Appeals from the United States District Court for the Western District of Wisconsin. No. 08 CR 107-Barbara B. Crabb, Chief Judge.
The opinion of the court was delivered by: Manion, Circuit Judge
ARGUED SEPTEMBER 24, 2009
Before POSNER, MANION, and TINDER, Circuit Judges.
In the summer of 2000, defendants Katherine Christianson and Bryan Rivera were members of the Earth Liberation Front, identified by the FBI as a domestic eco-terrorist group. Besides attending meetings and protests, they also found time to destroy several research projects at a U.S. Forest Service facility in Rhinelander, Wisconsin. They were not prosecuted until eight years later when they were indicted for and pleaded guilty to destroying government property. The district court sentenced Christianson to 24 months' and Rivera to 36 months' imprisonment respectively; both sentences were substantially lower than the recommended guideline range but the government does not contest them. On appeal, the defendants challenge the district court's loss-amount calculation; Rivera also argues that the district court erred in applying the terrorism enhancement. We affirm.
In July 2000, Katherine Christianson went to the Earth First! Rendevous in Tennessee with her then-boyfriend of several years, Ian Wallace.*fn1 There they met Daniel McGowan and Bryan Rivera. During the Rendevous, the four discussed vandalizing the U.S. Forest Service ("Forest Service") facility in Rhinelander, Wisconsin, where the Forest Service was conducting several genetic-engineering experiments on trees.
After the Rendevous, the four traveled to Minneapolis, Minnesota, to demonstrate at the International Society of Animal Genetics conference. During their time at the conference, they traveled to Rhinelander and conducted reconnaissance of the facility. After seeing the site, they determined that four people would be needed to effectively carry out their mission. Needing a fifth person to act as a driver, Wallace recruited a friend from high school.
On the night of July 20, 2000, the four entered the facility and damaged or destroyed more than 500 trees, either by cutting them down or by girdling them. Girdling, or as it is more commonly known "ring barking," consists of completely removing a strip of bark around a tree's outer circumference, causing the tree's eventual death. XIII Oxford English Dictionary 958 (2d ed. 1989). In addition to destroying the trees, they used etching cream and spray paint to leave their "calling card" on several Forest Service vehicles. The group, however, had to cut short its sortie after fearing they would be discovered by a security guard. Although they left in haste, they were careful to dispose of their clothes and tools on the way back to Eau Claire, Wisconsin, where they dropped off their driver before returning to Minneapolis.*fn2
The next day, Christianson and McGowan issued a press release in the name of the Earth Liberation Front ("ELF") and on behalf of native forests everywhere. In the communique, they claimed responsibility for the attack and admonished their allies to cease quibbling with the Forest Service over details of their genocidal plans . . . . The sooner we realize that the Forest Service, like industry, are capitalists driven by insane desire to make money and control life, the better. Than [sic] we can start taking more appropriate action.
What they meant by "more appropriate action" is not clear, but from ELF's other attacks, it could be read as foreshadowing further acts of violence against the Forest Service. From there, the case went cold.
Eventually, in January 2007, Wallace was implicated in an attempted bombing on the campus of Michigan Tech University. He subsequently cooperated with the authorities and shared the details of the attack on the Rhinelander facility. Christianson and Rivera were ultimately indicted and pleaded guilty to willfully injuring property belonging to the United States, causing damage greater than $1000, in violation of 18 U.S.C. §§ 2 and 1361. The government initially estimated the loss amount was between half a million and a million dollars.
At sentencing, Christianson challenged the loss calculation. To support its position, the government called Don Riemschneider to testify; he was a research plant scientist at the Rhinelander facility in the summer of 2000. After the attack, Riemschneider had prepared a report for his supervisor and the FBI on the damage from the attack. In it, he estimated a total loss amount in excess of $420,000 based on the damage caused to the Western Black Cotton-wood ("Cottonwood") experiment and an advanced generation clone experiment that was destroyed. For various reasons, he did not include estimates for any of the other experiments that were destroyed by the defendants. At sentencing, he produced his report and repeated his initial estimates, further explaining their bases. He estimated that to replicate the Cottonwood experiment it would cost $400,000. He based this total on the project's costs between 1983-1993, when it was most active; during those years he estimated the project cost at $40,000 per year. In support of this total, he cited three specific expenses that made up the bulk of the costs: the gathering of samples for the experiment, the costs of maintaining the experiment and the cost of hiring a technician to assist in collecting measurements during two years of the experiment. Riemschneider also stressed that this amount was calculated using costs between 1983-1993, and it would be much higher today. He also added that funding for the project was discon- tinued in 2000; it is unclear whether the defendants' conduct had anything to do with that decision.
After hearing Riemschneider's testimony and the arguments of counsel, the district court adopted Riemschneider's estimate of $424,361 as the loss amount attributable to Christianson's conduct, noting this was "a very very conservative [estimate] and lower than what was actually experienced." It also found that Christianson's crime was among those listed in the terrorism enhancement under U.S.S.G. § 3A1.4 and that she committed those acts to influence or affect the conduct of government by intimidation or coercion. The application of the terrorism enhancement automatically raised her offense level to 29, with acceptance of responsibility, and her criminal history to a Category VI. Her guideline range was then calculated at 151-188 months. After consulting the factors at 18 U.S.C. § 3553, the district court sentenced Christianson to 24 months in prison.
The same district court sentenced Rivera. At sentencing, Rivera agreed to the loss amount calculated at Christianson's hearing but argued that the terrorism enhancement was inapplicable. The district court overruled his objection. He had the same guideline range as Christianson: 151-188 months. But after noting his lack of an ...