                                                                            FILED
                             NOT FOR PUBLICATION
                                                                            OCT 25 2016
                      UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 15-10495

              Plaintiff- Appellee,              D.C. No. 1:13-cr-00109-LJO-SKO-
                                                1
 v.
                                                MEMORANDUM*
SERGIO PATRICK RODRIGUEZ,

              Defendant-Appellant.


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

                            Submitted October 17, 2016.**
                               Pasadena, California

Before: GRABER and MURGUIA, Circuit Judges, and BENNETT,*** Senior

District Judge.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See FED. R. APP. P. 34(a)(2).
       ***
             The Honorable Mark W. Bennett, Senior United States District Judge
for the Northern District of Iowa, sitting by designation.
       Defendant Sergio Rodriguez was convicted by a jury of willfully attempting

to interfere with the safe flight of an aircraft by aiming a laser pointer at it, in

violation of 18 U.S.C. § 32(a)(5) and (a)(8), and aiming a laser pointer at an

aircraft, in violation of 18 U.S.C. § 39A. He was sentenced to 168 months on the

§ 32(a)(5) and (a)(8) offense and 60 months on the § 39A offense. The facts of

this case are set out in considerable detail in our decision on Rodriguez’s first

appeal. United States v. Rodriguez, 790 F.3d 951 (9th Cir. 2015). In that decision,

we vacated Rodriguez’s conviction and sentence on the § 32(a)(5) and (a)(8)

offense. Although Rodriguez had not appealed his conviction on the § 39A

offense, we also remanded for resentencing on that offense. We did so in light of

an intervening decision in United States v. Gardenhire, 784 F.3d 1277 (9th Cir.

2015), and because Rodriguez’s statutory-maximum sentence for his § 39A

conviction was a result of the district court’s calculation of his base offense level

for the § 32(a)(5) and (a)(8) conviction, which we had reversed. Rodriguez, 790

F.3d at 961.

       On remand, the court again sentenced Rodriguez to 60 months on his § 39A

conviction, even though his advisory guidelines sentencing range was only 21 to

27 months. Rodriguez now appeals that sentence as substantively unreasonable

and seeks a remand to a different court for resentencing. We affirm.


                                             2
      1.     Rodriguez contends that his above-Guideline sentence—indeed, one

that more than doubled his advisory guidelines sentence—was unwarranted and

that the court overstated the circumstances of the crime and his criminal history,

while giving little or no weight to other relevant § 3553(a) factors. He argues that

the court used conduct that was merely an element of the offense to enhance his

sentence. He also argues that his criminal record was already accounted for in the

calculation of his criminal history as category VI. He also contends that the court

did not adequately consider the effect of alcohol on his ability to control his

behavior. Finally, he contends that his statutory-maximum sentence creates an

unwarranted disparity with his co-defendant and others convicted of a § 39A

offense. We disagree with each of these contentions.

      a.     As we explained in our decision in United States v. Ressam, 679 F.3d

1069, 1071 (9th Cir. 2012) (en banc), “[w]e review a challenge [to the substantive

reasonableness of a sentence] under what the Supreme Court has described as ‘the

familiar abuse-of-discretion standard of review.’” (Quoting Gall v. United States,

552 U.S. 38, 46 (2007).) Thus, while we afford the district judge’s sentencing

decision “significant deference,” and “‘we may not reverse just because we think a

different sentence is appropriate,’” see id. at 1086 (quoting United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc)), we do not simply “rubber stamp” the


                                           3
district judge’s decision, id. at 1087. Rather, “‘we may reverse if, upon reviewing

the record, we have a definite and firm conviction that the district court committed

a clear error of judgment in the conclusion it reached upon weighing the relevant

factors.’” Id. (quoting United States v. Amezcua–Vasquez, 567 F.3d 1050, 1055

(9th Cir. 2009)).

      It is true that Rodriguez’s 60-month sentence varied to a substantial degree

from his advisory guidelines sentencing range, in the sense that it was more than

double the high end of his advisory guidelines sentencing range. As we

recognized in Ressam, however:

                    The Supreme Court has explicitly rejected “the use
             of a rigid mathematical formula that uses the percentage
             of a departure as the standard for determining the
             strength of the justifications required for a specific
             sentence.” Gall, 552 U.S. at 47, 128 S.Ct. 586. It has
             made clear, nonetheless, that we are to consider the
             “extent of the deviation and ensure that the justification is
             sufficiently compelling to support the degree of the
             variance.” Id. at 50, 128 S.Ct. 586. It is in that light that
             we must assess the district court’s consideration of the
             § 3553(a) factors.

Ressam, 679 F.3d at 1090. Here, the district court offered several sufficiently

compelling justifications for the degree of the variance. Id.

      The court considered the first § 3553(a) factor, “the nature and

circumstances of the offense,” just as we did in Ressam. Id. While Rodriguez’s


                                           4
offense was not as potentially “horrific” as Ressam’s, the district judge reasonably

found that Rodriguez’s offense involved “a dangerous, dangerous circumstance,”

see Sen’g Tr. (10/8/15) at 20:24, and was of “an horrendously aggravated nature

and [an] aggravated circumstance in this case,” regardless of what Rodriguez knew

about the danger. See id. at 22:16-24; see generally id. at 20:24-26:15. Moreover,

aiming the laser pointer at the helicopter just once would have been sufficient for a

§ 39A offense, see Rodriguez, 790 F.3d at 960 (“[T]he fact that Rodriguez

intentionally shined the laser at the helicopter [was] enough for a § 39A

charge . . . .”), but Rodriguez increased the dangerousness of the offense by

striking the helicopter six or seven times. Sen’g Tr. (10/8/15) at 21:8-12. He had

also “involved his minor children or allowed . . . them to continue to be involved,”

id. at 21:14-16, which the court reasonably considered an aggravating

circumstance.

      The court also reasonably concluded that Rodriguez’s criminal history was

aggravating, beyond what his criminal history score indicated. See Ressam, 679

F.3d at 1091 (“Section 3553(a)(1) identifies ‘the history and characteristics of the

defendant’ as one of the factors to consider in imposing

a sentence.”). As the district court found:




                                          5
             [T]his defendant has a serious criminal history record,
             dating as far back as his mid-teen years, including felony
             behavior and obstructing and resisting officers; his claim
             to be a Bulldog street gang member; having prior felony
             commitment, plus six misdemeanors, including corporal
             injury to a cohabitant; obstructing an officer; spitting on
             an officer; referring to officers as, quote, an officer as a
             “white-washed Mexican”’; [and] hitting his cohabitant
             five times in the face.

Sen’g Tr. (10/8/15) at 27:2-10. The court also noted that Rodriguez had committed

the offense while on probation, showing that he did not take the terms and

conditions of probation seriously. Id. at 27:11-13. In light of this record, the court

reasonably concluded that Rodriguez was “criminally out of control,” did not

“respect the law,” required “deterrence,” and that the public needed protection

from him. Id. at 27:12-19; see also 18 U.S.C. § 3553(a)(2)(A) (“seriousness of the

offense” and “respect for the law”), (B) (“deterrence”), and (C) (“protect the

public”).

      The sentence of 60 months was the maximum authorized by the statute

defining the offense. See 18 U.S.C. § 39A(a); see also id. § 3553(a)(3) (“the kinds

of sentences available”). Under the circumstances of this case, we cannot say that

the court abused its discretion by concluding that Rodriguez should be sentenced to

the available statutory maximum.




                                           6
      In short, we conclude that Rodriguez’s sentence satisfies the “touchstone” of

reasonableness, because “the record as a whole reflects rational and meaningful

consideration of the factors enumerated in 18 U.S.C. § 3553(a).” Ressam, 679

F.3d at 1089 (quotation marks omitted).

      b.     Although Rodriguez contends that his 60-month sentence creates an

unwarranted sentencing disparity with his co-defendant and others who have

committed a § 39A offense, we disagree. See 18 U.S.C. § 3553(a)(6). Rodriguez

has not identified any other defendant who committed a § 39A offense involving as

many “strikes” of the aircraft with the laser pointer, any other § 39A defendant or

co-defendant who had as significant a criminal history, or any other § 39A

defendant or co-defendant who had displayed such disrespect for the law in his

criminal history. The court reasonably concluded that Rodriguez’s co-defendant,

who was his co-habitant, was dominated by Rodriguez, so that her circumstances

were distinguishable.

      Because we are not left with “a definite and firm conviction that the district

court committed a clear error of judgment in the conclusion it reached upon

weighing the relevant factors,” Ressam, 679 F.3d at 1087, we affirm Rodriguez’s

sentence.




                                          7
      2.     Rodriguez also requests that, if a resentencing is ordered, we direct

reassignment to a different judge, in order to preserve the appearance of justice.

Because we do not remand for resentencing, this request is denied as moot.

      AFFIRMED.




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