United States v. Gonzalez

America, STATES UNITED

Plaintiff-Appellee, GONZALEZ, Defendant-

Salvador

Appellant. 05-10543.

No. Appeals, Court

Ninth Circuit. 16, 2006. Nov. Submitted

Argued and July

Filed

made and, statements about a bomb ac- cording to flight attendant, said, “I’m blowing up.” The crew and passengers tried to subdue him. He even- tually was handcuffed and the plane was diverted back to Las Vegas. pled

Gonzalez guilty interference with a flight crew member violation of 49 U.S.C. appeals He the district court’s decision to impose nine-level sen- tencing enhancement for reckless endan- germent of the aircraft under advisory United States Sentencing Guidelines (“Guidelines”). We are unpersuaded by argument that the enhancement inapplicable. His conduct was a threat to crew and passengers but to the Bogden, Daniel G. United States Attor- ney; Ellman, Chief, Robert L. Appellate Division; Thomas Dougherty, S. Assistant BACKGROUND Attorney, Vegas, NV, Las Shortly take-off, after Gonzalez, who for the defendant-appellant. was seated in the last row of airplane, Franny Forsman, A. Federal Public De- up, stood complained of heart problems, fender; Carr, Jason F. Assistant Federal requested oxygen from a flight attend- Defender, Public Vegas, NV, Las for the ant. Flight Patrick attendant Poulin in- plaintiff-appellee. formed Gonzalez that the captain would be

notified oxygen would be made avail- able, but Gonzalez refused to sit down and aisle, walked up demanding that the plane land. Just as Poulin was retrieving an oxygen Before: A. WALLACE TASHIMA and tank, flight Nancy Castillo no- M. McKEOWN, MARGARET Circuit ticed Gonzalez in the aisle and thought he

Judges, EZRA,* and DAVID A. District might need medical attention. ap- As she Judge. proached, Gonzalez said that he was hav- ing a McKEOWN, heart attack. Circuit Judge: Castillo to calm tried down, him but Gonzalez continued toward Southwest Flight Airlines bound the front of plane, claiming that he Ontario, California, from Las Vegas, needed a forward seat and asking that the Nevada, had an uneventful takeoff. Be- plane, just off, had taken land. long, fore the cabin was in total chaos. Passenger Salvador Gonzalez hys- became Gonzalez became increasingly agitated, terical, demanded that land, the plane saying: get “We have to ground. * Ezra, The Honorable David A. ting by designation. Judge Hawaii, District for the District of sit- was not Woodard, but was on board who air- get I need land. needWe concerned. Castillo, became flight, working Gon- To ground.” craft on, “very going to see “very angry,” got up what Woodard appeared zalez opening began assuring Gonzalez then heard Poulin upset.” out to take attempted and to land turning bins around overhead plane was “I say, him heard Castillo luggage. say Gonzalez heard Vegas. Las Woodard aisle up the bomb,” ran and she have a of, I to do have to the effect “something indicated who captain, inform to plane this get to I have bomb say Vegas. to Las return would plane T can say, on to went Gonzalez ground? Poulin’s statement up.’” plane this to Castillo: blow According with in accord Woodard’s FBI was chaos, everybody— to the was total The cabin had said when he version of events. point at the the—right our bomb,” many of I saw [a] “I have chaos, and Woodard midst of the In the seat- unbuckle their passengers male by grab- to restrain Gonzalez tried Poulin they—I up and they stood belts and Woodard described bing his arms. throwing people seeing remember with Gonzalez: interchange following know, they you everybody, and punches looked Patrick was—he [Gonzalez] Mr. Gonzalez.... top of on were all me, he—I he said was looked at he hysterical and and [Poulin] was [Gonzalez] to just— you’re going [unintelligible] and he kicking was and swinging kicking passengers time I and At that hitting something. he was kill me trying to take were well, calm passengers said, then let’s him, and the I told him down. let’s, and hold him down you go, let down, going to we’re down, and he—we know, this bring con- you were passengers added Castillo said, “I emergen- want him and he open both released cerned Gonzalez Patrick’s ground.” cy plane exit door: Vegas.” “Sir, back to going were we’re passengers saying, female Many of to something crying. said yelling finally and he screaming and then And yell- it, They know, I’m of, were f— you chaos. total cabin was the effect going .taking die. We’re it going to I’m up, ing, plane “We’re blowing lot of down.” And going We’re crash. down. They hysterical. were the women Gonza- whether question to a response go- were thinking we were were—they down,” plane to take going “was lez they—when Thinking crash. ing to he testified, “I afraid that was Woodard “I say, Mr. Gonzalez heard passengers it was something [and that] had a device was bomb,” point at that and have a my crew myself and harm going to do loose. hell broke just all yes.” my passengers, his made as Gonzalez Castillo recalled bin an overhead opened then Gonzalez row, wom- exit emergency

way toward off set bag, which out a began pulling going saying, “He’s screaming and were en kicked Gonzalez during which Castillo, struggle who was up the door.” open Pou- assisted passengers passengers Poulin. Several afraid,” noted “very attempt to restrain that if in an they thought lin and Woodard because crying were door, strug- of this emergency During the course opened the Gonzalez. Gonzalez his passengers going down. several he “hit gle aircraft was every- “kicking legs” arms the over- began opening When Flight attendants body.” attendant, Kyle bins, another head ultimately were able to restrain Gonzalez parties’ summarized the respective with plastic handcuffs. positions concerning the sentencing issues and reviewed the Guidelines’ calculations. was diverted and it returned stated, The district judge has Vegas “[t]he Las without further incident. considered all of agents Gonzalez, FBI the factors and the advi- arrested who told sory guidelines my them that “he judgment knew what doing he was are twen- wrong (21) ty-one (27) but felt he had twenty-seven to do something I months. plane.” land the At the change plea will impose a 27-month sentence on the hearing, that, Gonzalez acknowledged al- defendant. I require will him to super- be though he had methamphetamine used (3) vised for years, three and to pay day incident, the before he was aware of ($100) one hundred dollar special assess- his actions and understood and knew what ment.” The district court did apply he doing was at time of the incident. the two-level enhancement for obstruction The precise statement that Gonzalez made justice of gave but Gonzalez the benefit of about dispute. bomb is in In the a two-level adjustment downward for ac- plea of change hearing, Gonzalez denied ceptance of responsibility. The district making specific statement “I have a court also specified that the level offense bomb,” but stating, admitted to “what Ido was meaning that applied had have get to do to Do I Jand? nine-level enhancement. have say I have a bomb?” Gonzalez was indicted on one count of ANALYSIS interference with crew member in violation of § 49 U.S.C. 46504. To violate The central issue on appeal is whether § 46504, a defendant’s conduct of “assault- the nine-level Guideline enhancement for ing intimidating or a flight crew member recklessly endangering safety of an or flight attendant” must “interfere[ ] with aircraft applicable is to Gonzalez’s conduct. performance of the duties of the mem- addition, In although he did not raise the ber or attendant ability or lessen[ ] standard proof below, issue Gonzalez the member or to-perform those claims that reversal is warranted because § duties.” U.S.C. 46504. Although the enhancement proven must be by clear initially Gonzalez entered a plea of not and convincing evidence. guilty, he later changed plea his to guilty. Investigation Presentence Report History 2A5.2(A)(2) I. § U.S.S.G. (“PSR”) nine-point recommended a base (from 18) offense level Before 9 to Uniting enactment and under United States Sentencing Strengthening Guidelines by Providing America Ap- § ground that Gonzalez propriate Tools Required to Intercept recklessly endangered safety of the Obstruct (“USA Terrorism Act of 2001 During aircraft. the sentencing hearing, Act”), PATRIOT 107-56, Pub.L. No. took place over sessions, several (2001), 2A5.2(a)(2) § Stat. referred to court heard testimony from flight attend- recklessly endangering safety Nancy ants Kyle Castillo and Woodard. “aircraft passengers.” U.S.S.G. disputed the claim that he had 2A5.2(a)(2) (2001) added). recklessly endangered the safety of an air- 1, 2002, 2A5.2(a)(2) Effective November craft. was amended refer “endangering

At the final' hearing, the safety district court of ... airport aircraft; or an procedural reviewed the history of the ... a transportation facility, mass mass it, he is reck- erum,” terms whether as he ferry.” vehicle, transportation actual endangered the 2A5.2(a)(2)(2003). lessly with the may interfered he that while also led Act PATRIOT The USA endangered pas- even arguably crew 2A5.2(b), subsection, § aof new addition be- inapplicable is adjustment sengers, the weapons. dangerous to the use relating endanger an cause he did Sentencing aircraft. According to the endangered he sum, he claims reasons stated Commission’s not the passengers, flight crew 2A5.2(b) to “ad- added amendment, base current concerns dress[] (in 2A5.2(a)(2)) for level of offense point the extent To inadequate may be

reckless be conduct requires adjustment that the weapon involving dangerous in situations offense, he is correct. underlying of yond the disregard for and reckless C, flight crew interfering with the Append. Simply Supp. life.” U.S.S.G. human (2002). new en Another the nine-level to warrant insufficient amend. “cross 2A5.2(c), added to subsection, argu ultimate But Gonzalez’s hancement. homicide appropriate first, ... endan reference two reasons: fails for ment death in which ... offenses for guideline require does not of the aircraft germent Id. aircraft; results.” to the harm of actual evidence state second, irresponsible amendments, of these effect The overall easily qualified conduct First, ments, threats is two-fold. together, taken safety of to “the endangerment enhance- the sentence as reckless to invoke now easier 2A5.2(a)(2) re- does § an within ... aircraft” because ments 2A5.2(a)(2). endangerment showing § quire indi- if an example, even For passengers. not sur- argument, the first Turning empty up an to blow threatened vidual that to no case points Gonzalez prisingly, an enhancement receive could he harm of actual requires evidence 2A5.2(a)(2). And, case of in the § under 2A5.2(a)(2). Common under aircraft Con- passengers, loaded an aircraft can endan- that a defendant us tells sense assumed, most would reasonably gress causing actual without something ger would endangering that people, See, v. United e.g., Price harm. Second, passengers. endanger Cir.1994) 1011, 1019 F.3d Navy, involves reckless extent that consistently held (“Courts ... death, the weapons or results dangerous po- means a threatened ‘endangerment’ higher. now are penalties overall require proof and does tential harm Adjustment (Resource harm.”) Application Conservation Under actual II. 2A5.2(A)(2)1 omitted); Act) (citations Recovery U.S.S.G. 1, 13 F.2d Corp. v. Ethyl EPA under adjustment dictionary (“Case (D.C.Cir.1976) law and in 2A5.2(a)(2) “if the offense applies means endanger that agree definition safety of recklessly endangering volved harm.”) (Clean actual something less than 2A5.2(a)(2). aircraft.” ... an Act). Air ful- legal the “crucial that argues light our conclusion dress this issue the sen- argument that related 1. Gonzalez's range of falls within conduct premised Gonzalez's unreasonable tence was by enhancement. improperly contemplated court the district conduct contention not ad- We need the enhancement. invoked Nothing suggests that this commonly- involving reckless endangerment of an air- accepted meaning not apply should here. craft. closely situation, In a analogous the dis- In Naghani, the defendant entered the explained:

trict court aircraft lavatory cigarette, and lit a urges Defendant this court ... to find set off a smoke confronted, alarm. When applies only if there is he argued with attendant and actual harm to the aircraft passen- threatened to “kill all Americans.” Id. at gers. Such a construction would mean 1260. Although Naghani denied making that this Base Offense Level ap- this statement or refusing to cooperate, ply only when an aircraft actually jury convicted him of interfering with crashed or suffered damage other as a of a flight duties crew violation of 49 result of defendant’s action. Had this U.S.C. 46504. The district court im- been the meaning, intended the term posed under ‘harming’ would have been appro- more 2A5.2(a)(2). In upholding the enhance- priate than endangering, which means ment, we observed: ‘putting someone or something in dan- The district court found Naghani ger; exposing to peril harm.’ had acted recklessly based on the entire Guerrero, United States v. 193 F.Supp.2d course Naghani’s alleged conduct. (E.D.N.Y.2002) (quoting Black’s The district properly found that Dictionary ed.1999)). Law Naghani was aware of the risk created Recognizing that actual harm to air smoking, his obstreperous behavior craft required is not behavior consti threats, and that such conduct con- tute endangerment, we next consider the gross a stituted deviation a from stan- of “recklessly contours endangering the dard ordinary Naghani care. should safety of ... an aircraft.” Section 2A5.2 have been aware that his behavior would does not define However, “reckless.” Ap divert the flight attendants’ attention plication Note 1 to § 2A1.4 de from their duties require and pres- their fines term the “reckless” the context of ence. an actual emergency had aris- If involuntary manslaughter as a situation in en at another part plane, the the which the defendant “was aware of the distraction would have delayed, and risk by created his conduct and the risk perhaps prevented, an response effective was of a such degree nature and that to flight attendants. disregard that risk constituted gross a de added).2 Id. at viation from the standard of care that a person reasonable The Tenth exercise such a Circuit’s treatment 2A1.4, 2A5.2(a)(2) § § situation.” U.S.S.G. n. 1. app. We is consistent with analy- our adopted this definition in United sis. States v. See United States v. Jenny, 7 F.3d Naghani, Cir.1993). Cir. 953 Jenny, In the defen- 2004), a case that raised similar issues dant was convicted of intimidating flight 2. We cannot suggestion embrace dissent’s cretion. Under the Guidelines in effect at Naghani that binding is "not because sentencing, government required was Naghani court [in did not ] consider Naghani show endangered that had both "the meaning of 'aircraft’ or what level of interfer passengers.” and See U.S.S.G. Guideline,’’ ence satisfied the or that its anal 2A5.2(a)(2) (2001). That the court did not ysis is Dissenting op. dicta. Nagha at 1042. parse of aircraft or analy- that its squarely ni question presented addressed the brief, relating sis was 2A5.2 does not here—i.e., whether appli the district court’s render its conclusion dicta. cation of was an abuse of dis- a base offense stipulated had 1472(j), parties U.S.C.App. under crew During n. 19. § 46504. nine. at 295 level of Id. 49 U.S.C. statute predecessor defensive offense a former Spellman, base Alonzo applied flight, court district The 2A5.2(a)(2). 954. Bears, extremely Id. at was Chicago under end level and flight flight at- Jenny threatening cursed at and abusive sexually sugges- made passengers, and made passengers, other tendants fellow a fe- grabbed gestures, remarks like, it to tive we make hope “I comments a female breast and attendant’s flight male into crashes plane Philadelphia before cock- arm, approached passenger’s also “talked at 287. He building.” Id. attendant’s in the and sat area pit while the door opening about out loud Id. at things. seat, among other jump crew, “Give flight” and said to to make captain was forced 954-55. off this jump and I’ll parachute ame Jenny’s due to landing unscheduled an attempts multiple Id. failed plane.” After affirmed The court at 955. Id. conduct. pas- captain, flight attendants by the under sentencing enhancement re- Spellman, sengers to restrain Jenny “acted 2A5.2(a)(2), holding that that allowed handling priority quested conse- foreseeable an awareness Philadelphia early at the to land Id. 957. at quence.” The district at 288. airport. See id. particu- are also cases district court Two atmo- an created Spellman found Guerrero, the court In larly instructive. Id. at terror.” “pervasive sphere when applied held the court summarized: As unruly so passenger intoxicated under Sections prosecutions typical he must captain concluded insult, defendants 1472(j) and Kennedy F. International to John return harass, cases and in some physically to Santo than continue rather Airport personnel. to kill even threaten Republic. Dominican Domingo, However, in which the rare case be- passenger’s F.Supp.2d 609-10. degree of experience the hitting, sexual shoving, included havior in- Spellman intimidation that fear going to that he and threats touching, passen- many of his fellow in so stilled Id. at 610. aircraft. everyone on the kill in Indeed, cases we gers. few found to cockpit in duties the left his The serious had passengers the which the aircraft the passenger, with deal the worry grounds offender and returned around to be turned had the plane. actually bring doum would these The court held York.3 Id. New cases) (em- (collecting & 13 Id. at 293 n. passen- the aircraft exposed actions added). phasis the meaning of the to harm within gers illustrate, of the Guidelines. diversion these cases As ter- fear and that instills behavior In the second flight the passengers in the other (E.D.Pa. ror F.Supp.2d 285 Spellman, in harm could result crew, and threats could have 2003), held that sufficient, depending are the aircraft en endangerment the reckless applied circumstances, to con- the combination because the hancement, not do so did but in and the fracas threats the bomb pilot to tó necessary course it is not 3. Of security measures crisis, increased Given the cabin. thus cockpit address a leave may well post-9/11, it Here, policies effect in pilot’s ordi- diverting his attention. left pilot to have imprudent for been seriously disrupted have flight nary routine circumstances. cockpit under him alerted an when alarmed stitute reckless of the safe- 2A5.2(a)(2), duct from ambit of ty of the aircraft. Gonzalez’s conduct en- result that makes no common sense. compassed these risks and more. finally, And in occurred both Guerre- sure, simply disrupting

To the flight be ro and Spellman, Gonzalez’s conduct pre- causing attendants and other passengers cipitated emergency an diversion of the discomfort does not rise to level of aircraft and a return Vegas. to Las This endangerment. But reckless Gonzalez’s yet diversion was another risk to the air- statements about the bomb joking were no craft by caused Gonzalez’s escalating ter- Surely matter. threats about bomb— ror.4 couched in terms of I whether “do have to The engendered by chaos goes say I “I’m blowing bomb?” or beyond far his characterization of a threat I’mup, taking beyond it down”—go solely to safety passen- crew and per- interference crew’s gers. safety Their ultimate inextricably formance of duties and gross constitute “a safety bound with the of the aircraft but deviation from the standard of care that a we need not decide whether a solely threat person reasonable in exercise such a passengers would be sufficient to 2A1.4, app. situation.” n. U.S.S.G. invoke the enhancement. Gonzalez reck- “[wje’re passengers yelling, were go- lessly endangered the aircraft itself. He ing to crash. going We’re down.” air does not present the case of a drunken Gonzalez, terror created who candid- passenger tips who cart, over the drink ly admitted he doing, knew what he was attendant, harasses threatens a in reckless the extreme. passenger, or simply obstreperous. The argument that his conduct— requires more and Gonza- impact whatever its on the flight crew and lez’s easily behavior falls within the con- passengers—does not amount to endanger- tours of “recklessly endangering safety ment the aircraft, misses the mark be- ... aircraft.” cause endangered his conduct both the 2A5.2(a)(2). people and the aircraft itself. An aircraft is a captive, closed environment III. Standard of Proof for Reckless En- safety integ- dangerment rity of the aircraft closely are intertwined. 2A5.2 provides Section for a base It doesn’t take an engineer aeronautical offense level of nine for the statute of recognize that a threat of a bomb conviction, 49 U.S.C. 46504. U.S.S.G. environment and the havoc that such a 2A5.2(a)(4). However, “if the offense might threat cause is a threat safety involved recklessly endangering Nowhere aircraft,” of ... is requirement there a the that an base actual offense level is 2A5.2(a)(2). weapon or 18. bomb be on plane. found the Gonzalez ar Such a narrow interpretation gues that re- the enhancement must sup be highly move reckless and threatening eon- ported by clear and convincing evidence. 4. The dissent's statement that “the more rea- Vegas, aircraft back to Las even under emer- [regarding situations, sonable inference the gency, aircraft's di- distress to be safer than version] would seem to be that proceeding ... to Ontario once Gonzalez threat- that concluded it would be to return to bring ened to plane. down the But such safer Vegas, Las rather than continue on to Ontar- certainly diversion was not safer than the io, California,” 1042, dissenting op. at can operation normal of the to Ontario in only logical be described fallacy. as a disruptive of absence Gonzalez’s behavior pilot apparently considered a diversion of the and threats.

1039 support in of offered 3. Do the facts rule, seek party general aAs new of- create the enhancement must estab level an offense adjust ing separate punish- requiring fenses evidence of the preponderance aby lish ment? See Unit is merited. adjustment 1155, Charlesworth, 217 F.3d in based on sentence v. 4. Is the increase ed States Cir.2000). However, (9th a sentenc conspiracy? a the extent of 1158 extremely dispro “an has factor that ing in of increase the number 5. Is the relative the sentence effect portionate equal than or less offense levels may require conviction” to the offense four? by clear to find factor

district the enhanced sen- length 6. Is evidence, by than rather convincing length of than double tence more See Unit the evidence. preponderance by the ini- authorized the sentence 1117, 1127 Munoz, F.3d 233 v. ed States in a range sentencing guideline tial Cir.2000).5 (9th oth- where the defendant would case height relatively received a conclude that erwise Although have we here, re we appropriate is short sentence? ened standard did because Gonzalez error plain view for 848, Johansson, 249 F.3d v. the district before argument not raise this omitted) Cir.2001) (citation (9th (quot Bahe, 201 F.3d v. States court. United Valensia, 222 F.3d v. States ing United Cir.2000). “Plain error is 1124, 1127 (9th Cir.2000), 1173, 1182 granted cert. (2) (1) error, there found where grounds, 532 on other judgment vacated (3) obvious, affected or that was clear 1222, 149 L.Ed.2d U.S. S.Ct. (4) seriously rights, substantial (2001)). controlling. single factor is No fairness, integrity, public affected Dare, 425 F.3d at judicial proceedings.” reputation of factors are either the first four Although omitted); (citation marks quotation Id. weigh or do relevant particularly Jordan, 256 F.3d see United standard, last heightened favor of a Cir.2001) plain error (applying we significant. are Jordan two factors failed defendant a case where standard enhancement, that a nine-level concluded preponderance object application here, “strongly supports we have sentencing). standard at of the evidence convincing evi- clear application heightened stan- assess whether Jordan, To F.3d at 929. dence standard.” totali- review the factor, we proof applies, increase, dard the fifth offense level circumstances, States v. ty of heightened in favor of heavily weighs (9th Cir.2005), Dare, factor, whether The sixth burden. following factors: including the more sentence of the enhanced length fall sentence length sentence the enhanced 1. Does than double the range sentence initial Guideline the maximum within authorized indictment? other- alleged defendant would crime a case where relatively short sen- received negate wise sentence enhanced 2. Does the favor. in Gonzalez’s tence, likewise counts of innocence presumption ap- raised The nine-level enhancement for the proof of burden prosecution’s to six from zero range plicable Guideline in the alleged crime indictment? Staten, v. States Post-Booker, also United remain these same standards 5. Cir.2006). Kilby, 443 v. applicable. See Cir.2006); see & n. 1 F.3d 1140-41 (where probation months is a op- viable the court found the by enhancements clear tion) months, to 27 evidence, is more convincing and based on certain upper made). than four times the of the end statements the judge range. Guideline Because evidence in this case was overwhelming, it is evident that previously We have the facts invoked the clear to the related convincing enhancement were estab- evidence standard where by lished clear convincing the two factors favor evidence. applica- final its tion, dispute The nothing suggests language over Gonzalez’s we should with respect take a to the approach different here. bomb not change See Jor- does dan, 256 at 929 calculus. Even (holding height- accepting F.3d Gonzalez’s ver- sion, ened coupled standard have applied should been the uncontroverted tes- when timony the sentence was more of the flight dou- than attendants and other bled). (O’Scannlain, J., aspects See also id. at 934 behavior, Gonzalez’s the stan- (“Since concurring) Hopper, easily we dard is appear met. consistently have held that when the en- AFFIRMED. greater

hancement is than four levels and more than applicable doubles the sentenc- TASHIMA, Circuit Judge, dissenting: ing range, then the enhancements must be convicted, Gonzalez was plea on a proved under the ‘clear and convincing’ guilty, of one count of interference with a cases)). standard of proof.” (collecting flight crew member in violation of 49 U.S.C. court specify Accepting district did recommen- dation of proof Officer, standard of nor did the Probation the district counsel raise the issue. Gonzalez is not doubled Gonzalez’s base offense lev- reversal, however, entitled to simply el—from level 9 to be level 18—for recklessly cause the district court should ap endangering safety have aircraft un- plied the clear convincing standard. der U.S.S.G. without making The failure to articulate the any specific did finding standard of fact that prejudice Gonzalez. As explained was, we indeed, of the aircraft endangered. in Jordan: I disagree Because that this enhancement applicable

An this I plain error that is respectfully must also ‘affect dissent. substantial In most rights.’ this cases language means ‘the error must reading Even the sentencing record and prejudicial: been It must have af- all of the materials available district fected the outcome of the district court court at sentencing light most favor- proceedings.’ ... Jordan therefore able to upholding sentence, the record specific must make a showing preju- does not come close to establishing that dice However, satisfy prong. posed any threat to the aircraft is evident beyond doubt that Jordan’s in this case. plain Based on increased incarceration caused § 2A5.2(a)(2), whether or not Gonzalez’s challenged enhancements prejudicial conduct threatened attendants these enhancements could not have

if separate is a question, to been proved by clear and convincing which this enhancement speak. does not evidence. majority mistakenly conflates the two added). 256 F.3d at concepts—threat See or endangerment of a also Servs., Technic and endangerment (9th Cir.2002) F.3d (holding on Acceptance majority’s rea- plain error review the record soning reflected would render the enhancement un-

1041 navigation in or flight for 2A5.2(a)(2) virtually ev- structure applicable § der Third New International § air.” Webster’s 46504. of 49 U.S.C. for violation ery case (2002). Dictionary (Unabridged) 46 unam- contrary to Guideline’s is This intent of and the clear language biguous disregards the majority improperly Sentencing Commission. of “aircraft” and includes plain meaning within passengers” attendants “flight rules of statuto applies the “This Court Under meaning of “aircraft.”1 the Sen interpreting when ry construction endanger- or majority’s reading, no risk language If the tencing Guidelines.... any itself or of its ment to the aircraft mean unambiguous, plain statute Robinson, in order for present need be components v. States ing controls.” United 2A5.2(a)(2) in this (9th apply. The facts Cir.1996); 1325, see also 1328 94 F.3d why majority’s Carter, 909, vividly illustrate case 911— v. States United untena- the Guideline is Cir.2005) interpretation of (9th (examining 12 ble, unsupported and 2K2.1(b)(4) notwithstanding its to the according of U.S.S.G. construction). irresponsi- bald assertion “Gonzalez’s In as statutory rules “ statements, easily and conduct otherwise ble threats meaning, ‘unless sessing plain to ‘the qualified as reckless interpreted as tak defined, will be words within the mean- safety of ... an aircraft’ contemporary, common ordinary, ing their ” 2A5.2(a)(2).” Maj. at 1035.2 op. Carter, ing of (quot at 911 F.3d meaning.’ 421 37, States, 444 U.S. v. ing Perrin no bomb on the In there was this (1979)). 311, 199 42, 62 L.Ed.2d 100 S.Ct. no that Gonza and there is evidence plane, (and 2A5.2(a)(2) panicked empty-handed), here, empty lez’s calls applicable As the ma safety of endangered the threat [of “if the offense for an enhancement “air composing or chine or structure member crew interference majority’s sugges Contrary to craft.” recklessly endan- flight attendant] involved tion, attendants the fact that an airport an safety of ... gering disturbed, 2A5.2(a)(2) panicked, even passengers were (empha- aircraft.” is insuffi definition, was turned around added). and the typical To take a sis There was meet the Guideline.3 cient to machine weight-carrying “a “aircraft” is sentencing, as discussed adequate at "endangerment record majority concludes 1. below, clearly did not meet government require evidence of does aircraft here, holding Maj. op. contrary at to the actual harm aircraft.” its burden dispute original). I do not majority. 1035 endanger an majority's point that one can harm. See object causing it actual without "diversion of majority that the 3.The asserts 1011, Navy, F.3d States Price v. United Vegas" "was to Las the aircraft and return EPA, 1994); (9th Corp. Ethyl v. Cir. aircraft caused yet another risk to the However, 1, (D.C.Cir.1976). the ob F.2d op. Maj. at escalating terror.” Gonzalez's endangerment under U.S.S.G. ject explain how majority does 1038. But aircraft, mean must still be the endangered the decision and maneuver involved, opposed ing the machine is, Vegas returning to Las unless attendants, was not shown in this reason, dangerous to unexplained more some case. Ontario, continuing than explanation, and California. Absent further seeking proof party The burden of record, reason the more is none in the there by a adjust to establish an offense level that, because to be inference would able seem ad evidence that the preponderance of the "[s]hortly take happened after this incident v. Charles justment is merited. United off,” Cir.2000); op. concluded Maj. worth, 217 F.3d 1157-58 Vegas, Las Barnes, to return to would be that it F.2d safer any on to Ontario. 1993). rather than to continue Having make an failed to Cir. 1042 case, through in this craft” presented specific meaning

no evidence or the of that en Nursing hancement. See Local otherwise, Home testimony from the 144 581, Demisay, Pension Fund v. 508 U.S. ability effectively operate to pilot’s (1993) 2252, 124 L.Ed.2d 522 S.Ct. inhibited, or that the diversion (characterizing as dicta writings that were any; safety. risk to aircraft Also caused “uninvited, unargued, unnecessary to lacking any that the return of evidence holdings”). Accordingly, Court’s Na Vegas precipitated any aircraft to Las dan instructive, ghani much less control moreover, ger, distinguishable this case is ling. upon majority from the cases which the majority’s Under the interpretation of relies.4 moreover, Naghani, majority importantly, improp- Most apply virtually would every ease of in- attendant, terfering flight with a erly rendering Naghani, relies on United States v. the distinction that the Guideline (9th Cir.2004). draws Contrary 361 F.3d 1255 to meaningless. The court there stated that majority, I Nagha- do not believe that an emergency “[i]f actual had at .arisen ni I controls and conclude that what con- part another plane, of the the distraction stitutes of the is an aircraft [based on the defendant’s conduct] First, open question. Naghani is not delayed, perhaps prevented, an binding because the court did not consider response by effective the flight attend- of “aircraft” or what level of ants.” Naghani, 361 F.3d at 1263. Un- interference satisfied the Guideline. der logic, any interference with a questions squarely These were never flight endangers attendant the aircraft it- Instead, briefing raised. geared true, self. If this were no enhancement question towards the of what constituted necessary would be because the utmost conduct, reckless and there is no indication punishment implied would be of- that the contemplated the issues ad- conviction, majority fense of as the seems here, namely dressed the definition of “air- to hold.6 event, majority’s retort pointless speculate weak that "such It would be what sort certainly diversion was than the emergency” flight nor of "actual attendant safer Ontario,” id. at operation flight to, mal responsible of the responding would be ex- added), (emphasis cry cept 1038 n. 4 flight far from to note that a attendant has no endangered establishing that such responsibility “diversion” operation for tire safe the aircraft. responsibility That is the flight deck crew. government 4.Even if the were correct that a date, endanger safety threat contrary, alone can appears 6. To the to have (i.e., any weapon without undisputed or bomb been endangering safety needing present), to be one would still need a of an aircraft was not an element of a viola- end, causal connection between the threat and ac- tion of 49 U.S.C. 46504. To this it is endangerment—to tual important the mechanics language note that the actual structure of an aircraft—before governing enhance- 49 U.S.C. "interference apply. attendants,” ment could The district court did not crew members any "lessening] ability findings endanger- make factual about the member or covers ” peiform ment testimony and the his or her duties. added). from attendants indicated fear for them- Clearly, U.S.C. plane, selves and thereby and the the statute takes into account the less- passengers’ emergency ening fear about ability exit of a attendant’s to' ensure being opened. Notably, open- door the feared of the aircraft. See United Meeker, ing emergency Cir.1975) exit door was shown to 14 n. ("We nullity be a testimony because there was partici- feel ... when defendant sentencing hearing impossible pates proscribed that it is conduct causes open flight. a door in autonomy crew member to lose his over do- of the enhancement. application the reason, Naghani in the dicta For this it) is sus (and on that the record disclosed: majority’s reliance the liability punish because pect criminal to that he had Captain testified Williams oper when the imposed may only be ment the cockpit to deal with defen- leave or Guideline of the statute language ative dant, he learned from the when See that result. clearly dictates at issue not handle the that she could 812, 808, States, 401 U.S. Rewis United v. tes- Captain Williams situation herself. (1971) 1056, L.Ed.2d 493 28 S.Ct. 91 risk that this increased the to tified ambit of concerning the (“[A]mbiguity aircraft, designed which is safety of the in fa be resolved should criminal statutes pilots. two Defendant to be flown States, v. United lenity.”); of vor Bifulco endangered pas- the aircraft further 2247, 381, 387, 65 100 S.Ct. 447 U.S. pushed Captain sengers when he (“This (1980) lenity of policy 205 L.Ed.2d Williams, exposed the air- because this interpret will not that the Court means having danger crew to the craft and to increase so as criminal statute federal only incapacitated. Not captain their an individual it places that penalty testify he Captain did Williams be based interpretation can when such making was thought defendant as to what Con guess than a on no more unsafe, confirm that he his actions but intended.”) (citations quotation gress endanger- was defendant believed that omitted). It well-established is marks Cap- passengers. aircraft and ing the penalty subjected to not to be “one ‘is that he left testified tain Williams plainly of the statute unless the words there was cockpit when he concluded ” Campos- v. States impose it.’ United and, danger potential 471, Serrano, 293, 297, 30 92 S.Ct. 404 U.S. Captain returning cockpit, upon (1971) added); see 457 L.Ed.2d aircraft around Williams turned Karaouni, F.3d 379 States v. also United he City York because returned to New Cir.2004) (same). is Such 1143 unsafe to continue that it was concluded the situation here. Domingo. on to Santo issue, controls on this Naghani if Even Id. at 609-10. was in that case presented the evidence Jenny, v. 7 F.3d 953 States United was that the suggest sufficient aircraft Cir.1993), distinguishable also because it sufficient whereas was not endangered, to attend cockpit in this captain left such to establish Id. at cigarette, cre- behavior. Naghani inappropriate lit case. defendant’s Where smoke, ciga- Moreover, then flushed ating Jenny toilet, more rea- one could rette down the definition “reckless” concerned with itself sonably conclude defining precise engage in and did not fire). danger of (by the endangered endangered to be what needed scope of F.3d at 1258. 361 Naghani, See apply. See order for the distinguish The facts also id. 955-57. Guerrero, v. States Spellman, v. United States (E.D.N.Y.2002), this case from similarly F.Supp.2d (E.D.Pa.2003), F.Supp.2d 285 where to 243 much more favorable a case presented contrary previous deci- duty, dicta itself ordinarily a viola ni’s ing be his what court, occurred.”); insofar as read 1472(j) Unit sions of this has tion of section Flores, (1st 49 U.S.C. the elements of satisfaction ed v. Tabacca, warranting the enhance- 1992); F.2d 46504 itself Cir. (9th Cir.1991). Accordingly, Nagha- ment. testified there history were addition- of United Flight September 93 on “ al risks and that there was ‘no tolerance 11, 2001, it is control of the cockpit that ” for error’ landing that he was determines, to a large degree, caused execute due to the defendant’s the aircraft response and it is in to those conduct. inappropriate Id. at 288.7 events that regulations the new requiring All of the out-of-Circuit- relied cases on the strengthening deck doors and by Guerrero, the majority—Jenny, and locks was promulgated.8 See id. In this Spellman—share a common characteristic control of the cockpit safety of the lacking them, that is in this case. all of flight crew was never endangered. the left the pilot flight cockpit— deck—the majority The speculates that the pilot’s to the unruly passenger confront in the flight “seriously routine was disrupted.” passenger compartment. Here, by con- Maj. op. But, n. again, at 1037 3. there is trast, the pilot did not leave cockpit; the no evidence of how any disruption serious Gonzalez did not flight interact the may have been and disrup- whether such at all. In regard, crew this important is tion endangered safety the of the aircraft. to note that FAA regulations the requiring Indeed, majority’s the concession that “it cockpit that doors be reinforced to thwart may well imprudent have been pilot for the September 11-like entry unauthorized of to have left the cockpit under the circum- a passenger into the cockpit already were stances,” id., is a place that, virtual well before admission the date of this inci- because Flightcrew flight dent. See the crew Compartment securely Ac- remained Designs, cess and Door Fed.Reg. the cockpit, the aircraft was not endan- (Jan. 2002). As we know gered. from the majority 7. The relies on these cases to state no that he indication "was aware of risk aircraft, that "diversion of the behavior that created his conduct” to the See aircraft. fear and terror in passengers instills the other Naghani, (applying 361 F.3d at 1263 defini crew, flight or the and threats that could tion of reckless from U.S.S.G. 2A1.4 sufficient, result harm to the aircraft are 2A5.2); 2A1.4, Application Note depending on the combination of circum- too, government 1. Notably, easily could stances, to endangerment constitute reckless attempted by present meet its burden safety Maj. of the op. aircraft.’' ing testimony pilot perform of the that his However, 1037-38. there is no evidence in ance was affected or that he believed the this case that diversion of the aircraft endan- danger, aircraft any was in other evidence gered the making passengers that the endangered. gov aircraft (and crew) flight even the and empty fearful Thus, ernment majority's failed do so. threats cannot be carried out can scarce- general statements about Gonzalez’s reckless ly endanger be any said to more ness, 1038-39, Maj. op. at inapposite are be than interference with attendants alone any cause such endanger recklessness did not does, under 49 U.S.C. Tellingly, 46504. safety of the majority also majority immediately acknowledges l states that "[i]t doesn’t take an aeronautica "simply disrupting attendants and engineer recognize that a threat of a bomb causing passengers other does discomfort in [an aircraft] environment and the havoc rise to the endangerment." level of reckless might that such a threat cause is a threat to Maj. op. at majority 1038. What the fails to safety Maj. op. aircraft.” at 1038 dissent, acknowledge, and a reason I is that added). (emphasis Although I fail to follow this is the finding kind of the evidence assertion, logic emphasis of this its supports. here "might speculation super cause” renders the Significantly, fluous. Because Gonzalez did not with the interact actualization crew, question potential such is what prov whether his con- should have been could properly duct have been prove construed en in order to one, open reckless also an there because of the aircraft. It was not. beyond plain Even if one looks strength further position is Gonzalez’s Guideline, history majori that the cases the by the fact ened supports also this enhancement cir only cases where are not the ty cites majority position. Before as the application favorable to the cumstances mentions, applied See, e.g., appeared. the enhancement have endangerment of “an aircraft and reckless Vickaryous, 1996 WL See, passengers.” e.g., U.S.S.G. 2A5.2 Cir.1996) (applying *1-*2 2773 at (2001) added). The deletion of where enhancement under requirement be endan- gered, alteration of and the this enhance- jaw, in the struck the defendant airport ment to “an or an air- apply per causing him to have severe difficulties craft,” enhancement—at show duties, as including requiring forming his geared time Gonzalez was sentenced—was emergency landing); Unit sistance for solely punishing towards conduct that en- Bocook, v. 1995 WL ed States dangers objects, people. not See U.S.S.G. curiam) Cir.1995) enhance (affirming (per C, 637, at Supplement Append. amend. 2A5.2(a)(1), in dealing § with ment under change accompanied by This endanger than reckless rather tentional for assault and other penalties enhanced dangers people may attend these ment, pretended to the defendant where provisions, these other it is crimes. Given false gave traffic controller and be an air all the more clear Gonzalez’s conduct they pilots, including as statements meaning not come within the of this did land). situ attempting were penalties pro- enhancement. The overall cases, different from these quite ation was higher amendment were than vided should and I believe these distinctions moreover, before, reading so enhance- guide our decision here. according plain meaning ment to its seems Congress’ with intent.9 quite consistent C, 637, Moreover, pend. at 234. commentary amend. to the 2002 amendment 9. The suggests, the structure of U.S.S.G. recognized level concern that the base offense disregarding the fact of the 2A5.2—even 2A5.2(a)(2) inade provided in U.S.S.G. the Guideline amendment—intimates involving dangerous quate a in situations endangering flight equate attend- does not disregard safety weapon for the and reckless aircraft, endangering the because it ant with Supplement to of human life. See U.S.S.G. provides separate to assault cross-reference 637, C, Append. amend. at 247. To sanction resort to assault Guidelines Guidelines when accordingly, involving peril, mortal conduct higher in a base offense level. would result Sentencing supplemented the Commission 2A5.2(a)(3). See U.S.S.G. provide offense Guideline to for minimum Thus, majority misreads the effects of id.; 2A5.2(b)(1) level of 24. See amendments, impli- misapplies their (2002). commentary The also indicated Maj. op. See at 1035. cations to this case. becoming more con the Commission was is, majority that "it is now That writes transportation to mass cerned with threats enhancements easier to invoke the sentence facilities, Supple systems and see U.S.S.G. require not because does 247, C, Append. amend. ment passengers.” showing endangerment to the my reading which is consistent with original). Maj. op. at 1035 Guideline. However, endangerment Moreover, previous iteration of the question here is relevant in this case. Sentencing that the Commis- Guideline shows clearly aircraft and at- sion understood majority misunderstands the en- also tendant/passenger safety concepts. as distinct states, example, that when it as an hancement supports Gonzalez's claim This fact further up to blow "even if an individual threatened unambigu- that the of "aircraft” is he could receive an en- empty 2A5.2(a)(2).” This not include attendants under ous and does hancement a threat to Ap- be the because passengers. Supplement to should not See U.S.S.G. aircraft-endangering range; consequently, en Guidelines I Because apply if there is hancement should reverse and remand for resentencing. For interfering than nothing reasons, more respectfully all of I these dissent. potentially harming them attendants wrongfully applied it was passengers, I Accordingly,

in this case. would vacate

the sentence and remand this case to the See, e.g.,

district court. United States v. (9th Cir.2006)

Kilby, 443 F.3d

(“If there was material error the Guide calculation, lines we will remand for resen America, UNITED STATES of tencing....”); Meny v. Plaintiff-Appellee, weather, 696-97 Cir. 2005) (“[I]f imposed the sentence resulted MALE, JUVENILE Defendant- application from an incorrect of the Sen Guidelines, Appellant. tencing and the error was not harmless, ordinarily will we remand to the No. 06-30587. district court for further sentencing pro ceedings, permitting the district Appeals, court on United States Court of proper remand to consider the Guidelines Ninth Circuit. along sentencing sentence with other fact Argued and Submitted June 2007.

ors”).10 July Filed 2007. sum, this simply case was case of attendant, interfering with a

applying the enhancement under U.S.S.G. here tantamount saying virtually

that it applies any case under imposed U.S.C. 46504. The sentence unreasonable because the

district court miscalculated the applicable (9th Cir.2001) ("[I]t up endanger blow an aircraft does beyond is evident doubt if, moreover, Even “in the case of an Jordan's increased incarceration caused aircraft. aircraft loaded with challenged passengers, Congress prejudicial rea- enhancements is assumed, if these sonably enhancements could not have been people, as would most evidence.”). proved by convincing clear and endangering endanger an aircraft would convincingly argues Gonzalez also that it is passengers,” that is not what the Guideline possible that the district court based its find- Congress endanger- referred to references. ment of the ing recklessly on a belief that Gonzalez en- required, what dangered only attendants and/or Congress protect whether or not intended to passengers. government argu- made an passengers through application en- effect, namely ment that could be read to this hancement, Congress language did not use addressing when it said that it was "first in its test. referred issue whether or not the defendant was—had ap- Even if the enhancement could have recklessly endangered passengersf] other lives Gonzalez, plied surely prejudiced he was airplane." nothing There is in the proven by because the enhancement was not record indicate that the district court did convincing clear and which end evidence—to misapprehension not share the same Guideline, glaring any testimony I note the particularly absence of light of its failure to See, issue, danger about any findings make on this and this fact Jordan, e.g., United also counsels favor of remand.

Case Details

Case Name: United States v. Gonzalez

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 3, 2007

Citation: 492 F.3d 1031

Docket Number: 05-10543

Court Abbreviation: 9th Cir.