DENVER (CN) — A 68-year-old man appealed a 27-year de facto life sentence Thursday via teleconference before the 10th Circuit, convicted of planting a bomb outside Colorado's Nederland Police Department in 2016 to avenge the death of a friend slain by the town marshal in 1971.
The bomb did not explode as planned, and David Ansberry pleaded guilty to the crime in 2018. The district court applied substantial risk and terrorist guidelines and sentenced him to 27 years plus five years of supervised release.
The homemade bomb’s peroxide-based explosive agent, hexamethylene triperoxide diamine (HMTD), was not pure enough to blow up on its own.
Representing David Ansberry, public defender Kathleen Shen described the efforts of the Boulder, Colorado, bomb squad and the Federal Bureau of Investigation to blow up the homemade bomb as “evidence that the HMTD in the device was too insensitive to explode.”
U.S. Circuit Judge Carolyn McHugh, a Barack Obama appointee, said it did not matter if the bomb blew up, it was still capable of exploding.
“We know it wasn’t too degraded to explode; the bomb squad got it to explode, it shredded a sandbag," McHugh said.
U.S. Attorney Marissa Miller also stressed this point.
“The district court made clear that it believed this bomb was actually dangerous and not just potentially dangerous. This was a real bomb that was capable of going off,” Miller said.
U.S. Circuit Judge Carlos Lucero, a Bill Clinton appointee, was not convinced by the hypothetical.
“Aren’t we dealing here with a question of fact? In fact, this bomb was highly stable, instead of being unstable as a bomb should, I guess, be,” Lucero said. “How do we make that determination, based on the device that’s in front of us or based on the hypothetical device that the sentencing judge described?”
The panel also considered whether Ansberry should have been sentenced under guidelines for terrorist activities even though it remains unclear whether he was retaliating against actual government conduct.
While living with the hippie Serenity, Tranquility and Peace Family in Nederland in the 1970s, Ansberry befriended 19-year-old Guy "Deputy Dawg" Gaughnor.
On July 17, 1971, Nederland Town Marshal Renner Forbes pulled Gaughnor out of a bar. Hunters found the young man’s body one month later with a gunshot wound to the head.
Forbes confessed to the killing in 1997 but died “without having spent a single day behind bars.”
“The defendant was retaliating against the town marshal who killed ‘Deputy Dawg,’ this is an important part of the story,” Miller said.
But the trial court never determined whether Forbes was acting as a law enforcement officer when he killed Gaughnor.
“The district court specially refused to make the finding on whether or not the town marshal was acting within the scope of his duties as town marshal when he executed ‘Deputy Dawg,’ and I think you can make a pretty good argument that he wasn’t,” McHugh said. “Don’t we at least have to remand to get a finding one way or another?”
Miller said it was enough that Ansberry was motivated by “an antigovernment ideology” regardless of whether police action prompted the belief.
U.S. Circuit Judge Allison Eid, a Donald Trump appointee, also sat in on the three-judge panel, which was viewed by 20 users on YouTube.
The panel did not indicate when it will rule.
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