           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          December 2, 2009
                                     No. 09-50066
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ARTHUR DAVID PROSKIN,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 7:08-CR-107-ALL


Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Arthur David Proskin pleaded guilty to one count of intimidating a flight
attendant in interference with her ability to perform her duties. See 49 U.S.C.
§ 46504.     The district court sentenced Proskin to, inter alia, 30 months of
imprisonment. Proskin appeals his sentence, claiming the district court erred
in finding he recklessly endangered the safety of an aircraft, and therefore erred



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 09-50066

in applying Sentencing Guideline § 2A5.2(a)(2) (providing offense level for
recklessly endangering the safety of an aircraft, airport, mass transportation
vehicle, or mass transportation facility).
      Although post-Booker, the Guidelines are advisory only, and an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion standard,
the district court must still properly calculate the guideline-sentencing range for
use in deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 51
(2007). In that respect, its application of the guidelines is reviewed de novo; its
factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005). “A factual finding is not clearly erroneous if it is plausible in
light of the record as a whole.” United States v. Trujillo, 502 F.3d 353, 356 (5th
Cir. 2007).
      Proskin contends his personality disorder prevented him from forming the
recklessness mens rea. The district court’s finding of recklessness, however, is
supported by Proskin’s psychological evaluation and is, therefore, plausible in
the light of the record as a whole.
       Proskin also maintains his behavior did not endanger the safety of the
aircraft. The aircraft captain testified that he decided to make an overweight,
unscheduled landing (which involved a greater risk to the aircraft and the
passengers) because of Proskin’s escalating abusive behavior toward the flight
attendant and his threat to another passenger’s life. The district court did not
clearly err in finding Proskin endangered the aircraft’s safety. See United States
v. Gonzalez, 492 F.3d 1031, 1037–38 (9th Cir. 2007), cert. denied, 128 S. Ct. 1093
(2008).
      AFFIRMED.




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