United States v. Gardenhire, No. 13-50125 (Wardlaw with Paez and Ponsor (D. Mass.)) ---

 

The Ninth Circuit vacated an above-Guidelines sentence imposed after a defendant's guilty plea to pointing a laser beam at an aircraft, holding that the sentencing judge failed to make any findings to support the base offense level of 18 for recklessly endangering the occupants of the aircraft under U.S.S.G. § 2A5.2. The court directed that the case be reassigned to a different district judge on remand.

The defendant here was a bored teenager living in Burbank, California, and the court called his crime a "misguided, teenage prank." His friend gave him a laser, warned him not to point it at anyone's eyes. Together they started playing with it, pointing it at parked cars, stop signs, and other objects. The defendant lived with his grandparents near the Burbank airport, and so his "playing" with the laser ultimately ended with him pointing it at two aircraft -- a seven-passenger Cessna jet and a police helicopter. The beam hit the pilot of the Cessna in the eye, temporarily blinding him, although he recovered and landed the jet safely. The police helicopter ultimately traced the source of the laser. The defendant was arrested, made statements to the FBI, and ultimately pleaded guilty to one count involving the Cessna in exchange for dismissal of the count involving the police helicopter.

The crime to which the defendant pleaded guilty was so new that no provision of the Guidelines expressly covered it, so the presentence report used what was, in the probation office's view, was the most closely analogous Guideline, U.S.S.G. § 2A5.2, interference with a flight crew. The unadorned base offense level for this crime is 9, but if the defendant recklessly endangered an aircraft then the base offense level is 18. WIth 3 levels off for acceptance of responsibility, his total offense level was 15, for a range of 18-24 months. The judge rejected his case for post-plea diversion and imposed a 30-month sentence, but the court of appeals granted him release pending appeal.

Because the recklessness finding doubled the applicable base offense level, it was required to be proved by clear and convincing evidence. But here the record was "devoid of evidence, let alone clear and convincing evidence, that [the defendant] was aware of the risk created by his conduct." The sentencing judge concluded from the FBI reports that the defendant intentionally aimed the beam at the aircraft, and thus knew that it could reach them (the airport was half a mile away from his house). But this did not show any awareness of the consequences of striking the aircraft -- an 18-year-old man told not to aim the beam at someone's eyes does not necessarily understand that the beam could reach the pilot of an aircraft half a mile away, and nothing in the record showed that he understood the physics behind lasers, specifically that the beam can intensify as it shines through the glass of a cockpit. Simply put, the sentencing judge made no findings that the defendant was aware of the risks associated with aiming a laser beam at an aircraft. This was procedural sentencing error.

Nor was the error harmless simply because the judge said he would impose the same sentence should he get the case back on remand. That was a reason he gave for denying the defendant's request for bail pending appeal, and had nothing to do with the lack of findings to support the recklessness determination. The court read this statement as an indication that the judge would be unable to set aside his preconceived notions of the sentence that should be imposed, which is why the court directed reassignment to a different judge on remand.

The opinion ends with a lament about the broad range of conduct to which § 2A5.2 applies -- from aiming a laser at an aircraft to assaulting a flight attendant to terrorist activity.

Congratulations to Deputy Federal Public Defender Matthew Larsen of the Central District of California.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/04/30/13-50125.pdf