentence and

that, in a subsequent sentencing statement, Mr. Ansberry argued that the murder was

committed “by an on-duty police officer acting in his official capacity,” R. vol. IV at

33.

Mr. Ansberry, however, contends that the government fails to account for

other instances in which he raised the argument during sentencing. At the sentencing

hearing, for instance, defense counsel attempted to elicit testimony from the lead

investigator on the case regarding Marshal Forbes’s actions during the 1971 killing of

Mr. Goughnor. When the district court interjected to inquire about the relevance of

that line of questioning, counsel explained that he was attempting to “establish . . .

that there was not some government action that . . . Mr. Ansberry[] inten[ded] to

influence or take,” “that any . . . interest that Mr. Ansberry had in the murder of his

friend[] was wholly nongovernmental,” and that his questions were “relevant to the

nongovernmental nature of what happened here.” R. vol. VIII at 274, 276. After

testimony had ended, defense counsel argued, in a brief exchange with the court, that

“what happened 45 years ago was a civilian [action]” and that “Renner Forbes . . .

was acting in the capacity of a civilian when he took [the life of] a 19-year-old

innocent man.” Id. at 416. When the court recessed the hearing for the parties to

provide supplemental briefing, Mr. Ansberry, in his brief, argued that the government

had failed to prove his offense was calculated to retaliate against government conduct

because:

31 to do so would mean proving that the murder of Guy Goughn[o]r by Renner Forbes was government conduct. Proving terrorism under § 2332b(g)(5) requires proof that it was government conduct being retaliated for. The government however concedes that the murder of Guy Goughnor was not government conduct.

R. vol. I at 343. 10

Based on our review of the record—and specifically those parts of the record

cited by Mr. Ansberry—we conclude that he preserved the issue for appeal. He

specifically objected to application of the § 3A1.4 terrorism enhancement and, in the

portion of his sentencing statement addressing the guideline, asked for a ruling from

the district court rejecting its application on the ground, among others, that Marshal

Forbes’s actions did not constitute government conduct for purposes of

§ 2332b(g)(5)(A). Although his explanation of the issue in his initial sentencing

statement might have benefited from being more fulsome, Mr. Ansberry’s argument

was not fleeting, as he raised it throughout the sentencing process. Moreover, Mr.

Ansberry’s presentation of the argument was not vague or ambiguous. Although his

sentencing statements might have been somewhat inconsistent, he argued during the

remainder of the proceedings that Marshal Forbes’s actions did not constitute

government conduct. Nor did Mr. Ansberry raise the argument in a perfunctory or

10 When the hearing resumed, and after the district court had overruled his objections to the § 3A1.4 terrorism enhancement, defense counsel stated he was struck by the court’s apparent finding “that the murder of Guy Goughnor by Renner Forbes was a governmental act.” R. vol. IX at 50. When the court responded that it had not found that “it was a governmental act,” counsel then expressed his understanding that the court had found instead that “the murder of Guy Goughnor by Renner Forbes was not a governmental act.” Id. at 50–51. The court then clarified that it was “making no finding on that.” Id. at 51. 32 underdeveloped manner. Though his treatment of the issue in his sentencing

statements (and perhaps at the sentencing hearing) arguably was not sufficiently

developed, his presentation of the issue in his supplemental briefing clearly was.

Accordingly, we agree with Mr. Ansberry that he preserved the issue for our review.

2. The district court erred by applying the § 3A1.4 terrorism enhancement.

Turning to the merits, Mr. Ansberry’s argument involves the interpretation of

the guidelines as well as a criminal statute, so our review is de novo. See United

States v. Sweargin, 935 F.3d 1116, 1120 (10th Cir. 2019); United States v. Doby, 928

F.3d 1199, 1202 (10th Cir. 2019). “Any exercise in statutory interpretation must

begin with an examination of the plain language at issue.” United States v. Duong,

848 F.3d 928, 931 (10th Cir. 2017) (quotation marks omitted). “The plainness of

statutory language is determined by reference to the language itself, the specific

context in which that language is used, and the broader context of the statute as a

whole.” United States v. Burkholder, 816 F.3d 607, 614 (10th Cir. 2016) (quotation

marks omitted). “If the terms of the statute are clear and unambiguous, the inquiry

ends[,] and we simply give effect to the plain language of the statute.” United States

v. Sprenger, 625 F.3d 1305, 1307 (10th Cir. 2010) (quotation marks omitted).

Mr. Ansberry argues the statute’s reference to “retaliat[ion] against

government conduct,” 18 U.S.C. § 2332b(g)(5)(A) (emphasis added), means the

statute (and hence the guideline) does not apply to retaliation against non-

government conduct. Reading this phrase in isolation, we would readily agree with

Mr. Ansberry that it clearly and unambiguously reaches offenses targeting actual

33 government conduct but does not reach those targeting conduct that is objectively

non-governmental. See United States v. Sanders, 796 F.3d 1241, 1250 (10th Cir.

2015) (applying the doctrine of expressio unius est exclusio alterius in concluding

that, because code provision expressly “authorizes the impoundment of vehicles from

public property,” it “does not authorize, and moreover proscribes, the impoundment

of vehicles from private lots”).

The government points out, however, that the statute does not

straightforwardly define “federal crime of terrorism” as an offense retaliating against

government conduct but, instead, as an offense “calculated . . . to retaliate against

government conduct.” 18 U.S.C. § 2332b(g)(5)(A) (emphasis added). The issue then

is what effect the statute’s reference to “calculat[ion]” has on the meaning of

“government conduct.” Id. Does it mean, as the government contends, that “[a]s long

as [Mr.] Ansberry believed [the conduct at issue] was government conduct,” “it does

not matter whether [it] was [in fact] government conduct”? Appellee’s Br. at 50. We

conclude that it does not.

As used in the statute, “‘[c]alculation’ is concerned with the object that the

[defendant] seeks to achieve through planning or contrivance.” United States v.

Awan, 607 F.3d 306, 317 (2d Cir. 2010) (citing Calculation, Webster’s Third New

International Dictionary Unabridged (1986)); see also id. (“[C]alculated [means]

planned—for whatever reason or motive—to achieve the stated object”); United

States v. Stewart, 590 F.3d 93, 137 (2d Cir. 2009) (“The conventional meaning of

‘calculated’ is ‘devised with forethought.’” (quoting Calculated, Oxford English

34 Dictionary (2d ed. 1999))). Thus, many of our sister circuits have viewed

§ 2332b(g)(5)(A)’s reference to calculation as imposing something akin to a specific-

intent requirement. See United States v. Wright, 747 F.3d 399, 408 (6th Cir. 2014)

(collecting cases); United States v. Siddiqui, 699 F.3d 690, 709 (2d Cir. 2012)

(same). In turn, many of their decisions have framed the issue in what might seem to

be straightforward terms: “‘[I]f a defendant’s purpose in committing an offense is . . .

to retaliate against government conduct,’ application of the terrorism enhancement is

warranted.” Siddiqui, 699 F.3d at 709 (quoting Stewart, 590 F.3d at 137); see also

Wright, 747 F.3d at 408 (“A defendant has the requisite intent if he or she acted with

the purpose of influencing or affecting government conduct and planned his or her

actions with this objective in mind.”).

The government latches onto the language in these decisions and argues that,

so long as a defendant’s subjective purpose or intent was to retaliate against

government conduct, the enhancement applies. Thus, according to the government,

whether the conduct the defendant retaliated against was government conduct,

objectively speaking, is irrelevant.

We do not read the statute or the decisions the government relies on so

broadly. Although we agree that the statute’s use of the word “calculated” imposes

something like a specific-intent requirement, that conclusion does not resolve the

issue before us. If § 2332b(g)(5)(A)’s use of “calculated” means that the defendant’s

offense must have been committed with specific intent, that just begs the question:

the specific intent to do what? The answer here, of course, is a specific intent to

35 retaliate against government conduct. But that brings us back round to square one:

Does the statute require that the conduct the defendant had the specific intent to

retaliate against objectively be government conduct, or can it be merely conduct that

he subjectively believes to be government conduct? Standing alone, the statute’s use

of “calculated” does not answer this question in the way the government would like.

A statutory requirement of specific intent to retaliate could easily be paired with a

requirement that the retaliation be directed against specific types of conduct that are

subjectively defined, but it could just as easily be paired with a requirement that the

retaliation be directed against objectively defined conduct. It is the statutory language

that must control this question.

In our view, the ordinary meaning of the language used by this statute

demonstrates that it requires the offense to be calculated, i.e., committed with the

specific intent, to retaliate against government conduct, objectively defined. We

reach this conclusion for two reasons. First, and chiefly, the statute expressly

specifies that it is “government conduct” that the offense must be calculated to

retaliate against. 18 U.S.C. § 2332b(g)(5)(A) (emphasis added). We think the term

“government conduct,” in conjunction with the rest of the statute, is most naturally

read to mean conduct by government in the objective sense rather than to mean any

kind of conduct—even non-government conduct—that a defendant believes to be

conduct by government. 11 See United States v. Black, 773 F.3d 1113, 1115 (10th Cir.

11 The term “government,” as used in this statute, refers to an objectively recognizable entity. See, e.g., Government, Oxford English Dictionary (2d ed. 1989) 36 2014) (“When words are not defined within the statute, we construe them ‘in

accordance with their ordinary or natural meaning.’” (brackets omitted) (quoting

FDIC v. Meyer, 510 U.S. 471, 476 (1994))). And, as we have explained, the statute’s

use of “calculated” does not by itself suggest a different result. 12 Second, the statute

contains no express language implicating the defendant’s perception or belief

regarding the governmental nature of the conduct at issue. As Mr. Ansberry points

out, other criminal statutes account for a defendant’s subjective perceptions that

prompt an offense by expressly referring to “the actual or perceived” circumstances

at issue. See, e.g., 18 U.S.C. § 249(a)(1)–(2), (c)(4) (criminalizing conduct taken

“because of the actual or perceived race, color, religion, or national origin” or

“because of the actual or perceived . . . gender, sexual orientation, gender identity, or

disability of any person”). The absence of similar language in § 2332b(g)(5)(A)

serves to confirm that “government conduct” should be understood in an objective,

(defining “government” to mean, as relevant here, “[t]he governing power in a state; the body of persons charged with the duty of governing”). If a term is commonly defined in an objective, rather than subjective, sense, the objective sense is the one most likely conveyed by the term’s use in a statute, at least in the absence of an indication otherwise. See United States v. Donovan, 242 F.2d 61, 63 (2d Cir. 1957). 12 The dissent would reach a contrary conclusion also relying on the plain meaning of “calculated.” Dis. Op. at 9. To the extent the dissent has identified a contrary reasonable interpretation of the criminal statute, the rule of lenity dictates that we interpret it in favor of Mr. Ansberry. See United States v. Rentz, 777 F.3d 1105, 1113 (10th Cir. 2015) (explaining that “[t]o the extent any ambiguity remains” after exhaustion of the evidence of congressional meaning, “the tie goes to the presumptively free citizen and not the prosecutor” under the rule of lenity); United States v. Wilson, 10 F.3d 734, 736 (10th Cir. 1993) (“The rule [of lenity] applies to substantive, as well as sentencing, statutes.”). 37 not subjective, sense. See Sessions v. Dimaya, 138 S. Ct. 1204, 1218 (2018)

(cautioning against construing criminal statute that does not include certain language

to convey the same meaning as other statutes that expressly include that language).

The cases the government cites do not lead to a different conclusion. Those

cases are largely concerned with interpreting “calculated,” and they read that term as

creating something closely resembling a specific-intent requirement. See, e.g.,

Siddiqui, 699 F.3d at 709. But, as we have already explained, such a requirement

does not suggest that § 2332b(g)(5)(A) applies simply because a defendant believed

the conduct he retaliated against was government conduct. None of these cases

directly address the issue before us, and the handful of cases addressing

§ 2332b(g)(5)(A) that do interpret the phrase “government conduct” suggest that term

has an objective rather than a subjective meaning.

In United States v. Assi, 428 F. App’x 570 (6th Cir. 2011), for instance, the

defendant asserted that, to the extent it was conducting activities beyond its borders,

Israel could not be considered a “government” for purposes of § 2332b(g)(5)(A). 428

F. App’x at 574–75. In rejecting the argument, the court did not give any weight to

the defendant’s “belie[f] that Israel should not [be] deemed a ‘government,’” but

instead appears to have concluded that a nation’s allegedly “illegal[]” activities have

no bearing on whether it objectively constitutes a “government.” Id. at 575–76.

Similarly, in United States v. Salim, 549 F.3d 67 (2d Cir. 2008), the defendant

contended that “the rulings of a judge do not constitute ‘government conduct.’” 549

F.3d at 79. Rather than delve into the defendant’s perceptions or beliefs regarding the

38 nature of judicial rulings, the court concluded the argument was “patently meritless”

on the ground that judicial rulings objectively constitute government conduct. Id.

And, in United States v. Thurston, Nos. CR 06-60069-01-AA, et al., 2007 WL

1500176 (D. Or. May 21, 2007), the district court agreed with the defendants’

argument that, because “the definition of ‘federal crime of terrorism’ explicitly

requires an intent ‘to influence or affect the conduct of government by intimidation or

coercion, or to retaliate against government conduct,’ “the government must establish

that the defendants targeted government conduct rather than the conduct of private

individuals or corporations.” Id. at *15 (quoting 18 U.S.C. § 2332b(g)(5)(A)).

Thus, the extant caselaw does not support the government’s position. If

anything, it supports our conclusion that the statute’s plain language requires that the

conduct against which an offense is calculated to retaliate must be conduct by the

government, objectively defined.

We hold that, if a sentencing court applies a § 3A1.4 terrorism enhancement

on the ground that the defendant’s offense was calculated to retaliate against

government conduct, the conduct that the defendant retaliates against must

objectively be government conduct. Here, despite record evidence and argument that

the conduct Mr. Ansberry retaliated against was not objectively government conduct,

the district court applied the § 3A1.4 terrorism enhancement on this ground while

expressly refusing to find whether the conduct objectively constituted government

39 conduct. This was reversible error. We will therefore remand the case to the district

court for resentencing. 13

In sum, we conclude Mr. Ansberry preserved his challenge to the § 3A1.4

terrorism enhancement and the district court erred by applying the enhancement on

the ground that his offense was calculated to retaliate against government conduct

without finding that Marshal Forbes’s killing of Guy Goughnor was in fact

government conduct.

III. CONCLUSION

Mr. Ansberry’s challenge to the district court’s application of the

§ 2K1.4(a)(1) base offense level is meritless. 14 We agree with Mr. Ansberry,

13 To the extent the government invites us to determine that Marshal Forbes’ killing of Guy Goughnor was objectively government conduct, we decline to do so in the first instance. 14 Mr. Ansberry also argues that the district court’s decisions to apply the § 2K1.4(a)(1) base offense level and the § 3A1.2(a) official-victim enhancement are unconstitutional because they are based on judge-found facts at sentencing. Although Mr. Ansberry concedes that our precedent permits this kind of judicial factfinding, see, e.g., United States v. Redcorn, 528 F.3d 727, 745–46 (10th Cir. 2008), he seeks to preserve the issue by obtaining a ruling in this court. The government argues, however, that Mr. Ansberry failed to preserve this argument in the district court by raising it only briefly and only with respect to the § 3A1.4 terrorism enhancement. We agree with the government that Mr. Ansberry forfeited the issue with respect to the § 2K1.4(a)(1) base offense level and the § 3A1.2(a) official-victim enhancement by raising it with respect to those two guidelines only long after the court had already ruled on Mr. Ansberry’s objections to them. See Puckett, 556 U.S. at 135 (“In federal criminal cases, . . . parties . . . preserve claims of error[] ‘by informing the court— when the court ruling or order is made or sought—of . . . the party’s objection to the court’s action and the grounds for that objection.’” (emphasis added) (quoting Fed. R. Crim. P. 51(b)). And Mr. Ansberry thereafter waived the issue with respect to 40 however, that the district court erred by applying the § 3A1.2(a) official-victim

enhancement. We also agree with him that the district court erred by applying the

§ 3A1.4 terrorism enhancement under § 2332b(g)(5)(A)’s retaliation prong without

finding that the conduct that Mr. Ansberry’s offense was calculated to retaliate

against—the killing of Guy Goughnor by Marshal Forbes—was objectively

government conduct. 15 We thus VACATE Mr. Ansberry’s sentence and REMAND

for resentencing in accordance with this opinion. 16

those two guidelines by failing to argue for plain-error review on appeal. See United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019). As for Mr. Ansberry’s argument regarding the constitutionality of the district court’s reliance on judge- found facts to increase his sentence under the § 3A1.4 terrorism enhancement, we decline to address this argument here because the district court’s assessment of this guideline on remand may render this argument moot. 15 Our opinion does not necessarily require the district court to make a finding on this disputed question. If, on remand, the district court finds that Mr. Ansberry’s offense was calculated to retaliate against some other objectively-defined government conduct or that it was calculated to influence or affect some other government conduct by intimidation or coercion, then determining whether the killing was objectively government conduct might not be necessary to apply the § 3A1.4 terrorism enhancement. We express no opinion on how the district court should resolve this issue. 16 Mr. Ansberry also challenges the substantive reasonableness of his sentence. Because we conclude that Mr. Ansberry’s sentence must be vacated on procedural grounds, his arguments regarding its substantive reasonableness are moot. 41 United States v. Ansberry, 19-1048

EID, J., concurring in part and dissenting in part.

Today the majority makes two mistakes, in my view. First, it bypasses traditional

waiver principles in order to hold, in the first instance, that the “offense of conviction”

under the official-victim enhancement of § 3A1.2(a) is limited to conduct that occurred

“[b]etween 4:56 am and 5:14 am on October 11, 2016, [when] Ansberry made several

calls on a cellular phone in an attempt to detonate a small destructive device.” Maj. Op.

at 23 (quoting guilty plea). Ansberry did not argue below that his “offense of conviction”

was so limited, he does not argue plain error on the point before us, and he therefore has

waived the issue. Second, the majority erroneously holds that a defendant’s actions can

be “calculated” to “retaliate against government conduct” under the terrorism

enhancement of § 3A1.4 only if they are in retaliation for actual, objective government

conduct. Id. at 40. But the language of the enhancement focuses on whether the

defendant’s actions were “calculated” to retaliate against the government; there is no

requirement that the defendant’s calculation be in retaliation for actual, rather than

perceived, government conduct. Accordingly, while I join Part II-A of the majority

opinion regarding Ansberry’s creation of a “substantial risk of death or serious bodily

injury” under § 2K1.4(a)(1)(A), I dissent from Parts II-B and II-C, and thus would affirm

the district court with regard to all three sentencing issues. I.

Our doctrine of waiver reflects, and furthers, the principle that an appellate court

reviews issues presented to and considered by the district court. As the Supreme Court

has long recognized, “[i]t is the general rule, of course, that a federal appellate court does

not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120

(1976). The Court explained: “this is essential in order that parties may have the

opportunity to offer all the evidence they believe relevant to the issues.” Id. (internal

quotation marks and citation omitted). While the “matter of what questions may be taken

up and resolved for the first time on appeal is one left primarily to the discretion of the

courts of appeals,” id. at 121, we have cautioned that “our discretion to hear issues for the

first time on appeal” is to be “exercise[d] . . . only in the most unusual circumstances,”

Lyons v. Jefferson Bank & Trust, 944 F.2d 716, 721 (10th Cir. 1993). For that reason, “if

the theory [a party urges on appeal] simply wasn’t raised before the district court, we

usually hold it forfeited.” In re Rumsey Land Co., 944 F.3d 1259, 1271 (10th Cir. 2019)

(internal quotation marks and citation omitted).

The majority reverses the district court by adopting arguments that Ansberry never

made before that court. Below, Ansberry did argue, as he does now, that United States v.

Blackwell, 323 F.3d 1256 (10th Cir. 2003), controls. To that end, he asserted the district

court could only consider his offense of conviction. But from there, his analysis departed

from his current reasoning. Before the district court, Ansberry insisted that his offense of

conviction consisted only of the elements of the offense to which he and the government

had agreed—not, as he does now, that the only facts to be considered are those confined

2 within the eighteen minutes during which he attempted to detonate his device, see Aplt.

Br. at 32.

An examination of the record reveals Ansberry failed to make the argument he

now urges our court to contemplate. In August 2017, as part of his “Statement Regarding

Applicable Sentencing Guidelines,” he wrote: “Mr. Ansberry specifically pled guilty

[under 18 U.S.C. § 2332a(a)(2)] to attempting to use a destructive device against property

in the United States.” ROA Vol. I at 155. For that reason, Ansberry stressed the

government could only prove that he targeted a physical property—not “that he attempted

to harm any person.” Id. And that meant, Ansberry continued, that § 3A1.2 was

inapplicable because it required individual victims. Id. Almost a year later, Ansberry

maintained this position in his “Objections to the Pre-Sentence Investigation Report.” He

explained that “no individuals are victims of the offense,” because he “specifically pled

guilty [under 18 U.S.C. § 2332a(a)(2)] to attempting to use a destructive device against

property in the United States.” ROA Vol. I at 205; see also id. at 209 (same).

Ansberry did not deviate from this argument during sentencing. It is instructive to

look at the district court’s language to understand what arguments were presented before

it. In accordance with Ansberry’s prior reasoning, the district court stated Ansberry

pleaded guilty to attempting to use a destructive device against property of the United

States. As such, the court observed that Ansberry “argues . . . the Government cannot

prove he attempted to harm any person. There are no specified individuals as victims of

this offense. And, therefore, there are no individual victims of this offense.” ROA Vol.

VIII at 398–99. Asked to further articulate his argument, Ansberry reiterated that

3 “[t]here is no specific victim that was listed [in Count 1],” attempted use of a weapon of

mass destruction against property under 18 U.S.C. § 2332a(a)(2). Id. at 400. He added

that because “Blackwell stand[s]” for the premise that we look to “the offense of

conviction, . . . not the relevant conduct,” there can be no victims of his offense as the

elements he pleaded guilty to contained “no specified individuals [as] victims of the

offense.” Id. at 401.

Later, in supplemental briefing, Ansberry emphasized to the district court that this

enhancement was inapplicable “when the word ‘person’ was specifically excised from

the elements of the crime he pled guilty to, in favor only of the word ‘property.’” ROA

Vol. I at 342. This is found under a section stating: “[t]he government has not proven

that that [sic] Mr. Ansberry was motivated to victimize any government officer or

employee,” id., giving further support to the notion advanced by Ansberry that if he

pleaded guilty to using a bomb against property, then the district court could not find he

targeted individuals. Accordingly, Ansberry argued, application of this enhancement was

inapposite given the alleged absence of individual victims in “the elements of the crime

he pled guilty to.” Id.

The record thus demonstrates that Ansberry never broached the subject of

confining the “offense of conviction” to an eighteen-minute window of facts. Rather, he

repeatedly underscored how his offense of conviction consisted solely of the elements of

the offense to which he pleaded guilty—namely, that he attempted “to use a destructive

device against property in the United States,” ROA Vol. I at 155. Because this offense

did not specify that he targeted any persons, there could be no individual victims. For

4 that reason, according to Ansberry, the elements of the offense—targeting of a physical

building—precluded application of this official-victim enhancement.

Yet on appeal, Ansberry shifts the nature of his argument. Before us, he argues

for the first time that under Blackwell, the district court erroneously considered facts

outside of the 4:56 a.m. to 5:14 a.m. timeframe during which he attempted to detonate his

bomb. See Reply Br. at 12 (maintaining that “[t]he only facts immediately related to Mr.

Ansberry’s conviction for that offense are those he admitted at his plea hearing: . . . that

he attempted to ‘detonate a destructive device . . . between 4:55 am and 5:15 am on

October 11, 2016’” (second omission in original) (quoting ROA Vol. IX at 87–88)); see

also Aplt. Br. at 32 (same). This proposition is distinct from what he contended below—

that the district court could only consider the facts stemming from his “attempt[] to use a

destructive device against property in the United States,” ROA Vol. I at 155, 205; see

also ROA Vol. VIII at 399.

And this is a distinction with a difference. Ansberry’s addition of the temporal

qualifier to the elements of his offense results in a significant narrowing of the universe

of facts available for the district court to consider when applying this enhancement.

Under his theory before the district court, Ansberry articulated an understanding of

Blackwell by which the court could properly consider any and all facts concerning his

“attempt[] to use a destructive device against property in the United States.” ROA Vol. I

at 155. In his own words, he contended that “the government can only prove that; it

cannot prove that he attempted to harm any person.” Id. And so given Blackwell’s

guidance that an offense of conviction consists of the “facts immediately related to the

5 specific offense for which the defendant was convicted,” 323 F.3d at 1260, the district

court could (and did) examine facts—such as Officer O’Naullain’s subsequent discovery

of the device—that fell outside of the narrow window during which Ansberry attempted

to set off his bomb. Ansberry now invites this court, in the first instance, to significantly

limit facts on which the enhancement can be based—an invitation the majority accepts.

Further, the majority accepts Ansberry’s invitation with little analysis. It notes

that at his change of plea hearing, several months after sentencing, Ansberry did explain

“he was pleading guilty to attempting to detonate a destructive device in a deserted

shopping center between 4:55 a.m. and 5:15 a.m.” on October 11, 2016. Maj. Op. at 8

(internal quotation mark omitted) (quoting ROA Vol. IX at 87–88). But this statement

was not made in the context of arguing against an application of § 3A1.2. Instead,

Ansberry was explaining “in [his] own words,” ROA Vol. IX at 87, to what he was

pleading guilty. Notably, he did not take the further step and assert that the district court

was now restricted from considering the larger picture involving Ansberry’s “attempt[] to

use a destructive device against property in the United States.” ROA Vol. I at 155.

Ansberry’s description of his plea does not raise the temporal qualifier issue he currently

presents on appeal, and the majority makes no assertion that it does. 1 And his failure to

1 The majority concludes instead that the government never asserted that Ansberry waived this argument. And so it holds “the government has waived the waiver and we exercise our discretion to consider the argument on the merits.” Maj. Op. at 21 n.6. Whether or not the government argued waiver on this issue before us does not change my analysis, however. Regardless of what the government argues, the majority is still deciding an issue without the benefit of consideration by the district court. 6 make a plain-error argument on appeal renders this issue waived. See United States v.

Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019).

In the end, this court has made clear “that a party may not lose in the district court

on one theory of the case, and then prevail on appeal on a different theory. . . . Our

requirement [is] that an issue be presented to, considered [and] decided by the trial

court.” Lyons, 944 F.2d at 721 (internal quotation marks and citations omitted). As in

Lyons, I would not consider Ansberry’s argument that the offense of conviction in this

case is limited to facts that occurred “[b]etween 4:56 a.m. and 5:14 a.m. on October 11,

2016, [when] Ansberry made several calls on a cellular phone in an attempt to detonate a

small destructive device.” Maj. Op. at 23 (quoting guilty plea). The majority’s exercise

of discretion to do so is, in my view, a mistake.

II.

Under § 3A1.4, a sentencing court is to apply the terrorism enhancement “[i]f the

offense is a felony that involved . . . a federal crime of terrorism,” as that term is defined

by 18 U.S.C. § 2332b(g)(5). U.S.S.G. § 3A1.4(a). An offense involves a federal crime

of terrorism under § 2332b(g)(5) if it “is calculated to influence or affect the conduct of

government by intimidation or coercion, or to retaliate against government conduct” and

violates a specific enumerated provision. 18 U.S.C. § 2332b(g)(5)(A). As the majority

notes, the district court determined Ansberry’s offense was intended, in part, “as an act of

retaliation for the 1971 killing of Guy Goughnor by Nederland’s marshal, Renner

Forbes.” Maj. Op. at 28–29. But the majority reverses the district court, concluding that

“if a sentencing court applies a § 3A1.4 terrorism enhancement on the ground that the

7 defendant’s offense was calculated to retaliate against government conduct, the conduct

that the defendant retaliates against must objectively be government conduct.” Id. at 39.

In my view, the majority wrongly engrafts an “objective government conduct” limitation

onto the language of the § 3A1.4 terrorism enhancement.

The language of the terrorism enhancement focuses on whether the defendant’s

actions were “calculated . . . to retaliate against government conduct.” I see no limitation

in this language restricting the enhancement to actions that were taken in retaliation

against objective government conduct. By this, the majority apparently means that the

government conduct must be actual, rather than perceived. See, e.g., id. at 37. The

majority’s interpretation, however, does not take into account the full meaning of the

word “calculated.”

I agree with the majority that “calculated” ordinarily refers to deliberate planning

or specific intentions. And so this phrase represents an act deliberately planned to

retaliate against government conduct. The dictionary definitions for “calculated” listed

by the majority, “devised with forethought” or “planned . . . to achieve [a] stated object,”

substantiate this ordinary meaning. Id. at 34 (listing dictionary definitions of the term).

But the majority stops there, concluding that the only work performed in the statutory

language by the word “calculated” is that it imposes a specific intent requirement. See id.

at 35. It then asks, “the specific intent to do what?” Id. In answering its own question

with “a specific intent to retaliate against government conduct,” id. at 35–36, it defines

government conduct as limited to objective government conduct.

8 But the word “calculated” does more than what the majority gives it credit for.

“Calculated” focuses the offense on the planning itself, not on whether or to what extent

the planning was successful or realistic. The question is whether the defendant, through

planning, sought to achieve retaliation against government conduct. This indicates

aspirational language that is not dependent on the accomplishment of that purpose. In

deciding whether to apply this enhancement, then, a court should look to whether the

defendant’s offense was devised with forethought or planned to retaliate against what she

believed to be government conduct. See United States v. Awan, 607 F.3d 306, 317 (2d

Cir. 2010) (“Section 2332b(g)(5)(A) does not focus on the defendant but on his ‘offense,’

asking whether it was calculated, i.e., planned[—]for whatever reason or motive[—]to

achieve the stated object.”). That the defendant may or may not have ultimately

retaliated against actual or objective “government conduct” does not change the fact that

she set out to achieve this goal.

In the end, the statute’s use of the word “calculated” tells us something important

about the “government conduct” at issue, namely, that the goal of the defendant’s

conduct must be retaliation for government conduct. This goal remains the same whether

the government conduct is real or perceived.

It is not the meaning of “government conduct” we are seeking here, but the

meaning of “calculated . . . to retaliate against government conduct.” Justice Scalia and

Bryan Garner explained the reasoning behind looking to the ordinary meaning of a phrase

as a whole, rather than fixating on the meaning of individual words in the phrase:

“Adhering to the fair meaning of the text (the textualist’s touchstone) does not limit one

9 to the hyperliteral meaning of each word in the text. In the words of Learned Hand: ‘a

sterile literalism . . . loses sight of the forest for the trees.’ The full body of a text

contains implications that can alter the literal meaning of individual words.” Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 356 (2012)

(footnote omitted). Here, the majority, in my view, misses the full meaning of the

language by artificially cordoning off the term “calculated” from the rest of the statutory

phrase. 2

Caselaw from our sister circuits reinforces this understanding as to the impact of

“calculated” on the statutory phrase. In United States v. Wright, for example, the Sixth

Circuit upheld application of this enhancement, observing: “[a] defendant has the

requisite intent if he or she acted with the purpose of influencing or affecting government

conduct and planned his or her actions with this objective in mind.” 747 F.3d 399, 408

(6th Cir. 2014) (emphasis added). To this end, the Sixth Circuit highlighted the

defendants’ belief that if they bombed a bridge, this “would likely affect the conduct of

government agencies by prompting them to take heightened security measures.” Id. at

410. Regardless of whether or not this intended offense would actually “influence or

affect the conduct of government,” 18 U.S.C. § 2332b(g)(5)(A), it was the defendants’

2 This error, in my view, causes the remainder of the majority’s statutory analysis to fall. For example, while it is true that the term “government” refers to the governing authority of a state, Maj. Op. at 37 n.11, the term “calculated” suggests that retaliating against government conduct must be the goal of the defendant’s conduct. And while it is true that the enhancement does not contain “express language” regarding a defendant’s perception, as is found in other statutes, Maj. Op. at 37, such language would be superfluous here given the use of the term “calculated.” 10 desired end state which carried weight. See Wright, 747 F.3d at 410 (“The evidence

demonstrates that Wright, Baxter, and Stevens undertook the bridge-bombing plot within

a context of plans that they understood to implicate government interests. They intended

to engage in violent protests in Chicago, which—to their minds, at least—would likely

involve combat with law enforcement officers. . . . They expected that the government

would respond to the bridge bombing.” (emphases added)).

And in United States v. Van Haften, 881 F.3d 543 (7th Cir. 2018), the Seventh

Circuit similarly affirmed. Before the defendant was actually able to join ISIS, he was

caught traveling to Turkey. Despite “the factual predicates that motivated his decision

[being] false or absurd,” id. at 545, such as “that Britain’s Prince William is the

Antichrist, that people can use numerology to predict the future, and that most Western

political leaders are closet Satanists,” id. at 543, “[a]ll that matters is that he did, in fact,

commit a crime calculated to retaliate against the government,” id. at 545 (citations

omitted). Finally, in United States v. Mandhai, the Eleventh Circuit upheld application of

the terrorism enhancement after concluding that evidence supported the district court’s

finding that the object of the offense “was to influence or affect government conduct, or

to retaliate against past government action.” 375 F.3d 1243, 1248 (11th Cir. 2004). The

defendant pleaded guilty to conspiring to destroy buildings affecting interstate commerce.

He argued there was insufficient evidence to prove his crime “was calculated to influence

or affect the conduct of government by intimidation or coercion, or to retaliate against

government conduct since it was speculative that he would or could follow through on

the conspiracy’s plan to bomb electrical substations,” id. (internal quotation marks

11 omitted), which called into question his ability to actually affect or retaliate against

government conduct. “Contrary to [the defendant’s] assertion, the terrorism enhancement

does not hinge upon a defendant’s ability to carry out specific terrorist crimes or the

degree of separation from their actual implementation.” Id. Further, the court had no

need to delve into whether or not bombing electrical substations would indeed affect

government conduct. That was immaterial—instead, “it is the defendant’s purpose that is

relevant, and if that purpose is to promote a terrorism crime, the enhancement is

triggered.” Id. (emphases added).

The majority responds to this statutory construction by turning to the rule of lenity.

See Maj. Op. at 37 n.12 (“To the extent the dissent has identified a contrary reasonable

interpretation of the criminal statute, the rule of lenity dictates that we interpret it in favor

of Mr. Ansberry.”). But the rule of lenity is not applicable to the present case. Where, as

here, the plain text of the statute yields a straightforward interpretation, the rule of lenity

has no role to play. What is more, “[t]he simple existence of some statutory ambiguity,

however, is not sufficient to warrant application of [the rule of lenity], for most statutes

are ambiguous to some degree.” Muscarello v. United States, 524 U.S. 125, 138 (1998)

(citation omitted). For that reason, to invoke this rule, we must conclude there is a

“grievous ambiguity or uncertainty in the language . . . of the [statute].” Chapman v.

United States, 500 U.S. 453, 463 (1991) (internal quotation marks omitted) (quoting

Huddleston v. United States, 415 U.S. 814, 831 (1974)). There is no such grievous

ambiguity here.

12 As the majority observes, the district court “found by clear and convincing

evidence” that Ansberry’s offense was indeed calculated to retaliate against what he

perceived to be government conduct. Maj. Op. at 28; see also ROA Vol. IX at 22–23,

26–27. Accordingly, I would affirm the district court’s application of the § 3A1.4

enhancement on this ground.

***

For the reasons stated above, I would affirm the district court’s imposition of the

§ 3A1.2(a) official-victim enhancement and the § 3A1.4 terrorism enhancement.

Accordingly, I respectfully dissent from Parts II-B and II-C of the majority opinion.