United States v. Gardenhire

• Decision Date: 30 April 2015
• Docket Number: No. 13–50125.,13–50125.
• Citation: 784 F.3d 1277
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Adam GARDENHIRE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

784 F.3d 1277

UNITED STATES of America, Plaintiff–Appellee

v.Adam GARDENHIRE, Defendant–Appellant.

No. 13–50125.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 18, 2014.

Filed April 30, 2015.

Matthew Brady Larsen (argued), Deputy Federal Public Defender; Sean K. Kennedy, Federal Public Defender, Los Angeles, CA, for Defendant–Appellant.

Kerry C. O'Neill (argued) and Melissa Mills, Assistant United States Attorneys; Robert E. Dugdale, Chief Assistant United States Attorney; André Birotte Jr., United States Attorney, Los Angeles, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Central District of California, Stephen V. Wilson, District Judge, Presiding. D.C. No. 2:12–cr–00345–SVW–1.

Before: KIM McLANE WARDLAW and RICHARD A. PAEZ, Circuit Judges and MICHAEL A. PONSOR,^* Senior District Judge.

OPINION

WARDLAW, Circuit Judge:

We must decide whether the district court correctly found that Adam Gardenhire recklessly endangered an aircraft within the meaning of U.S.S.G. § 2A5.2(a)(2)(A) when he pointed a laser beam at a Cessna Citation jet, in violation of 18 U.S.C. § 39A.

I.

On March 29, 2012, Adam Gardenhire, age eighteen, aimed a green laser pointer at an incoming seven-passenger Cessna Citation jet as it approached the Burbank Airport near his home. The captain and pilot were onboard the private jet when the laser struck the pilot's eye. Although momentarily blinded and distracted by the laser, the pilot was able to safely land the aircraft. Gardenhire also aimed the laser pointer at a police helicopter that was dispatched to determine the laser's source. Having located the source of the laser, the police arrived at Gardenhire's home. Following Gardenhire's admission that “[i]t was me with the laser,” the officers located the laser pointer in his grandfather's bedroom and arrested Gardenhire.

Gardenhire, a high school student, explained to the FBI that he had borrowed the laser from a friend. Gardenhire and his friend had been using the laser to play around in their neighborhood, pointing it at parked cars, stop signs, and other objects. Gardenhire's friend warned him against shining the laser directly at anyone's eyes because it could blind someone. Though Gardenhire intentionally tried to hit the aircraft, he never saw the laser actually reach it. He later learned that he “struck two planes with the laser.” At the time, Gardenhire did not think about the dangers of pointing the laser at an aircraft and was simply bored.

The government charged Gardenhire with two counts of knowingly aiming the beam of a laser pointer at an aircraft in violation of 18 U.S.C. § 39A —one count each for the Cessna Citation jet and the police helicopter. The parties entered into a plea agreement, in which Gardenhire agreed to plead guilty to aiming the laser pointer at the Cessna Citation jet, and the government agreed to dismiss the police helicopter count. The government also agreed to recommend a two-level reduction for acceptance of responsibility at sentencing pursuant to U.S.S.G. § 3E1.1 and, if available, an additional one-level reduction. On October 29, 2012, Gardenhire entered a plea of guilty to aiming a laser at the Cessna Citation jet. Despite the government's agreement with Gardenhire that he was an appropriate candidate for the Conviction and Sentence Alternatives program (“CASA”), a post-guilty plea diversionary program, the district court denied a CASA referral.

On December 21, 2012, the U.S. Probation Office issued its Pre–Sentence Investigation Report (“PSR”) and a recommendation letter. Presumably because the statutory offense to which Gardenhire pleaded guilty had been enacted just six weeks before the date of his offense conduct, no sentencing Guideline expressly corresponded to its violation. See FAA Modernization and Reform Act of 2012, Pub.L. No. 112–95, § 311, 126 Stat. 11, 65–66 (Feb. 14, 2012). Therefore, pursuant to U.S.S.G. § 2X5.1, the Probation Office used the most analogous Guideline, which it concluded was U.S.S.G. § 2A5.2, “Interference with Flight Crew Member or Flight Attendant; Interference with Dispatch, Navigation, Operation, or Maintenance of Mass Transportation Vehicle.”¹ The Probation Office recommended a recklessness enhancement under U.S.S.G. § 2A5.2(a)(2)(A), which doubled Gardenhire's base offense level, increasing it to eighteen.

The only issue at sentencing was whether Gardenhire “recklessly endangered” the safety of an aircraft within the meaning of U.S.S.G. § 2A5.2(a)(2). The Probation Office concluded that he did because he “knowingly and intentionally aim[ed] a laser pointer at both the airplane and helicopter.” The Probation Office then recommended a three-level reduction of the offense level for acceptance of responsibility, found one criminal history point for a prior juvenile adjudication, and recommended a Guidelines sentencing range of eighteen to twenty-four months.

The district court concluded that the Probation Office properly calculated the Guidelines range, finding by clear and convincing evidence that Gardenhire was aware of the dangers of pointing the laser at the Cessna Citation jet. It imposed an above-Guidelines sentence of thirty months' imprisonment plus three years of supervised release, after taking into account the factors provided in 18 U.S.C. § 3553(a). The district court placed particular emphasis on the “need for deterrence” and expressed the hope that the sentence would be publicized so that “young people” would know this sort of “prank” cannot be tolerated. Gardenhire timely appeals.²

II.

We have jurisdiction to review Gardenhire's sentence under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We review the district court's findings of fact underlying its sentencing decision for clear error. United States v. Naghani, 361 F.3d 1255, 1263 (9th Cir.2004). Clear error requires a “definite and firm conviction that a mistake” occurred. United States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir.2009) (en banc). We will reverse only when a district court's factual findings are “illogical, implausible, or without support in the record.” United States v. Fitch, 659 F.3d 788, 797 (9th Cir.2011).

III.

A.

The district court correctly noted that the government bore the burden of showing by clear and convincing evidence that Gardenhire recklessly endangered the aircraft.³ United States v. Gonzalez, 492 F.3d 1031, 1039 (9th Cir.2007). The district court also correctly set forth the definition of “reckless” provided in Application Note 1 to U.S.S.G. § 2A1.4. Naghani, 361 F.3d at 1263 (noting that Application Note 1's definition of “reckless” for involuntary manslaughter applies in this context). Section 2A1.4 defines “reckless” as “a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation.”U.S.S.G. § 2A1.4 cmt. n.1; see also United States v. Rodriguez–Cruz, 255 F.3d 1054, 1059 (9th Cir.2001) (defining reckless). However, the district court erred in concluding that Gardenhire acted recklessly when he aimed his laser beam at the aircraft. The record is devoid of evidence, let alone clear and convincing evidence, that Gardenhire was aware of the risk created by his conduct.

The district court relied on Gardenhire's statement to the FBI that he intentionally tried to hit the aircraft with his laser beam. But this fact does nothing to show that Gardenhire was aware that if he hit the jet, as intended, he could blind or distract the pilot. In finding recklessness, the district court also relied on the “fact” that Gardenhire knew his laser was powerful enough to reach the aircraft. The district court found, incorrectly, that it was “uncontroverted” that Gardenhire stated he “hit the helicopter ‘two to three times' and he hit the two different planes two times.” From that “fact” the court concluded that Gardenhire knew “as soon as he actually observed his laser strike the aircraft” that the beam could travel such a distance. But whether Gardenhire saw his laser beam strike an airplane is controverted—in the very next paragraph of the same FBI report, by Gardenhire's statement that “he never saw the laser hit the planes but he pointed the laser at the airplanes.” And even if Gardenhire knew that the beam struck the aircraft, at most that evidences knowledge that he could succeed in striking the jet, not awareness of the consequences of the beam strike—the risk that the pilot could be blinded or distracted or the aircraft otherwise endangered.

Our conclusion is in accord with the First Circuit, which has made clear that deliberate and intentional acts that happen to result in endangering the safety of an aircraft are insufficient to prove willfulness. In United States v. Sasso, the defendant was charged under 18 U.S.C. § 32(a)(5), which makes it a crime to “willfully ... interfere[ ] with or disable[ ], with intent to endanger the safety of any person or with a reckless disregard for the safety of human life, anyone engaged in the authorized operation of [an] aircraft or any air navigation facility aiding in the navigation of any such aircraft.” 695 F.3d 25, 30 (1st Cir.2012) (alterations in original). In Sasso, the jury was instructed, “If a person's actions interfere with an aircraft operator, you may infer that the person acted willfully if his actions were deliberate and intentional and had the natural and probable effect of interfering with the aircraft operator.” Id. The defendant argued that this instruction “erroneously diluted the mens rea requirement” of the statute, and the First Circuit agreed. Id. The First Circuit held that this “instructional error may have influenced the verdict,” and therefore vacated the conviction and remanded for a new trial. Id. at 31.

As in Sasso, the district court here made the unsupported leap from...