Submitted: November 17, 2017
from United States District Court for the Western District of
Missouri - Kansas City
COLLOTON and GRUENDER, Circuit Judges, and READE, District
GRUENDER, CIRCUIT JUDGE.
Rogers repeatedly pointed a laser at a police helicopter,
temporarily blinding the pilot, and pleaded guilty to one
count of aiming a laser at an aircraft in violation of 18
U.S.C. § 39A. On appeal, Rogers challenges the district
court'sapplication of a nine-level sentencing
enhancement for recklessly endangering the safety of an
aircraft, pursuant to United States Sentencing Guidelines
("U.S.S.G.") § 2A5.2(a)(2). Because the
district court did not clearly err in determining that Rogers
recklessly endangered the safety of an aircraft, we affirm.
sentencing, the district court heard testimony from FBI
Special Agent Karen Jarman. According to Jarman, Rogers
initially denied knowing that his laser hit the helicopter.
She interviewed him a second time after speaking to the
pilot. Rogers then admitted he intentionally pointed his
laser at the helicopter. Rogers claimed he did not know that
anyone could be hurt, and Jarman explained to him the dangers
of pointing a laser at an aircraft. But according to Jarman,
Rogers also admitted he knew his conduct was illegal.
Moreover, the district court received an exhibit containing
police reports with statements from Rogers's neighbors.
One neighbor recalled Rogers shining the laser at him as he
drove his car but aiming it away as the car turned and its
headlights began to illuminate Rogers.
district court concluded that Rogers "showed that he was
aware of the reckless endangerment that his actions caused by
shining the laser at the aircraft." As the court
He knew it was illegal. He did it on purpose. He followed the
aircraft. He had exhibited his knowledge of the dangerousness
by pointing the laser at a car earlier and then interrupting
that activity when his presence was discovered or the car was
turning toward him. He lied to the police. He did try to
conceal himself immediately after the conduct of pointing the
laser at the helicopter . . . .
district court overruled Rogers's objection and applied
the enhancement. Thus, Rogers's advisory guidelines range
was 41 to 51 months, and the district court imposed a
sentence of 36 months' imprisonment.
reviewing the district court's determination of the
advisory sentencing guidelines range, we review the district
court's factual findings for clear error and its
construction and application of the guidelines de
novo. United States v. Hagen, 641 F.3d 268, 270
(8th Cir. 2011). In particular, we review a district
court's finding of recklessness for clear error.
United States v. Valdez, 146 F.3d 547, 554 (8th Cir.
1998). "[A]s long as the determination is plausible in
light of the record as a whole, clear error does not
exist." United States v. Farrington, 499 F.3d
854, 859 (8th Cir. 2007).
§ 2A5.2 does not define "reckless, " the
parties agree that we should use the definition from the
application notes for § 2A1.4 cmt. (n.1) (involuntary
manslaughter). This provision 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).
it is a close question, we conclude that the district court
did not clearly err in finding that Rogers recklessly
endangered the safety of an aircraft. As Rogers's
attorney admitted at oral argument, his earlier behavior in
turning away the laser from the automobile established that
he was aware of the danger of shining a laser at someone
operating a vehicle. In addition, Special Agent Jarman
testified that Rogers admitted he knew shining the laser at
an aircraft was wrong. In sum, Rogers knew his conduct was
wrong and knew it posed a risk to the driver of an
automobile. Thus, it was reasonable for the district court to
infer he was aware of the danger of pointing his laser at an
aircraft. As a result, the district court's finding was
"plausible in light of the record as a whole."
See Farrington, 499 F.3d at 859.
warns that applying the enhancement in this case means that
the enhancement must apply to every violation of 18
U.S.C. § 39A. We disagree. The record must show, as it
did here, that the defendant was aware of the risk to the
aircraft and grossly deviated from the standard of care in
disregarding it. For this reason, this case is
distinguishable from the Ninth Circuit's opinion in
United States v. Gardenhire, 784 F.3d 1277 (9th Cir.
2015). In Gardenhire, the record was "devoid of
evidence" that the defendant was aware of the risk
created by his conduct. Id. at 1280. Here, by
contrast, evidence supported the district court's
conclusion that Rogers was reckless. Insofar as
Gardenhire's reasoning might ...