Argued and Submitted, Pasadena, California November
Appeal from the United States District Court for the Central District of California. D.C. No. 2:12-cr-00345-SVW-1. Stephen V. Wilson, District Judge, Presiding.
The panel vacated a sentence imposed for knowingly aiming the beam of a laser pointer at an aircraft in violation of 18 U.S.C. § 39A, and remanded for resentencing, in a case in which the district court applied an enhancement for reckless endangerment under U.S.S.G. § 2A5.2(a)(2)(A).
The panel held that the district court erred in concluding that the defendant acted recklessly when he aimed his laser beam at the aircraft, where the record is devoid of evidence, let alone clear and convincing evidence, that the defendant was aware of the risk created by his conduct.
The panel could not say that the error was harmless, and instructed that the matter be assigned to a different district judge on remand. The panel observed that the district court's statements show its commitment to the idea that, regardless of the evidence presented, the defendant's conduct was reckless, and that it would likely impose the same sentence on remand, regardless of this court's rulings.
In light of the extremely steep sentencing regime dictated by the recklessness enhancement for wide-ranging conduct covered by § 2A5.2, the panel wrote that it is particularly important that the government is held to its burden of proof and that the enhancements are supported by clear and convincing evidence.
Matthew Brady Larsen (argued), Deputy Federal Public Defender; Sean K. Kennedy, Federal Public Defender, Los Angeles, California, 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, California, for Plaintiff-Appellee.
Before: Kim McLane Wardlaw and Richard A. Paez, Circuit Judges and Michael A. Ponsor,[*] Senior District Judge. Opinion by Judge Wardlaw.
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.
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 ...