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The designation would allow Sue and Ken Antrobus of Cincinnati to request restitution and urge a federal judge to impose a stiff sentence on Mackenzie Glade Hunter, the seller of the firearm, at his sentencing next Monday. Their request to speak was turned down last week by U.S. District Judge Dale Kimball.
The judge said that while the Antrobuses and daughter Vanessa Quinn were victims of the shooting spree by Sulejman Talovic, they were not victims under federal law of the unlawful transfer of the .38-caliber Smith & Wesson.
The parents are petitioning the 10th U.S. Circuit Court of Appeals in Denver to reverse that ruling. They say Hunter had good reason to know that violent consequences would follow the sale to Talovic, who was a minor and too young to purchase the firearm.
"By unlawfully selling a handgun to Talovic, the defendant effectively 'set a bomb' -- that is, set loose a person who was prohibited by federal criminal law from carrying such a weapon," the Antrobuses' attorneys, Greg Skordas and Paul Cassell, say in the appeal.
And eight months later, on Feb. 12, the "bomb" exploded, the attorneys write. Talovic, who was armed with the Smith & Wesson and a 12-gauge rifle, killed five people and wounded four with the handgun and a rifle during a rampage that ended when police shot him to death.
"The defendant's criminal sale of a handgun directly harmed Vanessa Quinn when she died from a bullet fired from that gun," the appeal contends.
In his ruling, Kimball also denied the Antrobuses' request for information in a presentence report to bolster their argument that Hunter should get a 99-month sentence. According to the appeal, Hunter believed Talovic would use the gun in a violent crime. In fact, law enforcement reports or other documents will show that Talovic "directly" told Hunter that he wanted the gun to rob a bank, the appeal claims.
Hunter has pleaded guilty to a misdemeanor charge of transferring a handgun to a juvenile and to a felony charge of being a drug user in possession of a gun.
Federal sentencing guidelines call for him to be sentenced to up to one year in prison on the sale charge and up to 10 years for the possession charge. Prosecutors have said they will recommend a lower punishment in exchange for Hunter's cooperation.
The Antrobuses' petition is the first crime victims' appeal in the 10th Circuit under the federal Crime Victims' Rights Act of 2004, their attorneys say.
Cassell, a University of Utah law professor and former federal judge, said the appeals court could set an important precedent for crime victims.
"The parents of a murdered daughter ought to be able to speak at the sentencing of a man who criminally sold the murder weapon," Cassell said. "Hopefully the 10th Circuit will quickly enter an order allowing the Antrobuses to speak next week, giving them the chance to tell the court and the defendant about the tremendous harm that have followed from Hunter's crime."