United States v. Baca

Citation: 350 F. Supp. 3d 1164Docket: No. CR 17-2386 JB

Court: District Court, D. New Mexico; October 30, 2018; Federal District Court

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The Court addressed the Defendant Nicholas Baca's objections to the Presentence Investigation Report (PSR) regarding the appropriate base offense level and potential enhancements. Key issues considered were whether Baca 'recklessly endangered the safety of the aircraft,' justifying a base offense level of 18 under U.S.S.G. 2A5.2(a)(2), and the applicability of a 6-level enhancement for the use of a dangerous weapon under U.S.S.G. 2A5.2(b)(1)(B)(ii).

The Court found that the PSR's calculation was incorrect since there was no evidence Baca was aware of the risks associated with pointing a laser at the helicopter, which is necessary for a recklessness finding. Consequently, the Court sustained Baca's objection, determining the appropriate base offense level to be 9 under U.S.S.G. 2A5.2(a)(4). Additionally, the 6-level enhancement was deemed inapplicable because U.S.S.G. 2A5.2(b)(1) requires a prior finding under subsection (a)(1) or (a)(2) and the use of a dangerous weapon, neither of which were satisfied.

The factual background reveals that Baca pled guilty to knowingly aiming a laser pointer at a helicopter, resulting in temporary blindness of the pilot. Subsequent events included Baca fleeing in his vehicle, leading to a police pursuit, and ultimately being arrested after abandoning the vehicle. A laser pointer and a small amount of heroin were found in the vehicle. The Court accepted the PSR's factual findings as they stood unchallenged.

On September 6, 2017, Nicholas Baca was indicted by a federal grand jury for aiming a laser pointer at an aircraft, violating 18 U.S.C. § 39A(a). Baca pled guilty on May 8, 2018, admitting that on July 29, 2017, in Bernalillo County, New Mexico, he knowingly aimed the laser beam at a helicopter operated by the Bernalillo County Sheriff's Department. Baca claimed he did not intend to cause harm, citing influences of narcotics and boredom, asserting he was unaware of the potential danger.

In the Presentence Report (PSR), the U.S. Probation Office set Baca's base offense level at 18, applying a 6-level enhancement for the use of a dangerous weapon. Baca objected to this classification, arguing that he did not recklessly endanger the aircraft and contested the application of the enhancement as impermissible double counting, as the use of the laser pointer was already included in the base offense level. He maintained that the correct base level should be 9, which would exclude the applicability of the enhancement.

Assistant United States Attorney George Kraehe supported Baca's objections. The Court indicated it would address these objections and the Probation Office's responses in its analysis.

The excerpt also references relevant sentencing law, specifically the Supreme Court decision in United States v. Booker, which rendered the Sentencing Guidelines advisory rather than mandatory, while still requiring courts to consider the factors outlined in 18 U.S.C. § 3553(a). These factors guide sentencing decisions to ensure that sentences are sufficient but not excessive, reflecting the seriousness of the offense, deterring criminal conduct, protecting the public, and providing necessary rehabilitation for the defendant.

A defendant found guilty of an offense under federal law must be sentenced according to the provisions of 18 U.S.C. 3551, aiming to fulfill the purposes outlined in section 3553(a)(2). Sentencing courts are directed to consider several factors, including the Guidelines, the nature of the offense, the defendant's character, available sentences, uniformity in sentencing, and the need for victim restitution. Although the Guidelines are no longer mandatory, they remain a significant factor that warrants careful consideration, reflecting extensive research and the political will regarding sentencing. A reasonable sentence should avoid unwarranted disparities among similarly situated defendants. The Tenth Circuit holds that a sentence within the Guidelines range is presumptively reasonable, although this presumption is for appellate review rather than for the trial court's application. The trial court must independently evaluate the 3553(a) factors without presumption in favor of the advisory Guidelines. The court's initial task is to determine the advisory-guideline sentence before addressing any arguments for downward departures. The Supreme Court has emphasized that sentencing judges are uniquely positioned to assess the relevant facts and their implications under 3553(a). In a specific case involving an illegal immigrant re-entering the U.S. to support family, the court found no justification for deviating from the Guidelines sentence, indicating that the circumstances were not materially different from similar cases.

In United States v. Jager, the court found a variance in sentencing appropriate due to the defendant's exemplary military service, even though it did not justify a departure from the sentencing guidelines. The legal framework regarding the burden of proof for enhancements under the sentencing guidelines is outlined, referencing key Supreme Court cases. In Apprendi v. New Jersey, the Court asserted that any fact increasing a penalty beyond the statutory maximum must be proven to a jury beyond a reasonable doubt, with exceptions for prior convictions. Blakely v. Washington clarified that the statutory maximum refers to the highest sentence a judge can impose based solely on jury findings or admissions by the defendant. United States v. Booker ruled that Apprendi does not apply to the now advisory sentencing guidelines. Alleyne v. United States extended Apprendi's principles to mandatory minimum sentences. The Tenth Circuit's ruling in United States v. Magallanez confirmed that the enhancements found by a district court are permissible, allowing consideration of a defendant's conduct beyond the jury's verdict, as demonstrated in a case where the court attributed a higher quantity of methamphetamine to the defendant than the jury had indicated. This adjustment significantly increased the defendant's sentencing range.

United States v. Booker rendered the Guidelines ranges effectively advisory; however, the Tenth Circuit in United States v. Magallanez clarified that district courts must still consider these ranges, determined by the preponderance standard. The court acknowledged arguments for a higher standard of proof regarding relevant conduct that significantly increases sentences but maintained that, in ordinary cases, only a preponderance of evidence is necessary. Additionally, the application of sentence enhancements does not conflict with the Supreme Court's ruling in Apprendi v. New Jersey, which mandates jury submission only for facts increasing a sentence beyond the statutory maximum. A defendant can only claim an Apprendi error if the relevant facts raise their sentence above this maximum threshold. The Alleyne v. United States decision expanded Apprendi by requiring that facts increasing a mandatory minimum sentence be proven beyond a reasonable doubt to a jury, but allowed judges to find advisory sentencing factors by a preponderance of evidence.

Regarding reckless endangerment under U.S.S.G. 2A5.2(a)(2), a 9-level enhancement applies if the offense recklessly endangers the safety of an airport, aircraft, mass transportation facility, or vehicle. The term "recklessly" is not defined within the guideline itself or its commentary, but the Tenth Circuit, along with the Ninth and Eleventh Circuits, has adopted the definition from U.S.S.G. 2A1.4. This definition requires that a defendant must be aware of the risk created by their conduct, with the risk being a gross deviation from what a reasonable person would consider acceptable. The Fourth and Eighth Circuits have also employed this definition in similar cases under U.S.S.G. 2A5.2.

To establish a 9-level increase in the base offense level under U.S.S.G. 2A5.2, the government must demonstrate that the defendant was aware of the risks associated with their actions, as defined by recklessness in U.S.S.G. 2A1.4. The court's record must indicate that the defendant grossly deviated from the standard of care, as illustrated in prior cases. For instance, in *United States v. Rodriguez*, the government failed to prove recklessness due to a lack of evidence regarding an average person's awareness of the dangers of aiming a laser at an aircraft. Similarly, in *United States v. Gardenhire*, the reckless endangerment enhancement was improperly applied due to insufficient evidence of the defendant's awareness of risks.

Conversely, the Ninth Circuit found sufficient awareness in *United States v. Naghani*, where a defendant's conduct included lighting a cigarette in a lavatory, triggering a smoke alarm, and making aggressive threats. The court noted that the defendant received clear warnings about the dangers of his actions, demonstrating awareness of the risks involved. In *United States v. Gonzalez*, the court upheld the enhancement for a bomb threat on a flight, reasoning that such threats inherently jeopardize aircraft safety.

The Eighth Circuit supported a finding of reckless endangerment in *United States v. Rogers*, where the defendant's admission of the dangers of shining a laser at a vehicle indicated awareness of the risks associated with similar conduct towards aircraft. Overall, findings of recklessness may arise from the defendant's intentional actions when those actions clearly present immediate risks or visible consequences.

In federal cases concerning the pointing of lasers at aircraft, specifically under 18 U.S.C. 39A and U.S.S.G. 2A5.2, courts have determined that the dangers associated with laser beams are not readily apparent to individuals. In *United States v. Gardenhire*, the court noted that laser beams differ from ordinary light beams, making the risks less obvious. Similarly, in *United States v. Rodriguez*, it was held that merely intentionally aiming a laser at an aircraft does not imply that the defendant understood the risks or acted recklessly.

In the present case, the Court sustains Baca's objections regarding the sentencing enhancements. Baca challenged the base offense level of 18 applied under U.S.S.G. 2A5.2(a)(2), as there was no evidence indicating that he recklessly endangered aircraft safety. The Court agreed, concluding that the appropriate base offense level is 9, as recklessness was not established. Baca pled guilty to 18 U.S.C. 39A, which criminalizes knowingly aiming a laser at aircraft. He asserted that there was insufficient evidence to prove he recklessly endangered the aircraft's safety.

U.S.S.G. 2A5.2(a)(2) sets a base level of 18 for offenses involving reckless endangerment of aircraft or mass transportation facilities, whereas a lack of recklessness corresponds to a level of 9. Baca’s argument referenced U.S.S.G. 2A1.4 comment note 1, which defines recklessness as being aware of the risks associated with one’s conduct. Although Baca admitted to knowingly pointing the laser, he contended that he lacked awareness of the potential dangers, such as blinding the pilot, which would constitute the necessary mens rea for a higher conviction.

Baca argues that insufficient evidence exists to prove he knew the laser would reach the airplane, asserting that without this evidence, the finding of recklessness necessary for a base offense level of 18 under U.S.S.G. 2A5.2(a)(2) cannot be supported. He proposes that the correct base level should be 9 under U.S.S.G. 2A5.2(a)(4). Assistant U.S. Attorney Kraehe agrees with Baca's objection regarding the base offense level of 18. The U.S. Probation Office (USPO) counters by highlighting Baca's actions—pointing a laser at a police helicopter, which temporarily blinded the pilot and posed a recklessness risk to aircraft safety. The USPO emphasizes that the enhancement does not necessitate actual harm but rather the potential for harm, leading to the application of U.S.S.G. 2A5.2(a)(2). The court will adopt the definition of recklessness from U.S.S.G. 2A4.1 commentary, as U.S.S.G. 2A5.2 lacks its own definition. The Tenth Circuit’s interpretation aligns this definition with the necessity for evidence that a defendant was aware of the risks involved in their conduct. Recent case law indicates that the dangers associated with lasers directed at aircraft are not commonly understood, and merely intending to hit an aircraft with a laser does not imply awareness of the associated risks, as established in cases like United States v. Rodriguez and United States v. Gardenhire.

In United States v. Gardenhire, the defendant was sentenced under U.S.S.G. 2A5.2(a)(2) for intentionally directing a laser at a helicopter, striking it multiple times. The district court inferred that the defendant was aware of hitting the aircraft, although he claimed he did not see the strikes. The Ninth Circuit determined that knowledge of the laser hitting the aircraft did not equate to awareness of the potential consequences, such as the risk of blinding or distracting the pilot. The court emphasized the distinction between knowing a laser can be harmful when pointed at a person's eyes and understanding its effects at a distance, particularly regarding its ability to expand and refract off cockpit glass, creating a more intense hazard.

The court noted that the government failed to provide evidence regarding the general public's understanding of these risks. Testimony from an officer pilot highlighted that the beam's size could increase significantly with distance, contrary to ordinary light behavior. The Ninth Circuit contrasted this case with United States v. Gonzalez, where the threat of a bomb was clearly understood as dangerous. It found that the risks associated with lasers aimed at aircraft were less apparent, necessitating evidence of the defendant's subjective awareness of the laser's dangers to establish recklessness.

The Ninth Circuit concluded that without evidence demonstrating Gardenhire's awareness of the laser's properties and risks, the higher offense level of 18 was inapplicable. The court referenced United States v. Rodriguez, where similar arguments about recklessness based on the defendant's intentional targeting of a helicopter were also rejected, underscoring the need for evidence of awareness regarding laser hazards.

Congress established 39A to address situations where an individual's actions create unsafe flying conditions for pilots, even if it's unclear whether that individual understood the associated dangers. The Eighth Circuit ruled that a district court can infer a defendant’s knowledge of risks to aircraft from their awareness of laser dangers to people on the ground. In a relevant case, the Eighth Circuit upheld a reckless endangerment enhancement for a defendant who aimed a laser at a police helicopter, confirming that the enhancement applies only when the defendant is aware of the risks and grossly deviates from standard care. In Baca's case, while he pointed a laser at a helicopter twice and fled, there is no evidence indicating he recognized the risks involved, including the potential for blinding the pilot. The Pre-Sentence Report (PSR) suggests his fleeing may relate to heroin found in his vehicle rather than awareness of the laser's dangers. Consequently, the PSR's base offense level of 18 is incorrect due to insufficient evidence regarding Baca's awareness of the risks. The court determined that the appropriate base level should be 9, and the enhancement under U.S.S.G. 2A5.2(b)(1) does not apply, as it requires a higher base offense level. Therefore, Baca's offense level was recalculated, eliminating the proposed 6-level enhancement based on the PSR's misapplication of the guidelines.

Baca contests a 6-level enhancement to his sentencing, asserting that there is no evidence he "otherwise used" the laser pointer in a manner not already considered in the base offense level, claiming that this application would result in impermissible double-counting. In response, the U.S. Probation Office (USPO) argues that Baca pointed the laser at an aircraft twice and fled from law enforcement, suggesting awareness of wrongdoing. The USPO maintains that the enhancement is appropriate because the laser qualifies as a dangerous weapon under the specific offense characteristic, which allows for an enhancement when such a weapon is used. They reference a revision to the guidelines under the USA PATRIOT Act, which aimed to address concerns over inadequate sentencing in cases involving dangerous weapons. 

The USPO asserts that Baca's actions meet the definition of "otherwise used" as it exceeds mere possession or display of a weapon. Furthermore, the guidelines permit multiple adjustments for the same conduct. However, the court ultimately determines that, given Baca’s correct base offense level under U.S.S.G. 2A5.2(a)(4), the enhancement under 2A5.2(b)(1)(B)(ii) does not apply. Consequently, the court sustains Baca's objection to the enhancement, concluding that the guidelines, while advisory, do not support the enhancement in this particular case. The defendant’s objections to the Presentence Report are therefore sustained.

The district court's imposed sentence was based on a correctly calculated Guidelines range and a consideration of the 18 U.S.C. § 3553(a) factors, acknowledging that the Guidelines are advisory. The court must begin sentencing by accurately determining the applicable Guidelines range and must give serious consideration to any departures from it. While district courts possess the discretion to impose sentences outside the Guidelines range post-Booker, they must follow a three-step process: 1) calculate the appropriate Guidelines range, 2) consider any Guidelines-contemplated departures, and 3) vary from the Guidelines based on the § 3553(a) factors. This sequence ensures compliance with the Guidelines and the statutory requirements of § 3553(e). The Supreme Court in Booker clarified that while district courts are not bound by the Guidelines, they must at least consult and consider them during sentencing. In Kimbrough, the Court allowed for variations based on policy considerations, but appellate courts expect district courts to first determine the true Guidelines range. Deviating from the prescribed sequence could lead to procedural unreasonableness, as a sentence is deemed procedurally reasonable if there are no significant errors, such as failing to calculate the Guidelines range correctly or not adequately considering the § 3553(a) factors. The Tenth Circuit has indicated that the standard of proof for certain sentencing issues is settled in this jurisdiction.

The Tenth Circuit has indicated that due process may necessitate a clear and convincing evidence standard for sentence enhancements that result in an "extraordinary or dramatic" increase. However, it has not yet established a definitive requirement for such a higher standard in cases that enhance a defendant's sentence. Generally, the preponderance-of-the-evidence standard is upheld for sentencing facts that increase sentences in ordinary cases, as seen in multiple precedents including *United States v. Olsen* and *United States v. Valdez*, where arguments for a higher standard were rejected. The Tenth Circuit allows reliance on unpublished opinions for their persuasive value, though they are not binding precedent. *United States v. Hendrickson* is cited as having persuasive value concerning material issues relevant to the case at hand. Additionally, the excerpt discusses the legal consequences of "lasing," or aiming a laser at aircraft, which became punishable by up to five years in prison under a federal law enacted in 2012. The public generally lacks awareness of the risks associated with pointing laser devices at aircraft, emphasizing the need for education on the potential dangers involved.

Jason Stouder was convicted of the federal offense of pointing a laser at an aircraft and explained to the FBI that he aimed the laser to test its range and impact, unaware that it would illuminate and blind the cockpit crew. Another defendant, Michael Brandon Smith, admitted to using a laser pointer out of boredom to see if it could reach a helicopter overhead. There is a significant lack of public awareness regarding the dangers of pointing lasers at aircraft, prompting the FBI to launch educational campaigns about "lasing." The Ninth Circuit case, United States v. Gardenhire, established that mere knowledge of a laser's potential to blind a person on the ground does not imply an understanding of the risks when directed at an aircraft.