United States v. Sergio Rodriguez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10122
Plaintiff-Appellee,
D.C. No.
v. 1:13-cr-00109-
LJO-SKO-1
SERGIO PATRICK RODRIGUEZ, AKA
Javier Rodrigues,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted
June 8, 2015—San Francisco, California

Filed June 24, 2015

Before: Barry G. Silverman, Ronald M. Gould,
and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Silverman
2 UNITED STATES V. RODRIGUEZ

SUMMARY*

Criminal Law

The panel reversed a conviction for attempting to interfere
with the safe operation of an aircraft, in violation of
18 U.S.C. § 32(a)(5) and (8), and remanded for resentencing
on a conviction for aiming a laser pointer at an aircraft, in
violation of 18 U.S.C. § 39A.

The panel held that there is insufficient evidence to
support the conviction under § 32(a)(5) and (8), which
required proof of both a willful attempt to interfere with an
aircraft and a reckless disregard for human life, where the
evidence showed that the defendant was attempting to see
how far his laser would go at night and aimed it at a
helicopter, but there is no evidence that he was trying to
interfere with the pilot.

The panel remanded for resentencing on the § 39A
conviction because the district court did not have the benefit
of this court’s decision in United States v. Gardenhire, 784
F.3d 1277 (9th Cir. 2015), and premised the sentence for the
§ 39A conviction, in part, on the fact that the defendant had
also been convicted of violating § 32(a)(5), (a)(8).

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. RODRIGUEZ 3

COUNSEL

Carolyn D. Phillips (argued), Fresno, California, for
Defendant-Appellant.

Benjamin B. Wagner, United States Attorney, Camil A.
Skipper, Appellate Chief, Karen A. Escobar and Michael G.
Tierney (argued), Assistant United States Attorneys, Fresno,
California, for Plaintiff-Appellee.

OPINION

SILVERMAN, Circuit Judge:

There ought to be a law against shining a laser pointer at
an aircraft. In fact, there is, and it’s punishable by up to five
years in prison, as appellant Sergio Rodriguez discovered for
himself. Rodriguez, his girlfriend, and their kids were fooling
around with a laser pointer one summer evening in the
courtyard of their apartment complex – trying to see just how
far it could go – and they shined it at overflying helicopters.
Rodriguez was convicted of Aiming a Laser Pointer at an
Aircraft, in violation of 18 U.S.C. § 39A, and was sentenced
to the maximum sentence: five years in prison. Rodriguez
does not challenge that conviction.

He also was convicted of another crime stemming from
the same conduct – Attempting to Interfere with the Safe
Operation of an Aircraft, in violation of 18 U.S.C. § 32(a)(5)
and (8). That crime requires proof of a willful attempt to
interfere with the operator of an aircraft, with either the intent
to endanger others or reckless disregard for human life.
Rodriguez was charged with and found guilty of the reckless
4 UNITED STATES V. RODRIGUEZ

variety, and for that offense, was sentenced to fourteen years
in prison.

The evidence clearly shows that Rodriguez was rightfully
convicted of aiming the laser pointer at a helicopter (§ 39A).
However, there is insufficient evidence that he willfully
attempted to interfere with the safe flight of the helicopter
(§ 32(a)(5)). Rather, the evidence showed that he was
attempting to see how far his laser would go at night – a
stupid thing to do, yes, but there is no evidence that he was
trying to interfere with the pilot. Section 39A is designed for
knuckleheads like him. On the other hand, 18 U.S.C.
§ 32(a)(5) is designed for both the Osama bin Ladens of the
world – people trying to bring down a plane, intending to
cause harm – and those who are aware that their actions are
dangerous and could harm others, but just don’t care. The
failure to recognize this distinction is to fail to appreciate that
Congress saw fit to create two different crimes, one more
serious than the other, for two different types of offenders.

About a year after Rodriguez’s conviction became final
in district court, we decided United States v. Gardenhire,
784 F.3d 1277 (9th Cir. 2015). On very similar facts – a case
in which another knucklehead aimed a laser pointer at a
passing airplane just for the fun of it – we held, for the
purposes of the applicable sentencing guidelines, that there
was no evidence “that Gardenhire acted recklessly when he
aimed his laser beam at the aircraft. The record is devoid of
evidence, let alone clear and convincing evidence, that
Gardenhire was aware of the risk created by his conduct.” Id.
at 1280.

We face a similar situation here. There’s no problem with
Rodriguez’s conviction for Aiming a Laser Pointer at an
 UNITED STATES V. RODRIGUEZ 5

Aircraft, 18 U.S.C. § 39A. But his conviction under
18 U.S.C. § 32(a)(5), (a)(8), for Attempting to Interfere with
the Safe Operation of an Aircraft, required both proof of a
willful attempt to interfere with an aircraft, and proof of a
reckless disregard for human life. That conviction is not
supported by the evidence and must be reversed. Because the
district court did not have the benefit of Gardenhire and
because it premised the sentence for the § 39A conviction, in
part, on the fact that Rodriguez had also been convicted of
violating § 32(a)(5), (a)(8), we also remand for resentencing
on the § 39A conviction.

I. BACKGROUND

On August 25, 2012, at around 9:00 p.m., Air George – a
medical transport helicopter for the Valley Children’s
Hospital in Fresno, California – had just set out to pick up a
patient in Porterville. The helicopter was about 1,100 feet up,
flying at a speed of around 130 miles per hour. Five minutes
into the flight, the pilot noticed a “bright green flash inside
the cabin” that caused “everything in the cabin [to] light up.”
A few seconds later, he saw the flash again, this time for a
slightly longer period of about two seconds. The flash caused
a glare inside the cabin that made it “difficult to see outside.”
The pilot realized it was a laser. He located the spot from
which it was being shined at him in what appeared to be a zig
zag motion, reported the laser to air traffic control, and
continued on to Porterville.

Fresno Police Department pilot Kenneth Schneider and
Tactical Flight Officer George Valdez were on duty that night
in the department’s helicopter, Air-1, and responded to air
traffic control’s call. The pair began orbiting the area in
which Air George’s pilot saw the laser, flying approximately
6 UNITED STATES V. RODRIGUEZ

60 miles per hour at an altitude of 500 feet. During one of the
orbits, a green laser hit the cockpit, creating a “big flare” and
“light[ing] up the entire cockpit.” Schneider and Valdez
continued orbiting in order to locate the laser. During that
time, the cockpit was struck approximately five or six more
times for around three to ten seconds each by a laser moving
in a circular motion.

Valdez described the intensity of the flashes as stronger
than a camera flash, “brighter than the high beams of a car
light by far,” and more like staring at the sun. Schneider
analogized it to putting a “high-intensity flashlight up to your
face and turning it on.” Although Valdez experienced
disorientation and an “after-image” during and directly after
the laser strike, he did not experience any lasting after-image
or other physical injury as a result of the strikes. Neither did
Schneider. Nevertheless, Valdez testified that the laser
interfered with his duties because part of his job is to help the
pilot locate and avoid hazards – such as radio towers, other
aircraft, and birds – and he was unable to carry out this duty
while the laser was hitting the cockpit. Schneider echoed
those concerns, stating that being lased impedes a pilot’s
ability to see his instruments inside the cabin and any hazards
outside. He stated that the laser prevented him from scanning
his instrument panels and looking out the left side of the
aircraft to make sure he kept Valdez on position to spot the
laser.

Once Schneider and Valdez pinpointed the laser’s
location, they directed ground units of the Clovis Police
Department to that spot. When Officers Christopher Peters
and Steve Cleaver arrived at the location to which Schneider
and Valdez had directed them, they saw Rodriguez and his
girlfriend Jennifer Coleman standing with several children
 UNITED STATES V. RODRIGUEZ 7

and adults outside their apartment. Rodriguez was holding a
small cylindrical object in his hand. When Rodriguez saw the
officers, he ran towards his apartment. Peters caught him,
found the object in his pocket, took it out, and discovered it
was a laser. The laser had the following label: “Avoid
Exposure Laser / Light is Emitted from this Aperture /
Danger / Laser Radiation / Avoid Direct Eye Exposure / Max
Output Power < 5 milliwatts / . . . This product complies with
21 C.F.R. / Made in China.” Cleaver arrested Rodriguez.

At that point, Coleman told the officers they should
release Rodriguez because “she was the one who had the laser
and she was the one who was pointing it into the sky.”
Cleaver separated Coleman from Rodriguez and she repeated
that “she was the one who was pointing [the laser] into the
sky . . . and that it wasn’t her fault that the helicopter flew in
front of the laser.” Cleaver then arrested Coleman. At that
point, Rodriguez “told [Cleaver] that [he] needed to release
Ms. Coleman because he [Rodriguez] was the one that was
shining the laser at the helicopter.”

Cleaver put Rodriguez and Coleman in the back of his
patrol vehicle. He then heard Rodriguez tell Coleman “not to
say anything else and that if she just told the Court that she
was just shining it into the sky, that they would only give her
a ticket.” Both Rodriguez and Coleman admitted to Cleaver
that they “s[aw] the laser reflecting off the helicopter.”

Following Rodriguez’s and Coleman’s arrest, the FBI
took over the case. A few weeks later, Coleman called
Special Agent Chet Johnston – who was in charge of the
investigation – to inquire about the return of property the
police had taken the night of her arrest. She and Rodriguez
had each received a letter from the Federal Aviation
8 UNITED STATES V. RODRIGUEZ

Authority stating that the agency had determined the couple
had not broken any rules and that the matter was closed. She
believed the FBI investigation was closed as well. Johnston
told her the FAA was a separate entity and had no bearing on
the FBI’s criminal investigation.

During the ensuing conversation, Coleman told Johnston
that on the night in question, she had pointed the laser at the
sky multiple times to try to figure out how far the beam
would reach. While she pointed it at a tree, it may have
struck a helicopter a few times. She said she had been aware
there was a police helicopter in the area that night. She also
stated that she had allowed her children to play with the laser,
instructing them not to point it into anyone’s apartment and
to only point it into the sky. She apologized to Johnston and
said it was “a stupid thing to do.” The next day, Johnston met
Coleman and Rodriguez at their home. During their
conversation, Rodriguez told Johnston that on the night in
question, “he pointed the laser at a helicopter. He was aware
he struck it approximately four times. He said that he could
see and also hear the helicopter as it flew behind a tree, which
he was aiming for.”

Ultimately, Rodriguez and Coleman were charged with
conspiracy to interfere with the safe operation of an aircraft
with reckless disregard for human life, 18 U.S.C. § 32(a)(5),
(a)(8), two counts of attempting to interfere with the safe
operation of an aircraft with reckless disregard for human
life, 18 U.S.C. § 32(a)(5), (a)(8), and two counts of aiming a
laser pointer at an aircraft, 18 U.S.C. § 39A. At trial,
government expert Joshua Hadler, Chief Laser Safety Officer
at the National Institute of Standards and Technology,
testified that federal regulations prohibit the sale of lasers
stronger than five milliwatts. Both he and defense expert
 UNITED STATES V. RODRIGUEZ 9

Samuel Goldwasser testified that they tested the laser
Rodriguez and Coleman had used and found that it had
approximately 65 milliwatts of power. Hadler testified that
a laser with that much power could cause after-image, flash
blindness, glare, and distraction, and could cause permanent
injury to the eye up to around 180 feet. He testified that in
order to illuminate the cockpit of a helicopter, a laser beam
would have to intersect the cockpit window. He also
estimated, based on the laser’s power and the altitude of the
helicopters, that the laser beam would have had a diameter of
three feet when it hit a helicopter at Air-1’s elevation on the
night of August 25, 2012, and about eleven feet when it hit
Air George.

Both Hadler and Goldwasser testified that it would be
impossible for even an experienced laser professional to tell
the laser was so powerful merely by observing it because
“[t]he human eye does not respond very well to measurement
of optical power.” Hadler testified that about 90 percent of
green lasers purchased in the United States are not in
compliance with federal regulations because they emit a
stronger beam than is allowed. He also testified that the
general public lacks awareness of that fact. Government
expert Leon McLin, Senior Research Optometrist and Vision
Scientist at the Air Force Research Laboratory, testified it
would take someone with a steady hand to be able to use a
laser to track an aircraft 500 feet up.

Rodriguez did not testify at trial, but Coleman did. She
testified that she purchased the laser on Amazon.com for
around $7.00 as a toy for her children. She said that as a
child, she had played with lasers she bought from ice cream
trucks. She said that on the night of August 25, 2012, the
couple’s two young daughters were playing with the laser,
10 UNITED STATES V. RODRIGUEZ

shining it on the grass, the parking lot, and into other people’s
apartments. This stopped when two neighbors came out and
asked them not to shine the laser into their homes. Coleman
put the girls to bed. When she came out of the girls’ bedroom
about five or six minutes later, she saw a helicopter spotlight
outside her apartment, and then saw Officer Cleaver arrest
Rodriguez.

Coleman claimed that she did not know the laser beam
could reach a helicopter a mile or even a quarter mile away
and did not know that pointing the laser at a helicopter could
cause unsafe conditions for pilots because it could be
dangerous to their eyes. She said she did not know it was
against the law for someone to aim a laser at a helicopter.
She said she had not read the entire warning label, but
acknowledged that she saw it and that she knew the laser was
very bright, in part because neighbors had complained about
it. She acknowledged she told her children not to point it at
anyone’s eyes because she knew it could be dangerous. She
stated, however, that she did not know the laser was “going-
to-kill-you-dangerous, because they sell [lasers] to kids on the
ice cream[] [truck, so] how dangerous can [they be]?”

At the end of the government’s case and following the
close of the defense case, Coleman and Rodriguez moved for
judgments of acquittal under Federal Rule of Criminal
Procedure 29. They argued that there was insufficient
evidence they willfully attempted to interfere with the pilots’
operation of the helicopters with reckless disregard for human
safety. The court denied the motions.

The jury found both Rodriguez and Coleman guilty of
violating § 39A for aiming a laser pointer at Air-1, and
Rodriguez, alone, guilty of violating § 32(a)(5), (a)(8), for
 UNITED STATES V. RODRIGUEZ 11

willfully attempting to interfere with the safe operations of
Air-1 in reckless disregard for human safety. It acquitted
them on all other counts.

On March 10, 2014, the district court sentenced
Rodriguez. Because Rodriguez’s two convictions arose from
the same conduct, the court grouped them together. See
U.S.S.G. §§ 3D1.1–3D1.3. After finding the intentional
endangerment enhancement of U.S.S.G. § 2A5.2(a)(1)
applied, the court sentenced Rodriguez to 168 months on his
§ 32(a)(5), (a)(8) conviction. The court also imposed a
concurrent term of 60 months, the statutory maximum, for the
§ 39A conviction. Thus, the total sentence was fourteen years
in prison.

Rodriguez appeals his conviction for § 32(a)(5), (a)(8),
arguing that the government failed to prove he acted with the
requisite mens rea and that we must remand for resentencing
on his § 39A conviction because that sentence resulted from
his § 32(a)(5), (a)(8) conviction and sentence.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over this appeal under 28 U.S.C.
§ 1291. We review the district court’s ruling on a defendant’s
motion for judgment of acquittal de novo. United States v.
Mendoza, 244 F.3d 1037, 1042 (9th Cir. 2001). Evidence
offered to support a conviction is sufficient if, when “viewed
in a light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Odom,
329 F.3d 1032, 1034 (9th Cir. 2003); see also Jackson v.
Virginia, 443 U.S. 307, 320 (1979). “[E]vidence is
insufficient to support a verdict where mere speculation,
12 UNITED STATES V. RODRIGUEZ

rather than reasonable inference, supports the government’s
case.” United States v. Nevils, 598 F.3d 1158, 1167 (9th Cir.
2010) (en banc). “[A] ‘reasonable’ inference is one that is
supported by a chain of logic.” Juan H. v. Allen, 408 F.3d
1262, 1277 (9th Cir. 2005).

III. DISCUSSION

A. The Essential Elements of § 32(a)(5), (a)(8)

Before assessing whether the government presented
sufficient evidence to allow a rational factfinder to find
Rodriguez guilty of violating § 32(a)(5), (a)(8), we must first
identify the essential elements of that statute. Section
32(a)(5) prohibits “willfully . . . interfer[ing] with or
disabl[ing], with intent to endanger the safety of any person
or with a reckless disregard for the safety of human life,
anyone engaged in the authorized operation of [an] aircraft or
any air navigation facility aiding in the navigation of an[] [ ]
aircraft.” 18 U.S.C. § 32(a)(5). The aircraft must be “in the
special aircraft jurisdiction of the United States or [be] any
civil aircraft used, operated, or employed in interstate,
overseas, or foreign air commerce.” 18 U.S.C. § 32(a)(1).
Section 32(a)(8) prohibits attempting to violate § 32(a)(5).
18 U.S.C. § 32(a)(8) (penalizing those who “willfully . . .
attempt[] or conspire[] to do anything prohibited under
paragraphs (1) through (7) of this subsection”).

As the district court properly recognized in its jury
instructions, § 32(a)(5), (a)(8) requires proof that 1) the
defendant willfully attempted to interfere with or disable a
person engaged in the authorized operation of an aircraft or
any air navigation facility aiding in the navigation of an
aircraft; 2) the defendant intended to endanger the safety of
 UNITED STATES V. RODRIGUEZ 13

a person or acted with a reckless disregard for the safety of
human life; 3) the aircraft was in the special jurisdiction of
the United States or was a civil aircraft used, operated, or
employed in interstate commerce; and 4) the defendant took
a substantial step toward committing the crime. See United
States v. Meek, 366 F.3d 705, 720 (9th Cir. 2004) (“[A]n
attempt conviction requires evidence that a defendant
intended to violate the statute and took a substantial step
toward completing the violation.” (internal citation and
quotation marks omitted)).

As the district court also properly recognized in its
instructions, an act is done willfully if a defendant
intentionally acted with knowledge that his or her conduct
was unlawful. See, e.g., Bryan v. United States, 524 U.S.
184, 191–92 (1998) (citing Ratzlaf v. United States, 510 U.S.
135, 137 (1994)).

A reckless disregard for the safety of human life has both
a subjective and an objective component. First, the defendant
must be aware of the risk his conduct created (here, that the
laser had the ability to blind or distract a pilot enough to
cause a crash). United States v. Trinidad-Aquino, 259 F.3d
1140, 1145–46 (9th Cir. 2001); United States v. Albers,
226 F.3d 989, 994–95 (9th Cir. 2000), cert. denied, 531 U.S.
1114 (2001). As the Supreme Court recognized in Farmer v.
Brennan, “[t]he criminal law[] [ ] generally permits a finding
of recklessness only when a person disregards a risk of harm
of which he is aware.” 511 U.S. 825, 836–37 (1994).

Second, the risk must be “‘of such a nature and degree
that, considering the nature and purpose of the actor’s
conduct and the circumstances known to him, its disregard
involves a gross deviation from the standard of conduct that
14 UNITED STATES V. RODRIGUEZ

a law-abiding person would observe in the actor’s situation.’”
Albers, 226 F.3d at 995 (quoting Model Penal Code
§ 2.02(2)(c) (1985)). To put it succinctly, a defendant acts
recklessly when he “deliberately disregard[s] a substantial
and unjustifiable risk . . . of which [he is] aware.” Id.

Having identified the essential elements of a § 32(a)(5),
(a)(8) conviction, we next consider whether the government
adduced sufficient evidence to allow a rational trier of fact to
conclude that Rodriguez acted with the requisite mens rea.

B. The Government’s Evidence

Rodriguez does not dispute that the government adduced
sufficient evidence that he intentionally pointed the laser at
Air-1. Indeed, he admitted as much to both Officer Cleaver
and Special Agent Johnston and he does not appeal his § 39A
conviction. He argues, however, that the government did not
adduce any evidence that would allow a rational factfinder to
conclude either that he was willfully attempting to interfere
with the pilot’s operation of Air-1 or that he acted in reckless
disregard for the safety of human life. The government
contends that the evidence that Rodriguez intentionally and
repeatedly targeted the cockpit of Air-1, with a light he knew
to be dangerously bright is sufficient to allow a rational
factfinder to find Rodriguez guilty of violating § 32(a)(5),
(a)(8). The government argues that this evidence allows for
the rational inference that Rodriguez knew the risk posed to
the aircraft by the laser and therefore the finding that
Rodriguez both acted with reckless disregard for the safety of
human life and must have intended to interfere with the
pilot’s operation of the aircraft. The main problem with the
Government’s argument is Gardenhire, which was decided
 UNITED STATES V. RODRIGUEZ 15

on April 30, 2015, a little over a year after Rodriguez was
convicted.

Gardenhire involved a defendant’s appeal of his sentence
following his conviction for violating § 39A by intentionally
lasing a Cessna jet and a police helicopter. Section 39A
prohibits “knowingly aim[ing] the beam of a laser pointer at
an aircraft in the special aircraft jurisdiction of the United
States, or at the flight path of such an aircraft[.]” 18 U.S.C.
§ 39A(a). The district court found Gardenhire’s intentional
conduct in lasing the aircraft showed he had acted recklessly.
It applied the reckless endangerment enhancement of
U.S.S.G. § 2A5.2(a)(2) to double Gardenhire’s base offense
level. Gardenhire, 784 F.3d at 1279–80. We reversed the
sentence, holding that “the bare admission that Gardenhire
intentionally aimed the laser [at an aircraft], knowing that it
was dangerous to shine the laser in someone’s eyes, does not
support the inference . . . that [Gardenhire] was aware of the
dangers to the aircraft from doing so,” and therefore could not
prove he had the subjective knowledge required for a finding
of recklessness. Id. at 1283.

The facts the government adduced in Gardenhire are
almost identical to the facts the government presented at
Rodriguez’s trial. Gardenhire, like Rodriguez, admitted to
the FBI that he intentionally tried to hit the aircraft with his
laser beam. Id. at 1280. The government claimed
Gardenhire, like Rodriguez, knew his laser was powerful
enough to reach the aircraft. Id. Moreover, Gardenhire, like
Rodriguez, knew the laser could be dangerous if shined
directly into someone’s eyes: his friend had told him “‘not to
shine the laser at anyone’s eyes because it would blind
people.’” Id. at 1281. We held that these facts were not clear
and convincing evidence Gardenhire had acted recklessly,
16 UNITED STATES V. RODRIGUEZ

concluding that “[t]he record is devoid of evidence . . . that
Gardenhire was aware of the risk created by his conduct.” Id.
at 1280.

First, we reasoned, Gardenhire’s admission that he
intentionally tried to hit the aircraft “does nothing to show
that Gardenhire was aware that if he hit the jet, as intended,
he could blind or distract the pilot.” Id. Next, Gardenhire’s
knowledge that the beam had hit the aircraft “at most [ ]
evidences knowledge that he could succeed in striking the jet,
not awareness of the consequences of the beam strike – the
risk that the pilot could be blinded or distracted or the aircraft
otherwise endangered.” Id. at 1281 (emphasis added).
Finally, “knowing that a laser beam can cause blindness when
pointed directly at a person’s eyes is very different than
knowing that a laser beam can be distracting to pilots who are
both enclosed in a cockpit and at least 2,640 feet away.” Id.
This is because the fact

[t]hat one knows that the laser is dangerous
when pointed directly in a person’s eyes does
not mean that one knows about the beam’s
ability to expand and refract, rendering it
particularly hazardous for pilots in an aircraft
miles away, or that the danger is heightened at
nighttime because the pilot’s eyes have
adjusted to the dark.

Id. at 1282.

We then examined other ways the government could have
proven Gardenhire was aware of the risk created by his
conduct. We looked to United States v. Naghani, 361 F.3d
1255, 1263 (9th Cir. 2004), and United States v. Gonzalez,
 UNITED STATES V. RODRIGUEZ 17

492 F.3d 1031, 1032 (9th Cir. 2007), in which we held the
defendants’ intentional conduct alone, which caused chaos
onboard their respective commercial flights, was sufficient to
support a finding of reckless endangerment. We
distinguished those cases, however, because Naghani’s and
Gonzalez’s conduct obviously caused a risk of danger that
was immediately apparent to them. It was therefore
appropriate to find, based on the intentionality of their
conduct and the immediate and visible effects of their
behavior, that they were aware of the risk their conduct
created. See Gardenhire, 784 F.3d at 1282 (“Naghani acted
in very different circumstances, where the average person
would be immediately aware of the consequences of his
actions.”); id. at 1283 (“Gonzalez’s actions caused total chaos
onboard, supporting the logical inference that he was
subjectively aware of the risks of his threatening and violent
conduct.” (internal quotation marks omitted)).

The Gardenhire court held that, in contrast to Naghani
and Gonzalez, it would be inappropriate to conclude merely
from Gardenhire’s intentional conduct that he was aware of
the risk his lasing of the aircraft created because lasers do not
operate like normal beams of light. The risk created from the
lasing was therefore not immediately apparent to Gardenhire.
See id. at 1283. As we explained,

“the farther away [a laser beam] gets from the
point of origin, the beam spreads out,” thus
increasing its hazardousness, a notion that is
counterintuitive, especially when one
considers that an ordinary light beam would
grow fainter. Additionally, the laser pointer is
particularly hazardous to an aircraft when the
18 UNITED STATES V. RODRIGUEZ

beam is refracted off the cockpit glass, which
intensifies the light even more[.]

Id. at 1281 (quoting pilot’s testimony).

Because laser beams do not operate like regular beams of
light, we held, it would be inappropriate to conclude that
Gardenhire must have been aware of the risk created by
shining a laser at an aircraft absent a showing that similarly
situated defendants, or even average people, understand how
laser beams operate. Id. at 1283. We noted that, as in the
present case, the government had not “submit[ted] any
evidence of what even an average person would know about
the effects of aiming a laser beam at an aircraft.” Id. at 1281.
For all of these reasons, we concluded, the government failed
to show Gardenhire acted recklessly. Rather, in applying the
reckless endangerment enhancement, “the district court [ ]
made the unsupported leap from deliberate and intentional
action to consciousness of risk.” Id.

Although Gardenhire is a sentencing case, its reasoning
controls the outcome of Rodriguez’s appeal because the facts
are almost identical and a finding of recklessness for purposes
of the § 2A5.2(a)(2) enhancement, like a finding of
recklessness for purposes of § 32(a)(5), requires proof that the
defendant is “aware of the risk created by his conduct.”1 Id.
at 1283. Moreover, as noted, Gardenhire did not simply find
the evidence insufficient to prove the enhancement applied by
clear and convincing evidence. Rather, it held that the record

1
We recognize that Gardenhire may be in tension with the First
Circuit’s decision in United States v. Sasso, 695 F.3d 25, 30 (1st Cir.
2012), but we are, of course, obliged to follow our own precedents.
 UNITED STATES V. RODRIGUEZ 19

was altogether “devoid of evidence.” Id. at 1280 (emphasis
added).

As in Gardenhire, the fact that Rodriguez intentionally
shined the laser at the helicopter, although enough for a
§ 39A charge, is not, in and of itself, sufficient to allow a
rational factfinder to conclude that Rodriguez acted with
reckless disregard for the safety of human life. Also as in
Gardenhire, the government adduced no evidence in
Rodriguez’s trial showing that the risks posed by lasers are
matters of common knowledge. Indeed, as the government’s
own expert, Joshua Hadler, testified, it is impossible for even
an experienced laser professional to tell a laser’s power
merely by observing it. Hadler also testified that the general
public is unaware that 90 percent of green lasers imported
into the United States are stronger than allowed by federal
regulations. For this reason, Rodriguez’s conduct cannot
accurately be compared to that of someone who shines a
bright spotlight through the windshield of passing cars: the
effect of bright lights on automobile drivers at night is a
matter of common knowledge.

As the government points out, Rodriguez’s running from
the police when they arrived at his apartment complex, hiding
the laser in his pocket, and telling Coleman to say she was
only flashing the laser at the sky evidences a consciousness
of guilt. That’s true: he was guilty of the crime of aiming a
laser at an aircraft and had every right to have a guilty
conscience. But his evasive conduct sheds no light, so to
speak, on whether he was trying to willfully interfere with the
safe operation of the aircraft with a reckless disregard for the
safety of human life, as opposed to less serious illegal
conduct.
20 UNITED STATES V. RODRIGUEZ

C. Conclusion

Congress created § 39A in 2011 precisely because it
recognized that many people who point lasers at aircraft do
not do so with the mens rea required for a § 32(a)(5)
conviction. A House Report on the Securing Aircraft
Cockpits Against Lasers Act of 2011, the act that created
§ 39A, stated that

[s]ome perpetrators [of lasing aircraft] have
been charged under 18 U.S.C. § 32, relating to
the destruction of aircraft. However, this
provision requires the government to prove
willful interference and intent to endanger the
pilots. While this burden may be easily
established when a person attempts to
detonate a bomb onboard an aircraft or
attempts to overtake a member of the flight
crew, it is difficult to establish this same type
of intent for a laser incident, even if the effect
is actually to endanger the pilots. This bill
recognizes the obvious and inherent danger of
aiming a laser at an aircraft under any
circumstance, as long as the offender
knowingly aims the laser at the aircraft. The
penalty under section 32, 20 years, coupled
with having to prove specific intent to
interfere with, disable, or endanger the pilots,
seems to be a factor in multiple declinations
of prosecution under the current statute.

H.R. Rep. No. 112-11, at 2 (2011) (emphasis added).
 UNITED STATES V. RODRIGUEZ 21

As is clear from this report, Congress created § 39A to
cover situations in which an individual’s conduct causes
unsafe flying conditions for pilots but prosecutors cannot
prove whether that person was intentionally trying to take the
aircraft down or whether they even understood the dangers
lasers pose to aircraft. Rodriguez’s case presents a perfect
example of such a situation. His conduct was dangerous and
cannot be condoned. He deserves a § 39A conviction and a
sentence that reflects the seriousness of his crime. However,
his conviction for violating § 32(a)(5), (a)(8) must be vacated.
We therefore remand for entry of a judgment of acquittal and
we vacate his fourteen-year sentence. In light of Gardenhire,
and because Rodriguez’s statutory-maximum sentence for his
§ 39A conviction was a result of the court’s calculation of his
base offense level for § 32(a)(5), (a)(8), a conviction which
we have now reversed, we also remand for resentencing on
his § 39A conviction.

REVERSED AND REMANDED.2

2
Rodriguez waived his argument that we should remand his case to a
different district court judge by raising it for the first time in his reply
brief.