United States v. Tankersley ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 07-30334
v.
 D.C. No.
CR-06-60071-ALA
KENDALL TANKERSLEY, aka Sarah
Kendall Harvey; Kendall, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted
May 5, 2008—Portland, Oregon
Filed August 12, 2008
Before: Richard C. Tallman, Richard R. Clifton, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Tallman
10377
10380 UNITED STATES v. TANKERSLEY
COUNSEL
Gail K. Johnson, Smith and West, LLC, Denver, Colorado,
for the appellant.
Stephen F. Peifer, Assistant U.S. Attorney, Portland, Oregon,
for the appellee.
OPINION
TALLMAN, Circuit Judge:
Kendall Tankersley appeals a 41-month sentence imposed
following her guilty plea to a three-count Information charg-
ing her with conspiracy to commit arson and destruction of an
energy facility in violation of 18 U.S.C. § 371, aiding and
abetting attempted arson in violation of 18 U.S.C. §§ 2 and
844(i), and aiding and abetting arson in violation of 18 U.S.C.
UNITED STATES v. TANKERSLEY 10381
§ 844(i). We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
From 1996 through 2001, activist groups known publicly as
the Earth Liberation Front (“ELF”) and the Animal Liberation
Front (“ALF”) committed arson and other crimes against gov-
ernment and private entities in several Western states. The
groups’ membership changed over the lifetime of the conspir-
acy but included as many as sixteen conspirators. Tankersley
actively participated in both an attempted and a subsequently
completed arson that destroyed the headquarters building of
U.S. Forest Industries, Inc., a private timber company located
in Medford, Oregon.
The district court imposed a sentencing enhancement for
the commission of a “federal crime of terrorism,” pursuant to
United States Sentencing Guidelines (“U.S.S.G.” or “Sentenc-
ing Guidelines”) § 3A1.4 (2000),1 against several of Tankers-
ley’s co-defendants who targeted government property. The
district court did not impose this enhancement on Tankersley
because she targeted only private property. It did, however,
impose a twelve-level upward departure pursuant to U.S.S.G.
§ 5K2.0, which had the effect of making her base offense
level the same as if she had been subject to the terrorism
enhancement.
Tankersley argues that her sentence is unreasonable and
that the district court abused its discretion by imposing the
upward departure. She argues that the terrorism enhancement
should not apply to her because she did not target government
property, and that the twelve-level upward departure amounts
to an imposition of the terrorism enhancement. She argues
that the district court is not empowered to depart upward
based on what she frames as its disagreement with congres-
sional policy concerning the applicability of the terrorism
1
The parties stipulated that the 2000 version of the Sentencing Guide-
lines applied to these sentencing proceedings.
10382 UNITED STATES v. TANKERSLEY
enhancement, and she argues that there were insufficient
aggravating circumstances to remove her offense from the
heartland of arson offenses.
We must decide whether a sentence outside the applicable
advisory guidelines range is per se unreasonable when it is
based on the district court’s efforts to achieve sentencing par-
ity between defendants who engaged in similar conduct: with
some targeting government property and who were properly
subject to the terrorism enhancement, and others targeting
only private property who were not. We hold that such a sen-
tence is not per se unreasonable. We also conclude that the
district court did not clearly err by declining to apply a four-
level downward adjustment for a minimal role in the offense.
See U.S.S.G. § 3B1.2(a). In light of the district court’s proper
application of the statutory factors set forth in 18 U.S.C.
§ 3553(a), we hold that Tankersley’s 41-month sentence is
reasonable.
I
A
Over a five-year period beginning in October 1996 as many
as sixteen individuals conspired to damage or destroy private
and government property on behalf of ELF and ALF. The
conspirators targeted government agencies and private entities
they believed were responsible for degrading the environment
through timber harvesting, cruelty to animals, and other
means. The conspiracy covered multiple crimes in five West-
ern states and resulted in tens of millions of dollars in damage.2
2
As summarized by the district court, the offenses included:
arson of the Dutch Girl Dairy in Eugene, Oregon in December
1995; arson and attempted arson of the United States Forest Ser-
vice (USFS) Ranger Station in Detroit, Oregon in October 1996;
arson of the USFS Ranger Station in Oakridge, Oregon in Octo-
ber 1996; arson of Cavel West Meat Packing Plant in Redmond,
UNITED STATES v. TANKERSLEY 10383
Following a ten-year investigation by local, state, and federal
law enforcement agencies, federal indictments were returned
in various United States district courts. The bulk of the prose-
cutions occurred in the District of Oregon with United States
District Judge Ann L. Aiken presiding. After lengthy negotia-
tions, all ten defendants agreed to proceed by way of criminal
informations and pled guilty to conspiracy. Nine of the defen-
dants also pled guilty to separate, substantive counts of arson
and/or attempted arson. Three of those defendants have
appealed their sentences. In this Opinion we address the argu-
ments of Defendant-Appellant Kendall Tankersley.3
Oregon in July 1997; arson of the Bureau of Land Management
(BLM) Wild Horse Corrals near Burns, Oregon in November
1997; arson of the United States Department of Agriculture Ani-
mal Plant Health Inspection Service and Animal Damage Control
Facility in Olympia, Washington in June 1998; arson and
attempted arson of Redwood Coast Trucking Company and
Wayne Bare Trucking Company in Arcata, California in Septem-
ber 1998; attempted arson of the BLM Wild Horse Corrals near
Rock Springs, Wyoming in October 1998; arson of a ski resort
near Vail, Colorado in October 1998; arson of U.S. Forest Indus-
tries in Medford, Oregon in December 1998; arson of Childers
Meat Company in Eugene, Oregon in May 1999; arson of a Boise
Cascade office in Monmouth, Oregon in December 1999;
destruction of a high-voltage energy tower near Bend, Oregon in
December 1999; arson of the Eugene Police Department West
Campus Public Safety Station in Eugene, Oregon in September
2000; arson of Superior Lumber Company in Glendale, Oregon
in January 2001; arson of Romania Chevrolet Truck Center in
Eugene, Oregon in March 2001; arson of Jefferson Poplar Farm
in Clatskanie, Oregon in May 2001; arson of the University of
Washington Horticulture Center in Seattle, Washington in May
2001; and arson of the BLM Litchfield Wild Horse and Burro
Corrals near Susanville, California in October 2001.
3
In Memorandum Dispositions filed simultaneously with this Opinion
we affirm the sentences imposed by Judge Aiken on co-defendants Kevin
Tubbs, No. 07-30250, and Jonathan Christopher Mark Paul, No. 07-
30310.
10384 UNITED STATES v. TANKERSLEY
B
Tankersley moved to Eugene, Oregon, in 1995 to attend the
University of Oregon. Soon thereafter she began participating
in timber protests. In 1997, she was convicted of disorderly
conduct and obstructing governmental administration after
blocking a forest road and climbing onto logging trucks in
protest of a timber harvest in Josephine County, Oregon. Just
over a year later, Tankersley was convicted of criminal tres-
pass and providing false information to a police officer in
connection with a protest at a Union Pacific rail yard.
It was during these early acts that Tankersley met and
began dating Jacob Ferguson, a leader of ELF.4 She told Fer-
guson about logging trucks in Humboldt County, California,
that they could target for arson. And, in September 1998, the
two placed incendiary devices under several of these logging
trucks, destroying one at a cost of $40,000. The district court
considered this information as relevant conduct in fashioning
Tankersley’s sentence, though neither Tankersley nor Fergu-
son was ever charged or convicted for these crimes. The dis-
trict court accepted the facts in Tankersley’s Presentence
Report (“PSR”) as true.
Three months later, Tankersley, Ferguson, and co-
conspirator Kevin Tubbs agreed to target U.S. Forest Indus-
tries. The three participated in a “dry run” of the arson.
Tankersley hid in a nearby ditch and acted as a lookout for
Tubbs and Ferguson. Based on their reconnaissance, Tubbs,
Tankersley, and Ferguson decided to recruit a fourth person.
On December 22, 1998, Tubbs, Ferguson, Tankersley, and
the new recruit, Rebecca Rubin, drove to Medford, Oregon,
in Tubbs’s van. The van contained several white, five-gallon
buckets filled with fuel. Tubbs dropped Tankersley off near
4
Ferguson cooperated with the investigators after he was charged with
multiple crimes relating to separate incidents.
UNITED STATES v. TANKERSLEY 10385
her lookout position. She carried a two-way radio to commu-
nicate with her three co-conspirators. After the others placed
the incendiary devices and set the timing devices, they fled
the scene of the crime and met Tankersley at a nearby paint
store before driving back to Eugene, Oregon.
Tankersley and Ferguson began to scour newspaper articles
in search of information about a fire at U.S. Forest Industries.
Ferguson eventually learned that the incendiary devices had
failed to ignite properly. He asked Tankersley to drive back
to Medford to retrieve the devices. Although Tankersley
returned to U.S. Forest Industries with another person and
saw the un-ignited devices, she decided not to retrieve them.
Tankersley and Ferguson tried again on December 27,
1998. Tankersley agreed to meet Ferguson in Ashland, Ore-
gon. She helped him gather materials to prepare new timing
mechanisms for the incendiary devices. Tankersley then drove
Ferguson to the neighborhood surrounding U.S. Forest Indus-
tries; she watched Ferguson’s infant son in the car while Fer-
guson set the new timing devices on the buckets of fuel. This
time the devices properly ignited. After Ferguson returned,
Tankersley drove him and his son back to Ashland. She then
drove Ferguson’s son to a hotel in Dunsmuir, California, and
registered in a hotel under a false name. Ferguson joined
Tankersley at the hotel later that night.
The next day Tankersley returned to Eugene. She visited
Tubbs at his residence, and Tubbs and Ferguson showed her
a copy of a media communiqué discussing the successful fire.
In mid-January, Ferguson released the communiqué, which
read:
Communiqué from the ELF for 12-26-98
Happy fucking new year from the Earth Liberation
Front! To celebrate the holidays, we decided on a
bonfire. Unfortunately for U.S. Forest Industries, it
10386 UNITED STATES v. TANKERSLEY
was at their corporate headquarters office in Med-
ford, Oregon. On the foggy night after Christmas
when everyone was digesting their turkey and pie,
Santa[’]s ELFs dropped two five gallon buckets of
diesel/unleaded mix and a one gallon jug with ciga-
rette delays; which proved to be more than enough
to get this party started. And after forty to fifty fire-
fighters showed up to our party, they were unable to
salvage anything, costing these greedy bastards half
a million dollars. This was done in retribution for all
the wild forests and animals lost to feed the wallets
of greedy fucks like Jerry Bramwell, U.S.F.I. presi-
dent. This action is payback and it is a warning, to
all others responsible we do not sleep and we won’t
quit. For the future generations we will fight back.
After the U.S. Forest Industries fire, Tankersley helped
research possible attacks on the U.S. Bureau of Land Manage-
ment wild horse facility in Litchfield, California, and Boise
Cascade Corporation’s regional headquarters in Monmouth,
Oregon. Although both facilities were eventually destroyed
through arson, Tankersley did not further participate in setting
those fires.
Tankersley abandoned her active participation in the con-
spiracy sometime in 1999 and moved to Arcata, California, to
attend Humboldt State University. She obtained a molecular
biology degree in 2004 and moved to Flagstaff, Arizona, in
2005 to apply to medical schools. On December 7, 2005,
seven years after the U.S. Forest Industries arson, Tankersley
was arrested on a federal warrant in Flagstaff.
C
Tankersley joined the other nine defendants in challenging
the government’s suggested application of the terrorism
enhancement under U.S.S.G. § 3A1.4. The district court con-
ducted a joint hearing on May 15, 2007. It issued a 46-page
UNITED STATES v. TANKERSLEY 10387
Memorandum Opinion on May 21, 2007, explaining its sen-
tencing rationale.
The district court focused on the plain language of the Sen-
tencing Guidelines enhancement. Section 3A1.4 provides:
(a) If the offense is a felony that involved, or was
intended to promote, a federal crime of terror-
ism, increase by 12 levels; but if the resulting
offense level is less than level 32, increase to
level 32.
(b) In each such case, the defendant’s criminal his-
tory category from Chapter Four (Criminal His-
tory and Criminal Livelihood) shall be
Category VI.
“Federal crime of terrorism” is defined in 18 U.S.C.
§ 2332b(g). Section 2332b(g)(5) provides, in pertinent part:
[T]he term “Federal crime of terrorism” means an offense
that—
(A) is calculated to influence or affect the conduct of
government by intimidation or coercion, or to retali-
ate against government conduct; and
(B) is in violation of section . . . 844(f)(2) or (3)
(relating to arson and bombing of Government prop-
erty risking or causing death), 844(i) (relating to
arson and bombing of property used in interstate
commerce) . . . .
The district court read the guidelines to mean that the terror-
ism enhancement applies only if the “offense of conviction
involved or was intended to promote an enumerated offense
intended to influence, affect, or retaliate against government
conduct.” See also United States v. Graham, 275 F.3d 490,
10388 UNITED STATES v. TANKERSLEY
514-18 (6th Cir. 2001) (discussing the elements of the terror-
ism enhancement).
The district court also addressed the government’s burden
of proof. It noted that our case law states that, “when a sen-
tencing factor has an extremely disproportionate effect on the
sentence relative to the offense of conviction, due process
requires that the government prove the facts underlying the
enhancement by clear and convincing evidence.” United
States v. Jordan, 256 F.3d 922, 926 (9th Cir. 2001). Because
application of the terrorism enhancement increased the guide-
lines range beyond the statutory maximum for some of the
defendants, increased the offense level by more than four, and
more than doubled the length of the sentence authorized by
the initial guidelines range for all ten defendants, the district
court concluded that application of the enhancement war-
ranted a higher burden of proof. In other words, the district
court held that the government had to present “clear and con-
vincing evidence that defendants’ offenses of conviction
involved or were intended to promote ‘federal crimes of ter-
rorism’ as defined under § 2332b(g)(5)(B).”5
Having provided the defendants with a detailed explanation
of how it intended to apply the terrorism enhancement, the
district court then reminded the defendants of its ability to
adjust the sentence based on other factors. Specifically, it
advised the defendants that “[r]egardless of whether the
enhancement technically applies, the court retains discretion
to depart upward or downward in determining the appropriate
sentencing range and to impose a sentence that takes into
account the nature and circumstances of the offenses and the
history and characteristics of each defendant.” See 18 U.S.C.
§ 3553(a); U.S.S.G. § 5K2.0.
5
The government does not challenge the district court’s application of
the clear and convincing evidence standard. We assume, without deciding,
that the district court applied the correct standard.
UNITED STATES v. TANKERSLEY 10389
D
We turn now to Tankersley’s individual sentencing pro-
ceedings. The PSR calculated a total offense level of 28. The
three counts were grouped together under U.S.S.G. § 3D1.2,
resulting in a base offense level of six. The PSR calculated the
actual loss caused by the arson at $990,220, equating to a
thirteen-level increase under U.S.S.G. § 2B1.3. It also recom-
mended a two-level increase under § 2B1.3(b)(3) because the
offense involved more than minimal planning, but awarded
Tankersley a two-level decrease as a minor participant, see
U.S.S.G. § 3B1.2(b). The probation officer rejected Tankers-
ley’s request for a minimal role adjustment—a four-level
decrease—“because she had considerable knowledge of the
arson and her involvement in both incidents was necessary for
the execution of the offense.” The PSR also applied the terror-
ism enhancement—a twelve-level increase—due to the proba-
tion officer’s conclusion that Tankersley’s crime was intended
to promote a federal crime of terrorism. After a three-level
reduction for acceptance of responsibility, the PSR’s recom-
mended total offense level was 28.
Tankersley objected to several of the factual determinations
made in the PSR. Tankersley contested the PSR’s character-
ization of her involvement in the conspiracy. She complained
that she never identified herself as a part of either ELF or
ALF and that the PSR failed to state the limited time frame
during which she was involved—from autumn of 1998 to Jan-
uary 1999. Moreover, Tankersley disputed the PSR’s failure
to state that she never participated in the “Book Club” meet-
ings of the other conspirators.6 Tankersley also claimed that
6
Many of the conspirators attended and participated in “Book Club”
meetings held in four different states. The Book Club was the moniker for
a select sub-group of co-conspirators who set direction for the groups’
criminal actions and tactics. The district court further explained in its
Memorandum Opinion on sentencing issues:
Topics at the Book Club meetings included lock-picking, com-
puter security, reconnaissance of targeted property, and the man-
10390 UNITED STATES v. TANKERSLEY
the PSR failed to include information regarding her relation-
ship with her boyfriend, Ferguson, who she claimed greatly
influenced her decision to participate in these offenses.
Finally, she argued that the PSR overstates her involvement
in the U.S. Forest Industries arson when compared to co-
conspirator Tubbs.
In an addendum, the probation officer recognized Tankers-
ley’s objections to some of the factual characterizations made
in the PSR. Nevertheless, the addendum offered no changes
as the information contained within the PSR “was taken from
official reports” and “does not affect the guidelines calcula-
tions.”
The district court held its first sentencing hearing for
Tankersley on May 31, 2007. It calculated the base offense
level at six, with a thirteen-level increase for the amount of
loss and a two-level increase for more than minimal planning.
It heard argument, took testimony, and accepted the probation
officer’s recommendation regarding the minimal role adjust-
ment. The court applied a two-level downward adjustment for
minor role, stating “I decline to adjust downward an addi-
tional two levels for minimal role in that when you had the
choice, you went back. And that was after the device didn’t
ignite and you went [b]ack, and I just can’t ignore that.”
The district court concluded that the government failed to
show by clear and convincing evidence that the U.S. Forest
Industries arson was calculated to retaliate against govern-
ment conduct.7 The court noted that the communiqué issued
ufacture of timing devices to ignite improvised incendiary
devices. The conspirators concealed their true identities by using
code words and numbers, names, and nicknames, and by produc-
ing or obtaining false identification documents.
7
In support of the application of the terrorism enhancement, the prose-
cutor presented evidence of a timber protest at the U.S. Forest Industries’
headquarters approximately six months prior to the arson. The group was
UNITED STATES v. TANKERSLEY 10391
after the arson stated that the offenders were targeting
“greedy” corporations with no mention of government con-
duct. Nevertheless, the district court concluded that the guide-
lines “do not adequately take into account aggravating
circumstances of the offense conduct.” The district court felt
that it needed to send a clear message that people will be held
accountable for such “devastating” messages and actions. It
concluded that the Sentencing Guidelines did not properly
account for conduct directed at private individuals and/or enti-
ties.
In some ways, I would note, it is curious that the
enhancement only applies to the offense that targets
government conduct. And I say that as tongue in
cheek, because, of course it makes a big difference
to target government, to target the very essence of
how we are governed.
But it also needs to be taken into account that we
have to recognize using intimidation and violence
against private individuals really isn’t much different
and really should not be in any way condoned.
At the same time, I do not necessarily think that
they should be treated so dramatically different, and
that is why I have routinely departed so that the mes-
sage, because people are concrete thinkers, oh, can’t
torch government but we have a pass on private
property. And given the concrete thinking out there,
protesting timber harvests in Colorado. Between 80 to 85% of U.S. Forest
Industries’ timber harvest contracts handled out of its Colorado office
were with the United States Forest Service. Nevertheless, because the
offenders discussed only “corporate greed” in their communiqué, the dis-
trict court did not find by clear and convincing evidence that Tankersley
sought to influence government conduct. The government does not chal-
lenge this finding on appeal.
10392 UNITED STATES v. TANKERSLEY
I just want to make sure they understand, one way or
the other, that will be recognized and dealt with.
Therefore, I find that 3A1.4 does not adequately
take into account the defendant’s intent to frighten,
intimidate, and coerce private individuals at the U.S.
Forest Industries through her actions. I therefore
exercise my discretion under 5K2.0 to depart upward
by 12 levels . . . .
The district court’s decision to depart upward twelve levels
resulted in an offense level of 31. It then granted a three-level
downward adjustment for acceptance of responsibility. The
government moved for an additional downward departure of
four levels based on Tankersley’s cooperation and substantial
assistance. The court ultimately granted a five-level down-
ward departure, balancing Tankersley’s voluntary abandon-
ment of the conspiracy and her productive life afterwards
against the “incredible dangerousness of what was done and
the damage and magnitude.”
After the first sentencing hearing, the district court calcu-
lated Tankersley’s total offense level at 23, resulting in a
guidelines range of 46 to 57 months. The district court
imposed a sentence of 46 months.
Tankersley promptly filed a motion to reopen her first sen-
tencing, arguing that she had not been given adequate notice
of the district court’s intent to depart upward. The district
court granted the motion to reopen and held a second sentenc-
ing hearing on August 3, 2007. In addition to questioning
whether the district court had the authority to depart upward,
Tankersley argued that a twelve-level upward departure was
unwarranted as co-conspirator Tubbs received only a one-
level upward departure. She also compared her sentence to
that of co-conspirator Daniel Thurston, who received a 37-
month sentence.
UNITED STATES v. TANKERSLEY 10393
The district court addressed each of Tankersley’s argu-
ments in the second hearing. First, it stated that its intent in
each case was “to upwardly depart so that the resulting
offense level was the same as if the § 3A1.4 [terrorism]
enhancement applied.”8 Because the enhancement had applied
to some but not all of Tubbs’s convictions, the district court
needed to impose only a one-level upward departure to make
the offense level the same as if the enhancement had applied
to all of Tubbs’s convictions.9 It reiterated its purpose in
departing upward:
I found that it would not be fair or reasonable if
some coconspirators received a 12-level enhance-
ment under 3A1.4 while others did not simply
because they targeted the conduct of private individ-
uals rather than government.
I think I alluded in the colloquy I had with counsel
that in the context of this particular case, I think it’s
an indirect and direct relationship, and that’s just a
factor that in attempting to be fair and provide sub-
stantially similar sentences in this particular case, I
have consistently followed as an analysis. And I’m
going to follow it in this case.
8
The district court applied only the twelve-level upward departure; it did
not increase Tankersley’s criminal history category to VI as provided for
by the terrorism enhancement.
9
Tubbs pled guilty to a 56-count information and received a sentence of
151 months. Tubbs’s conviction stemmed from nine separate incidents of
arson. During his sentencing proceedings, the district court concluded that
§ 3A1.4 applied to some of his convictions, but not others. It therefore
exercised its discretion under U.S.S.G. § 5K2.0 to depart upward one
level. The district court reasoned that § 3A1.4 “d[id] not adequately take
into account the defendant’s intent to frighten, intimidate, and coerce gov-
ernment and private individuals through his actions.” The one level
upward departure “result[ed] in the same offense level had the terrorism”
enhancement applied to all of Tubbs’s convictions.
10394 UNITED STATES v. TANKERSLEY
So the purpose of the conspiracy, the means,
motives, intents, and actions to carry out those pur-
poses were the same and should be treated similarly.
...
Upward departure, 5K2.0, again, I have the discre-
tion to depart where the guidelines do not adequately
take into account aggravating circumstances of the
offense conduct. As I found before, I find that 3A1.4
does not adequately take into account the defen-
dant’s intent to frighten, intimidate, and coerce pri-
vate individuals at the U.S. Forest Industries,
through your actions. I exercise my discretion under
5K2.0 to depart upward by 12 levels, resulting in an
offense level of 28, that resulting offense level that
would have been applied had the enhancement in
fact . . . been applied.
Second, the district court addressed Tankersley’s compari-
son of her sentence to that of her co-conspirator Thurston,
who received 37 months. The court noted that the government
recommended a sentence of 37 months based on Thurston’s
substantial assistance and that the government was in a better
position than the court to assess relative cooperation among
those who offered information to mitigate their punishment.
Moreover, Tankersley did not receive an upward departure for
participating in the writing of the U.S. Forest Industries com-
muniqué because, while relevant to determine the offenders’
intent, the communiqué did not involve conduct that formed
the basis for her conviction.
When imposing its sentence, the court noted Tankersley’s
willingness to remove herself from this conspiracy and move
her life in a positive direction. It then restated the same guide-
lines calculations from the first hearing, but based on the fac-
tors set forth in 18 U.S.C. § 3553(a), it departed downward an
additional level, resulting in a final range of 41 to 51 months.
UNITED STATES v. TANKERSLEY 10395
The district court imposed a final sentence of 41 months, six
months less than previously imposed.
II
We review all sentencing decisions for an abuse of discre-
tion, regardless of whether the district court applies a sentence
inside or outside the suggested guidelines range. United States
v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc) (citing
Gall v. United States, 128 S. Ct. 586, 597 (2007)). First, we
must determine whether the district court properly calculated
the applicable range under the advisory guidelines. United
States v. Mohamed, 459 F.3d 979, 985 (9th Cir. 2006). “It [is]
procedural error for a district court to fail to calculate—or to
calculate incorrectly—the Guidelines range.” Carty, 520 F.3d
at 993. We review de novo the district court’s interpretation
of the Sentencing Guidelines, and we review for clear error
the district court’s determination of the facts. United States v.
Barsumyan, 517 F.3d 1154, 1157 (9th Cir. 2008). Second, we
review the sentence for substantive reasonableness. Carty,
520 F.3d at 993; Mohamed, 459 F.3d at 985, 987.
III
Tankersley contends that the district court erred by declin-
ing to apply a four-level downward adjustment for minimal
role, instead applying only a two-level downward adjustment
for minor role. We review for clear error the district court’s
determination that Tankersley does not qualify for minimal
participant status. See United States v. Johnson, 297 F.3d 845,
874 (9th Cir. 2002). “[A] minimal participant is one who is
clearly among the least culpable in a criminal group. Id. (cit-
ing U.S. Sentencing Guidelines Manual § 3B1.2(a), cmt. n.1
(1998)). Tankersley’s culpability is measured against her co-
participants and not an “average participant.” Id. “[A] down-
ward adjustment under § 3B1.2(a) is appropriate only if the
defendant was at least ‘substantially’ less culpable than his
co-participants.” Id.
10396 UNITED STATES v. TANKERSLEY
[1] “In determining whether a defendant was a minimal or
a minor participant in any criminal activity, a district court . . .
shall consider all conduct within the scope of § 1B1.3 (Rele-
vant Conduct), not just conduct cited in the count of convic-
tion.” United States v. Hatley, 15 F.3d 856, 859 (9th Cir.
1994); see also United States v. Rojas-Millan, 234 F.3d 464,
473 (9th Cir. 2000) (“[District] courts [need] to look beyond
the individuals brought before [them] to the overall criminal
scheme when determining whether a particular defendant is a
minor participant in the criminal scheme.”); United States v.
Demers, 13 F.3d 1381, 1383 (9th Cir. 1994) (“[A]ll relevant
conduct within the meaning of § 1B1.3 may serve as the pred-
icate for a downward adjustment.”). Section 1B1.3 includes as
relevant conduct “all reasonably foreseeable acts and omis-
sions of others in furtherance of the jointly undertaken crimi-
nal activity.” U.S.S.G. § 1B1.3(a)(1)(B). This is particularly
appropriate when sentencing members of a pervasive and far-
ranging criminal enterprise. Here, the court found that the
conspirators “also formed ‘cells’ or groups that planned and
carried out each arson.” The cells then built the incendiary
devices, researched and identified prospective targets, and
practiced “dry runs.” Some conspirators acted as “lookouts”
while others planted the devices and accelerants at target sites.
The district court rejected the recommendation of the par-
ties to grant a four-level downward adjustment. It stated that
[b]ased on the recommendations of Probation, I also
find a two-level downward adjustment for minor
role. I decline to adjust downward an additional two
levels for minimal role. In this instance, the defen-
dant chose to return to the U.S. [Forest] Industries
after the device did not ignite to ensure that a second
arson attempt was successful.
In the PSR, the probation officer explained his reasoning for
recommending a two-level adjustment:
UNITED STATES v. TANKERSLEY 10397
The CW [Cooperating Witness Jacob Ferguson]
planned this arson with Ms. Tankersley. The CW
assembled the incendiary devices, and placed them
at the target site along with Ms. Rubin. Mr. Tubbs
and Ms. Tankersley were lookouts. Mr. Tubbs was
only involved in the attempted arson. Ms. Tankers-
ley was less culpable than the CW. I will recommend
a minor role adjustment instead of a minimal role,
because she had considerable knowledge of the
arson and her involvement in both incidents were
necessary for the execution of the offense.
Tankersley argues that the district court’s finding was
clearly erroneous on three different grounds: (1) the district
court made no findings comparing Tankersley’s role relative
to other participants; (2) the district court failed to view
Tankersley’s role in relation to the overall conspiracy; and (3)
as a factual matter, Tankersley played a minimal role rather
than a minor role in the offense. We reject her arguments
based on our review of the record.
[2] The district court expressly adopted the recommenda-
tion provided in the PSR, and the probation officer specifi-
cally discussed Tankersley’s involvement in the offense as
compared to the other participants of the U.S. Forest Indus-
tries arson. Tankersley ignores the fact that the district court
conducted ten different sentencing hearings stemming from
this eco-terrorism conspiracy. The court carefully examined
evidence of the pervasive criminal behavior present here and
found conspirators like Tankersley liable for jointly
undertaken conduct by others that was reasonably foreseeable
in furtherance of the overall conspiracy. See U.S.S.G.
§ 1B1.3(a)(1)(B); United States v. Riley, 335 F.3d 919, 928-
29 (9th Cir. 2003); United States v. Bynum, 327 F.3d 986, 993
(9th Cir. 2003); United States v. Gamez, 301 F.3d 1138, 1146-
48 (9th Cir. 2002); United States v. Whitecotton, 142 F.3d
1194, 1198-99 (9th Cir. 1998). It went to great lengths to
determine each co-conspirator’s overall culpability and
10398 UNITED STATES v. TANKERSLEY
impose a fair and equitable sentence. See Hatley, 15 F.3d at
860 (“[I]t is clear from the record that the court did not limit
the scope of the inquiry to the count of conviction.”). In light
of the fact that the minimal role adjustment applies only to
those that are “substantially” less culpable, we can readily
deduce from this record that, through this multiple sentencing
process, the district court considered Tankersley’s culpability
in relation to each participant and imposed a fair and reason-
able sentence based on her part in the overall criminal enter-
prise.10
[3] We find nothing in the record to suggest that the district
court clearly erred by concluding that Tankersley played more
than a minimal role. She had an opportunity to withdraw from
the conspiracy after the first attempt to destroy U.S. Forest
Industries failed. She did not withdraw, but went back again,
and her participation in the second attempt was vital to its
success. This particular fire caused almost one million dollars
in damage and was a significant event in the overall success
of the eco-terrorists’ endeavors to deliver their message of
intimidation and retaliation through acts directed against tim-
ber communities, tree farms, horse rendering plants, SUV
dealerships, university research labs, government installa-
tions, and energy facilities. We therefore affirm the district
10
Tankersley also argues that the district court failed to resolve certain
factual discrepancies in the PSR that relate to her role as a minimal partici-
pant. In addition to declining to apply a minimal role adjustment—from
which we can logically infer that the district court resolved all factual dis-
crepancies in favor of the PSR—the district court expressly adopted the
recommendation of the PSR. This was sufficient for the district court to
satisfy its obligation under Federal Rule of Criminal Procedure 32. Cf.
United States v. Herrera-Rojas, 243 F.3d 1139, 1143 (9th Cir. 2001) (stat-
ing that the court failed to satisfy Rule 32 when the district court “did not
mention the PSR except to make it part of the record, did not adopt its rea-
soning, and did not mention the objections filed by Herrera-Rojas at all”).
Moreover, when the district court asked Tankersley whether she had any
other corrections with regards to the PSR, Tankersley responded in the
negative.
UNITED STATES v. TANKERSLEY 10399
court’s decision not to grant a four-level downward adjust-
ment for minimal role.
IV
[4] Tankersley next argues that the district court’s imposi-
tion of a twelve-level upward departure, based solely on the
court’s policy disagreement with the Sentencing Guidelines,
renders the sentence unreasonable. We disagree. The Supreme
Court in Kimbrough v. United States, 128 S. Ct. 558 (2007),
recently concluded that a “sentence outside the guidelines
range is [not] per se unreasonable when it is based on a dis-
agreement with the sentencing disparity for crack and powder
cocaine offenses.” Id. at 564 (internal quotation marks and
alteration omitted). The Court reiterated that the Sentencing
Guidelines “are advisory only,” and therefore, a conclusion
that a sentence was unreasonable solely because it was based
on a disagreement with sentencing policy would render the
Sentencing Guidelines “effectively mandatory.” Id.
Tankersley tries to distinguish her case from Kimbrough,
arguing that, in applying the twelve-level departure, the dis-
trict court rejected a policy position mandated by Congress,
not by the Sentencing Commission. Cf. Kimbrough, 128
S. Ct. at 570-574 (rejecting the argument that the 100-to-1
ratio was a “specific policy determinatio[n] that Congress has
directed sentencing courts to observe” (alteration in original;
internal quotation marks omitted)); see also United States v.
Gomez-Herrera, 523 F.3d 554, 559 (5th Cir. 2008)
(“Kimbrough . . . concerned a district court’s ability to sen-
tence in disagreement with Guideline policy, . . . [not] a dis-
trict court’s ability to sentence in disagreement with
Congressional policy.”). Her arguments are based on lan-
guage found in the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). See Pub. L. No. 104-132, § 730. As
a part of AEDPA, Congress directed the Sentencing Commis-
sion to amend § 3A1.4 so that it applies only to “federal
crimes of terrorism” as defined in 18 U.S.C. § 2332b(g). Id.
10400 UNITED STATES v. TANKERSLEY
Previously, the enhancement had applied only to a felony that
“involves or is intended to promote international terrorism.”
Violent Crime Control and Enforcement Act of 1994, Pub. L.
No. 103-322 § 120004 (1994).
The district court rejected Tankersley’s argument, reason-
ing that “AEDPA’s directive that § 3A1.4 apply ‘only to fed-
eral crimes of terrorism’ could be construed as requiring the
replacement of the term ‘international terrorism’ with the term
‘federal crime of terrorism’—just as the Sentencing Commis-
sion did.” In other words, Congress did not specify through
AEDPA that a district court could not upwardly depart for
anything other than a “federal crime of terrorism,” and noth-
ing in AEPDA prohibits the Sentencing Commission from
expanding the definition, or including a comparable sentenc-
ing enhancement, for similar terrorist acts directed at private
conduct.
On appeal Tankersley cites legislative history in an effort
to undermine the district court’s reasoning. Tankersley
acknowledges that by changing “international terrorism” to
“federal crimes of terrorism” Congress sought to broaden the
enhancement’s application to domestic terrorism. See Debo-
rah F. Buckman, Annotation, Construction and Application of
Federal Domestic Terrorism Sentencing Enhancement,
U.S.S.G. § 3A1.4, 186 A.L.R. Fed. 147, § 2(a) (2003). Never-
theless, in doing so Tankersley argues that Congress simulta-
neously created a narrow definition of terrorism “ ‘in order to
keep a sentencing judge from assigning a terrorist label to
crimes that are truly not terrorist, and to adequately punish the
terrorist for his offense.’ ” Id. (quoting H.R. Rep. No. 104-
383, at 114 (1995)); see also H.R. Rep. No. 104-518, at 123
(1996) (Conf. Rep.), reprinted in 1996 U.S.C.C.A.N. 944, 956
(“This section of the bill will make that new provision appli-
cable only to those specifically listed federal crimes of terror-
ism, upon conviction of those crimes with the necessary
motivational element to be established at the sentencing phase
of the prosecution . . . .”); Graham, 275 F.3d at 524-543
 UNITED STATES v. TANKERSLEY 10401
(Cohn, J., dissenting) (setting forth the legislative history of
U.S.S.G. § 3A1.4).
In reviewing the legislative history of § 3A1.4, two things
are clear, (1) Congress wanted to limit the application of the
terrorism enhancement to only those crimes that involved or
intended to promote a crime enumerated in § 2332b(g)(5)(B),
and (2) Congress wanted to include an element of intent. The
Conference Report on Senate Bill 735—the final form of the
bill enacted into AEDPA—stated:
This section gives the U.S. Sentencing Commission
amendment authority to expand the scope of its
Chapter 3 enhancement for “international terrorism
offenses” under the U.S. Sentencing Guidelines, to
apply only to federal crimes of terrorism as defined
in section 2332b(g). In amendments to the Sentenc-
ing Guidelines that became effective November 1,
1996, a new provision that substantially increases
jail time for offenses committed in connection with
a crime of international terrorism. This section of the
bill will make that new provision applicable only to
those specifically listed federal crimes of terrorism,
upon conviction of those crimes with the necessary
motivational element to be established at the sen-
tencing phase of the prosecution, without having to
wait until November 1996 for the change to become
law.
H.R. Rep. No. 104-518, at 956 (1996) (Conf. Rep.).
[5] Based on this legislative history, we conclude that
through the terrorism enhancement Congress wanted to
impose a harsher punishment on any individual who commit-
ted an offense that involved or intended to promote one of the
enumerated terrorist acts, and intended, through that offense,
to influence the conduct of others. Nowhere in the legislative
history do we find evidence of congressional intent to prohibit
10402 UNITED STATES v. TANKERSLEY
the Sentencing Commission from promulgating a guideline
that enhanced an offender’s sentence based on that offender’s
intent to use terrorist activities to influence private conduct.
Cf. United States v. Rodriguez, 527 F.3d 221, 229 (1st Cir.
2008) (noting that nothing in the PROTECT Act “forbids nor
discourages the use of a particular sentencing rationale, and
it says nothing about a district court’s discretion to deviate
from the guidelines based on a fast-track disparity”). We
therefore hold that the district court’s decision to depart—
based on its desire to punish terrorist activities directed at pri-
vate conduct in a manner similar to how it punished terrorist
activities direct at government conduct—did not render
Tankersley’s sentence per se unreasonable.
V
[6] Tankersley also challenges the upward departure as
being unwarranted under § 5K2.0 because there were no
aggravating circumstances that were not adequately taken into
consideration by the Sentencing Commission and because
there was no evidence of harm sufficient to remove Tankers-
ley’s offense from the heartland of arson offenses. After
Booker, the scheme of downward and upward departures has
been replaced by the requirement that judges impose a reason-
able sentence. Mohamed, 459 F.3d at 986. Where, as here, a
district court frames its analysis in terms of a downward or
upward departure, we treat the “so-called departure[ ] as an
exercise of post-Booker discretion to sentence a defendant
outside of the applicable guidelines range,” and “any post-
Booker decision to sentence outside of the applicable guide-
lines range is subject to a unitary review for reasonableness,
no matter how the district court styles its sentencing deci-
sion.” Id. at 987.
[7] The old departure scheme is relevant today only insofar
as factors that might have supported (or not supported) a
departure may tend to show that a non-guidelines sentence is
(or is not) reasonable. Id. “[It] reflected the Sentencing Com-
UNITED STATES v. TANKERSLEY 10403
mission’s judgment about what types of considerations should
or should not take a case out of the ‘heartland of typical cases’
such that an extra-guidelines sentence would be justified.” Id.
(quoting Koon v. United States, 518 U.S. 81, 94 (1996)).11
[8] In other words, we do not need to consider whether the
district court correctly applied the departure provision in 4 A.
1.3§ 5K2.0; rather we review the district court’s deviation
from the applicable guidelines range for reasonableness. Id. at
989; see also United States v. Johnson, 427 F.3d 423, 425-27
(7th Cir. 2005) (reviewing the entire sentence for reasonable-
ness rather than determining whether the district court cor-
rectly applied U.S.S.G. § 4A1.3).
11
We are unpersuaded by Tankersley’s argument that the Supreme
Court’s decision in Irizarry v. United States, ___ U.S. ___, 128 S. Ct.
2198 (2008), and our subsequent decision in United States v. Evans-
Martinez, ___ F.3d ___, No. 05-10280, 2008 WL 2599758 (9th Cir. July
2, 2008), have somehow undermined our reasoning in Mohamed.
Mohamed discusses our approach to reviewing post-Booker sentences. 459
F.3d at 984. In Irizarry, the Supreme Court held that the notice require-
ment in Federal Rule of Criminal Procedure 32(h) did not apply to a dis-
trict court’s decision to vary from the guideline range under 18 U.S.C.
§ 3553(a). 128 S. Ct. 2198, 2202-04. In Evans-Martinez, we held that,
post-Booker, a district court is still required under Rule 32(h) to provide
notice of its intent to “depart” from the guideline range. 2008 WL
2599758, at *3. Neither decision affects how we will review the substance
of a post-Booker sentence for reasonableness. They address only the level
of notice due to a defendant prior to a court’s decision to sentence outside
a suggested guideline range. As we stated in Mohamed, the district court
does not have to ignore the pre-Booker system of departures. 459 F.3d at
987. Evans-Martinez requires the district court to notify the defendant
when it plans on citing a departure provision to support its sentencing
decision, but Evans-Martinez does not change how we, as an appellate
court, will review for reasonableness a non-guidelines sentence. Because
the district court granted Tankersley’s motion and held a second sentenc-
ing hearing, she had all the notice we required in Evans-Martinez of the
district court’s intent to sentence her on the grounds we now uphold. Iri-
zarry certainly requires no more, and, as discussed below, the ultimate
sentence is reasonable under Mohamed.
10404 UNITED STATES v. TANKERSLEY
VI
[9] We next consider whether Tankersley’s 41-month sen-
tence is reasonable. The district court must “examine[ ] the
final advisory sentencing range dictated by the Guidelines in
light of all relevant § 3553(a) factors and ‘the particular cir-
cumstances of [the defendant]’s case.’ ” Barsumyan, 517 F.3d
at 1159 (alteration in original) (quoting Kimbrough, 128 S. Ct.
at 576).12 The district court is charged with the responsibility
of imposing a sentence that is “sufficient, but not greater than
necessary.” Carty, 520 F.3d at 991 (quoting 18 U.S.C.
§ 3553(a)). In doing so, the district court was understandably
concerned by the gravity of the criminal conduct with which
it was confronted in these cases.
[10] During both sentencing hearings for Tankersley, the
district court discussed several of the § 3553(a) factors,
including the nature and circumstance of the offense,
§ 3553(a)(1), the need for “adequate deterrence to criminal
conduct,” § 3553(a)(2)(B), as well as “the need to avoid
unwarranted sentence disparities,” § 3553(a)(6). The court
concluded that the communiqué issued after the U.S. Forest
Industries arson conveyed “a devastating message.” Tankers-
12
In Barsumyan, we stated that a policy-based deviation from the Sen-
tencing Guidelines must come after the court has calculated and examined
the final advisory sentencing range. 517 F.3d at 1158-59. Our concern in
Barsumyan was the defendant’s suggestion that we should “perform a sort
of mini-Booker reasonableness determination at each step in determining
the Sentencing Guidelines offense level.” Id. at 1158. Here, unlike the sit-
uations presented in either Barsumyan or Kimbrough, the district court
cited its departure authority under U.S.S.G. § 5K2.0, rather than 18 U.S.C.
§ 3553(a), when making its policy-based departure. It therefore necessar-
ily made its policy-based decision while in the process of calculating
Tankersley’s advisory guidelines range. Nevertheless, the procedural dif-
ference between Tankersley’s sentencing and the one contemplated by
Barsumyan is of no consequence because, as we stated in Mohamed, we
will treat an upward departure “as an exercise of post-Booker discretion
to sentence a defendant outside of the applicable guidelines range.” 459
F.3d at 987. We therefore review the whole sentence for reasonableness.
UNITED STATES v. TANKERSLEY 10405
ley herself—and the enterprise as a whole—spent a substan-
tial amount of time promoting these types of activities and
injecting fear into governmental and private entities. As such,
the court found compelling the need to deter. It reasoned that
“down the road, people need to know, when these messages
and actions are taken, they will be held accountable.”
Additionally, the district court concluded that Tankersley’s
intent to influence private individuals through intimidation
and violence separated her offense from mine-run arson cases.
It found that Tankersley’s “intent to frighten, intimidate, and
coerce private individuals” warranted a greater sentence. The
court also sought to avoid unwarranted sentence disparities
with defendants for whom the terrorism enhancement applied,
given its conclusion that terrorist activities directed at private
individuals should not be treated differently than terrorist
activities directed at government conduct.
We find unavailing Tankersley’s citation to United States
v. Abu Ali, 528 F.3d 210 (4th Cir. 2008), to support her argu-
ment that the district court improperly relied on the need to
avoid sentence disparities to support its departure. In Abu Ali,
the Fourth Circuit determined that the district court erred
when it significantly relied on the need to avoid an unwar-
ranted sentence disparity between the defendant, a person
affiliated with an al-Queda terrorist cell that planned to carry
out a number of terrorist acts in the United States, and Jon
Walker Lindh, Timothy McVeigh, and Terry Nichols. Id. at
262-66. Unlike in Abu Ali, the district court here considered
the sentences of co-defendants who participated in the same
conspiracy for the same purposes.13 Cf. id. at 262-63. Addi-
13
Each co-conspirator admitted that
[t]he primary purposes of the conspiracy were to influence and
affect the conduct of government, commerce, private business
and others in the civilian population by means of force, violence,
sabotage, destruction of property, intimidation and coercion, and
by similar means to retaliate against the conduct of government,
10406 UNITED STATES v. TANKERSLEY
tionally, each of the co-defendants was similarly situated in
that they had entered plea agreements and had accepted
responsibility. Such comparison of co-defendants led the dis-
trict court to conclude that, given the objectives of the crimi-
nal conspiracy, those co-defendants for whom the terrorism
enhancement did not directly apply should not be treated dif-
ferently from those co-defendants for whom the terrorism
enhancement was applicable.
[11] After concluding that the nature and circumstance of
Tankersley’s offense warranted a departure above the advi-
sory guidelines range, the district court next considered
Tankersley’s mitigating circumstances. Among other things,
the court considered Tankersley’s subsequent behavior, her
voluntary withdrawal from the conspiracy, her school work,
her community-based work, and her expressed remorse. Dur-
ing the first sentencing hearing the district court concluded
that these mitigating factors warranted a downward departure
of five levels. However, the district court reconsidered its
analysis, and after considering all of the same mitigating fac-
tors during the second sentencing hearing, the district court
departed downward six-levels (an additional two levels
beyond the government’s recommendation). This resulted in
a guidelines range of 41 to 51 months, for which the court
imposed a sentence of 41 months.
[12] The district court sentenced ten individuals involved in
this conspiracy. It carefully reviewed Tankersley’s PSR, the
parties’ submissions, listened to testimony, and held two
lengthy sentencing hearings for Tankersley alone. The district
court fully considered Tankersley’s subsequent behavior, and
commerce and private business. To achieve these purposes, some
of the conspirators committed and attempted to commit acts
potentially dangerous to human life and property that constituted
violations of the criminal laws of the United States and of indi-
vidual states.
UNITED STATES v. TANKERSLEY 10407
the court’s expectations that Tankersley, once having com-
pleted her sentence, will hopefully lead a productive, crime-
free life. Nevertheless, the district court could not ignore the
grave nature and aggravated circumstances of Tankersley’s
offense, the enormous destruction it caused, and the intent to
harm and intimidate entire communities. The district court’s
sentence was well-reasoned and properly based on the
§ 3553(a) factors. We therefore conclude Tankersley’s 41-
month sentence is reasonable.
VII
For the foregoing reasons, we hold that a sentence outside
the applicable advisory guidelines range is not per se unrea-
sonable when it is based on the district court’s efforts to
achieve sentencing parity between co-defendants who
engaged in similar conduct, where some defendants were
properly subject to a sentencing enhancement, and others
were not.
AFFIRMED.