United States v. McENRY
2011 U.S. App. LEXIS 20723
9th Cir.2011Background
- McEnry pled guilty to knowingly serving as an airman without an airman's certificate under 49 U.S.C. § 46306(b)(7) for operating an aircraft without proper certification.
- FAA investigations showed the pilot lacked a valid airman’s certificate and the aircraft had safety and maintenance issues; no direct air transportation occurred under the statute’s scope.
- The district court found no exact Guideline for the offense and chose § 2A5.2 as the most analogous guideline, despite arguments to use § 2B1.1 or others.
- McEnry’s conduct involved an unusual landing and handling of the aircraft; the government reserved its right to present evidence on controlled substances at sentencing.
- McEnry argued § 2B1.1 was more appropriate and that using § 2A5.2 relied on his uncharged conduct and risk, affecting the guidelines calculation.
- The district court sentenced McEnry to 21 months, mid-range within the (improperly calculated) guidelines, leading to this appeal for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which guideline is most analogous under § 2X5.1 for the offense? | Government: §2A5.2 is most analogous | McEnry: §2B1.1 or other guidelines are more appropriate | §2B1.1 is the correct guideline; §2A5.2 was improper |
| Did the district court rely on uncharged conduct to select the guideline? | Government: consideration permissible at this stage | McEnry: reliance on uncharged conduct was improper | Yes, error in relying on uncharged conduct; remand for resentencing |
| Is the government’s harmless-error argument preserved and/or persuasive? | Government: harmless error should apply | McEnry: arguments waived or not harmless | Waived; even if addressed, not clearly harmless given the improper guideline selection |
Key Cases Cited
- Crawford v. United States, 185 F.3d 1024 (9th Cir. 1999) (selection of guideline when multiple apply under § 1B1.2/a and the Statutory Index)
- Takahashi v. United States, 205 F.3d 1161 (9th Cir. 2000) (analysis when more than one guideline is referenced for a statute)
- Lawton v. United States, 193 F.3d 1087 (9th Cir. 1999) (determine offense guideline section by offense conduct; relevant conduct limited to enhancements after guideline chosen)
- Fisher v. United States, 137 F.3d 1158 (9th Cir. 1998) (catchall § 2X5.1 context; explains § 2X5.1 use when initial guideline not straightforward)
- Carrillo-Hernandez v. United States, 963 F.2d 1316 (9th Cir. 1992) (illustrates choosing the most analogous guideline by statute of conviction)