                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                     No. 13-50125
            Plaintiff-Appellee,
                                                 D.C. No.
                  v.                      2:12-cr-00345-SVW-1

 ADAM GARDENHIRE,
        Defendant-Appellant.                      OPINION


        Appeal from the United States District Court
            for the Central District of California
        Stephen V. Wilson, District Judge, Presiding

                 Argued and Submitted
         November 18, 2014—Pasadena, California

                       Filed April 30, 2015

    Before: Kim McLane Wardlaw and Richard A. Paez,
   Circuit Judges and Michael A. Ponsor,* Senior District
                          Judge.

                   Opinion by Judge Wardlaw




 *
   The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court for Massachusetts, sitting by designation.
2               UNITED STATES V. GARDENHIRE

                           SUMMARY**


                           Criminal Law

    The panel vacated a sentence imposed for knowingly
aiming the beam of a laser pointer at an aircraft in violation
of 18 U.S.C. § 39A, and remanded for resentencing, in a case
in which the district court applied an enhancement for
reckless endangerment under U.S.S.G. § 2A5.2(a)(2)(A).

    The panel held that the district court erred in concluding
that the defendant acted recklessly when he aimed his laser
beam at the aircraft, where the record is devoid of evidence,
let alone clear and convincing evidence, that the defendant
was aware of the risk created by his conduct.

    The panel could not say that the error was harmless, and
instructed that the matter be assigned to a different district
judge on remand. The panel observed that the district court’s
statements show its commitment to the idea that, regardless
of the evidence presented, the defendant’s conduct was
reckless, and that it would likely impose the same sentence on
remand, regardless of this court’s rulings.

    In light of the extremely steep sentencing regime dictated
by the recklessness enhancement for wide-ranging conduct
covered by § 2A5.2, the panel wrote that it is particularly
important that the government is held to its burden of proof
and that the enhancements are supported by clear and
convincing evidence.

  **
     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. GARDENHIRE                      3

                         COUNSEL

Matthew Brady Larsen (argued), Deputy Federal Public
Defender; Sean K. Kennedy, Federal Public Defender, Los
Angeles, California, for Defendant-Appellant.

Kerry C. O’Neill (argued) and Melissa Mills, Assistant
United States Attorneys; Robert E. Dugdale, Chief Assistant
United States Attorney; André Birotte Jr., United States
Attorney, Los Angeles, California, for Plaintiff-Appellee.


                          OPINION

WARDLAW, Circuit Judge:

    We must decide whether the district court correctly found
that Adam Gardenhire recklessly endangered an aircraft
within the meaning of U.S.S.G. § 2A5.2(a)(2)(A) when he
pointed a laser beam at a Cessna Citation jet, in violation of
18 U.S.C. § 39A.

                               I.

    On March 29, 2012, Adam Gardenhire, age eighteen,
aimed a green laser pointer at an incoming seven-passenger
Cessna Citation jet as it approached the Burbank Airport near
his home. The captain and pilot were onboard the private jet
when the laser struck the pilot’s eye. Although momentarily
blinded and distracted by the laser, the pilot was able to safely
land the aircraft. Gardenhire also aimed the laser pointer at
a police helicopter that was dispatched to determine the
laser’s source. Having located the source of the laser, the
police arrived at Gardenhire’s home. Following Gardenhire’s
4             UNITED STATES V. GARDENHIRE

admission that “[i]t was me with the laser,” the officers
located the laser pointer in his grandfather’s bedroom and
arrested Gardenhire.

    Gardenhire, a high school student, explained to the FBI
that he had borrowed the laser from a friend. Gardenhire and
his friend had been using the laser to play around in their
neighborhood, pointing it at parked cars, stop signs, and other
objects. Gardenhire’s friend warned him against shining the
laser directly at anyone’s eyes because it could blind
someone. Though Gardenhire intentionally tried to hit the
aircraft, he never saw the laser actually reach it. He later
learned that he “struck two planes with the laser.” At the
time, Gardenhire did not think about the dangers of pointing
the laser at an aircraft and was simply bored.

    The government charged Gardenhire with two counts of
knowingly aiming the beam of a laser pointer at an aircraft in
violation of 18 U.S.C. § 39A—one count each for the Cessna
Citation jet and the police helicopter. The parties entered into
a plea agreement, in which Gardenhire agreed to plead guilty
to aiming the laser pointer at the Cessna Citation jet, and the
government agreed to dismiss the police helicopter count.
The government also agreed to recommend a two-level
reduction for acceptance of responsibility at sentencing
pursuant to U.S.S.G. § 3E1.1 and, if available, an additional
one-level reduction. On October 29, 2012, Gardenhire
entered a plea of guilty to aiming a laser at the Cessna
Citation jet. Despite the government’s agreement with
Gardenhire that he was an appropriate candidate for the
Conviction and Sentence Alternatives program (“CASA”), a
post-guilty plea diversionary program, the district court
denied a CASA referral.
                UNITED STATES V. GARDENHIRE                         5

    On December 21, 2012, the U.S. Probation Office issued
its Pre-Sentence Investigation Report (“PSR”) and a
recommendation letter. Presumably because the statutory
offense to which Gardenhire pleaded guilty had been enacted
just six weeks before the date of his offense conduct, no
sentencing Guideline expressly corresponded to its violation.
See FAA Modernization and Reform Act of 2012, Pub. L.
No. 112-95, § 311, 126 Stat. 11, 65-66 (Feb. 14, 2012).
Therefore, pursuant to U.S.S.G. § 2X5.1, the Probation Office
used the most analogous Guideline, which it concluded was
U.S.S.G. § 2A5.2, “Interference with Flight Crew Member or
Flight Attendant; Interference with Dispatch, Navigation,
Operation, or Maintenance of Mass Transportation Vehicle.”1
The Probation Office recommended a recklessness
enhancement under U.S.S.G. § 2A5.2(a)(2)(A), which
doubled Gardenhire’s base offense level, increasing it to
eighteen.

    The only issue at sentencing was whether Gardenhire
“recklessly endangered” the safety of an aircraft within the
meaning of U.S.S.G. § 2A5.2(a)(2). The Probation Office
concluded that he did because he “knowingly and
intentionally aim[ed] a laser pointer at both the airplane and
helicopter.” The Probation Office then recommended a three-
level reduction of the offense level for acceptance of
responsibility, found one criminal history point for a prior
juvenile adjudication, and recommended a Guidelines
sentencing range of eighteen to twenty-four months.


  1
   The Guidelines have since been amended to expressly list U.S.S.G.
§ 2A5.2 as the applicable Guideline section for 18 U.S.C. § 39A.
Appendix A, United States Sentencing Commission Guidelines Manual
(2013) (incorporating Guideline amendments effective November 1, 2013,
and earlier).
6                UNITED STATES V. GARDENHIRE

    The district court concluded that the Probation Office
properly calculated the Guidelines range, finding by clear and
convincing evidence that Gardenhire was aware of the
dangers of pointing the laser at the Cessna Citation jet. It
imposed an above-Guidelines sentence of thirty months’
imprisonment plus three years of supervised release, after
taking into account the factors provided in 18 U.S.C.
§ 3553(a). The district court placed particular emphasis on
the “need for deterrence” and expressed the hope that the
sentence would be publicized so that “young people” would
know this sort of “prank” cannot be tolerated. Gardenhire
timely appeals.2

                                   II.

    We have jurisdiction to review Gardenhire’s sentence
under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We review
the district court’s findings of fact underlying its sentencing
decision for clear error. United States v. Naghani, 361 F.3d
1255, 1263 (9th Cir. 2004). Clear error requires a “definite
and firm conviction that a mistake” occurred. United States
v. Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (en banc).
We will reverse only when a district court’s factual findings
are “illogical, implausible, or without support in the record.”
United States v. Fitch, 659 F.3d 788, 797 (9th Cir. 2011).




 2
   A two-judge panel of our court granted Gardenhire’s motion for release
pending appeal on July 9, 2013, finding, inter alia, that his appeal raises
a substantial question of law or fact that is fairly debatable.
                 UNITED STATES V. GARDENHIRE                            7

                                  III.

                                   A.

    The district court correctly noted that the government
bore the burden of showing by clear and convincing evidence
that Gardenhire recklessly endangered the aircraft.3 United
States v. Gonzalez, 492 F.3d 1031, 1039 (9th Cir. 2007). The
district court also correctly set forth the definition of
“reckless” provided in Application Note 1 to U.S.S.G.
§ 2A1.4. Naghani, 361 F.3d at 1263 (noting that Application
Note 1’s definition of “reckless” for involuntary
manslaughter applies in this context). Section 2A1.4 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; see also United States v. Rodriguez-Cruz, 255 F.3d
1054, 1059 (9th Cir. 2001) (defining reckless). However, the
district court erred in concluding 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.



  3
    Generally, the party seeking to adjust an offense level must establish
that the adjustment is merited by a preponderance of the evidence, but the
burden increases to clear and convincing evidence if the adjustment will
“have a disproportionate impact on the ultimate sentence imposed.”
United States v. Staten, 466 F.3d 708, 720 (9th Cir. 2006); see Gonzalez,
492 F.3d 1031 at 1039. In Gonzalez, we concluded that the heightened
standard was appropriate for the nine-level recklessness enhancement
under U.S.S.G. § 2A5.2(a)(2)(A). 492 F.3d 1031 at 1039–40.
8              UNITED STATES V. GARDENHIRE

    The district court relied on Gardenhire’s statement to the
FBI that he intentionally tried to hit the aircraft with his laser
beam. But this fact does nothing to show that Gardenhire was
aware that if he hit the jet, as intended, he could blind or
distract the pilot. In finding recklessness, the district court
also relied on the “fact” that Gardenhire knew his laser was
powerful enough to reach the aircraft. The district court
found, incorrectly, that it was “uncontroverted” that
Gardenhire stated he “hit the helicopter ‘two to three times’
and he hit the two different planes two times.” From that
“fact” the court concluded that Gardenhire knew “as soon as
he actually observed his laser strike the aircraft” that the
beam could travel such a distance. But whether Gardenhire
saw his laser beam strike an airplane is controverted—in the
very next paragraph of the same FBI report, by Gardenhire’s
statement that “he never saw the laser hit the planes but he
pointed the laser at the airplanes.” And even if Gardenhire
knew that the beam struck the aircraft, at most that 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.

    Our conclusion is in accord with the First Circuit, which
has made clear that deliberate and intentional acts that happen
to result in endangering the safety of an aircraft are
insufficient to prove willfulness. In United States v. Sasso,
the defendant was charged under 18 U.S.C. § 32(a)(5), which
makes it a crime to “willfully . . . interfere[ ] with or disable[
], 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 any such
aircraft.” 695 F.3d 25, 30 (1st Cir. 2012) (alterations in
              UNITED STATES V. GARDENHIRE                     9

original). In Sasso, the jury was instructed, “If a person’s
actions interfere with an aircraft operator, you may infer that
the person acted willfully if his actions were deliberate and
intentional and had the natural and probable effect of
interfering with the aircraft operator.” Id. The defendant
argued that this instruction “erroneously diluted the mens rea
requirement” of the statute, and the First Circuit agreed. Id.
The First Circuit held that this “instructional error may have
influenced the verdict,” and therefore vacated the conviction
and remanded for a new trial. Id. at 31.

     As in Sasso, the district court here made the unsupported
leap from deliberate and intentional action to consciousness
of risk. In concluding Gardenhire was aware of the risk
caused by his actions simply because he deliberately aimed
at the aircraft, and purportedly knew the beam could reach the
aircraft, the district court significantly and erroneously
diluted the mens rea required for application of the
recklessness enhancement. See id. at 30.

    The district court’s finding that Gardenhire was aware of
the risk created by his conduct lastly rests on the fact that
Gardenhire’s high school friend who lent him the laser told
him “not to shine the laser at anyone’s eyes because it would
blind people.” But 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. Nor did the government submit any evidence of
what even an average person would know about the effects of
aiming a laser beam at an aircraft. According to one of the
lead investigators in this case, an officer pilot, the beam of a
laser pointer that is “only the size of a pencil on the ground”
can intensify to “12 inches in diameter depending on the
10            UNITED STATES V. GARDENHIRE

distance.” In other words, “the farther away it 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 beam is refracted off the
cockpit glass, which intensifies the light even more, resulting
in a “bright, dazzling beam” that lights up the entire cockpit.
That 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.

    Citing Naghani, the district court concluded that
Gardenhire “reasonably knew or should have known that his
laser strikes would distract the jet pilot and interfere with the
pilot’s operation of the aircraft, thereby endangering the
aircraft.” See 361 F.3d at 1263. But by not examining the
facts of Naghani and quoting one sentence out of context
from that decision, the district court conflated the subjective,
“defendant was aware of the risk,” and the objective,
“standard of care that a reasonable person would exercise in
such a situation,” prongs of the standard for recklessness.
The government provided no evidence, let alone clear and
convincing evidence, that Gardenhire was aware of the risks
created by aiming the beam at the aircraft. And the district
court failed to address Gardenhire’s awareness of risk,
focusing exclusively on the nature and degree of the risk that
a reasonable person would not disregard. Naghani acted in
very different circumstances, where the average person would
be immediately aware of the consequences of his actions.
              UNITED STATES V. GARDENHIRE                 11

    In Naghani, an airplane passenger lit a cigarette in the
lavatory, set off the smoke alarm, and failed to respond to a
flight attendant’s knock on the lavatory door. Id. at 1258.
Naghani refused to admit he had been smoking and refused
to reveal the location of his cigarette. Id. The situation
continued to escalate and a “verbal confrontation ensued,” in
which Naghani threatened to “kill all Americans.” Id.
Because of Naghani’s aggressive and confrontational
behavior, flight attendants forced Naghani to sit in a jump
seat near the lavatory and informed him the plane might have
to turn around and return to its originating location. Id. at
1259. In upholding the recklessness enhancement, we
emphasized that “[t]he district court properly found that
Naghani was aware of the risk created by his smoking,
obstreperous behavior and threats.” Id. at 1263. Naghani’s
conduct and the immediate consequences of his conduct
provide bountiful circumstantial evidence from which to infer
Naghani was subjectively aware of the risk created by his
conduct. Naghani had clear safety warnings not to smoke on
the airplane—the very action he performed despite the
warnings. Furthermore, Naghani’s refusal to cooperate with
flight attendants and his threatening behavior obviously and
immediately caused the flight staff to attend to him to
mitigate the danger in which he had put the aircraft by
smoking. The immediate reaction to Naghani’s behavior
made it clear to Naghani that he was dangerously interfering
with the normal operations of the aircraft, and yet his
disruptive behavior only escalated. By contrast, Gardenhire
heeded the only warning he was given—not to shine the laser
directly in anyone’s eyes—and he was not immediately
alerted to any additional risks he was creating by aiming the
beam at an aircraft.
12            UNITED STATES V. GARDENHIRE

    In United States v. Gonzalez, we also drew a clear and
logical inference that the defendant was subjectively aware of
the risk created by similarly disruptive conduct. 492 F.3d
1031. There, a passenger on a Southwest Airlines flight
complained of heart problems, refused to sit down, demanded
that the airplane land, opened overhead bins and attempted to
remove passengers’ luggage, ultimately threatening that he
had a bomb on the airplane. Id. at 1032–33. The flight
attendants heard Gonzalez say “I have [a] bomb” and “I’m
blowing the plane up.” Id. at 1033 (alteration in original). A
hysterical Gonzalez then began to kick and hit passengers
until flight attendants and other passengers eventually tackled
and held him down. Id. at 1033–34. 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. Id. at 1032. As we concluded in
Gonzalez, “It doesn’t take an aeronautical engineer to
recognize that a threat of a bomb in that environment and the
havoc that such a threat might cause is a threat to the safety
of the aircraft.” Id. at 1038.

    Unlike in Naghani and Gonzalez, here the government
introduced no evidence that supported a subjective awareness
of the consequences of aiming a laser beam at an aircraft, and
the bare admission that Gardenhire intentionally aimed the
laser, knowing that it was dangerous to shine the laser in
someone’s eyes, does not support the inference the district
court drew—that he was aware of the dangers to the aircraft
from doing so. Had the government submitted circumstantial
or direct evidence that Gardenhire was aware of the laser’s
long-distance power, expansion capabilities, and ability to
refract off the cockpit glass, the district court could have
found subjective awareness. But it did not; nor did it
demonstrate that as of six weeks after the effective date of
              UNITED STATES V. GARDENHIRE                     13

18 U.S.C. § 39A, “Aiming a laser pointer at an aircraft,” the
dangers of shining a laser at an aircraft were of general
knowledge to the average person, or of specific knowledge to
teens.

    At the first sentencing hearing on February 25, 2013, the
district court understood that the evidence in the record at that
time supported no more than intentional aiming and that the
government needed to submit evidence as to Gardenhire’s
knowledge of the danger, which the government had not
“established.”        Expressing its frustration with the
government’s failure to submit evidence that Gardenhire was
aware that aiming a laser beam at an aircraft would endanger
it, or linking his knowledge that the laser should not be
pointed at a person’s eye to a supposed intentional effort to
aim it at the pilot’s eye, the district court continued the
hearing so that the government could get him the FBI reports
that it represented contained the critical evidence. However,
the reports did not evidence that Gardenhire was subjectively
aware of the risks; rather they indicated that Gardenhire told
the FBI agents that “he didn’t think about the dangers of what
he was doing” and “was just bored.” The only other relevant
evidence submitted was the defense expert’s testimony that
there have been “literally thousands” of laser incidents over
the last decade, and none resulted in a crash. Finally
Gardenhire himself told the judge, “[I] would just like to say
that I’m sorry; I didn’t know the risks of this laser pointer. In
this trial, I learned that—it’s not going to happen again, and
I’ve learned so much.” Thus the government never met its
burden of establishing that Gardenhire was aware of the risk
created by his conduct.

   Because the government failed to show by clear and
convincing evidence that Gardenhire met the first prong of
14            UNITED STATES V. GARDENHIRE

the recklessness enhancement test, we need not address the
second prong. The district court procedurally erred by
enhancing Gardenhire’s offense level for recklessness.

                               B.

    We cannot say that the district court’s error was harmless.
The district court’s post-hoc statement that it would impose
the same sentence even if reversed by the Ninth Circuit does
not render the procedural error harmless. United States v.
Munoz-Camarena, 631 F.3d 1028, 1031 (9th Cir. 2011) (per
curiam) (holding that a “district court’s mere statement that
it would impose the same above-Guidelines sentence no
matter what the correct calculation cannot, without more,
insulate the sentence from remand”). After Gardenhire filed
his notice of appeal, Gardenhire moved the district court for
release pending appeal. It was undisputed that Gardenhire
was not a flight risk and that his purpose in bringing the
motion was not for delay, the first two prongs of the standard
for granting release. United States v. Handy, 761 F.2d 1279,
1283 (9th Cir. 1985); see also 18 U.S.C. § 3143(b). The
district court denied the motion for failure to satisfy the third
prong: whether the defendant raised a substantial question,
which, if favorably ruled upon, would result in a reduced
sentence. The district court reasoned that “even if the Ninth
Circuit rules that the sentencing guideline should not
incorporate the recklessness enhancement, the Court would
find that the revised guideline would not adequately account
for the seriousness of the offense, or the need to deter such
reckless conduct.” Further, the court indicated it “likely
would impose the same above-guidelines sentence to meet
those demands under § 3553(a).” These statements,
indicating the district court’s reasoning for denying bail, do
not render its procedural error harmless.
                 UNITED STATES V. GARDENHIRE                            15

    They do, however, suggest that the district court judge
would be unable to set aside the nine-level enhancement for
recklessness, and would simply impose the same above-
Guidelines sentence upon remand. The district court’s
statements show its commitment to the idea that, regardless
of the evidence presented, Gardenhire’s conduct was reckless
and the above-Guidelines sentence was needed to deter
others. It thus appears the district court judge “would
reasonably be expected upon remand to have substantial
difficulty in putting out of his or her mind previously
expressed views or findings determined to be erroneous.”
Ellis v. U.S. Dist. Court (In re Ellis), 356 F.3d 1198, 1211
(9th Cir. 2004) (en banc) (quoting United Nat’l Ins. Co. v.
R&D Latex Corp., 242 F.3d 1102, 1118 (9th Cir. 2001)). The
district court has informed the parties that it would likely
impose the same sentence on remand, regardless of our
ruling. See United States v. McGowan, 668 F.3d 601, 609
(9th Cir. 2012). Taking the court at its word, we vacate
Gardenhire’s sentence and ask the Clerk of the Court for the
Central District of California to assign this matter to a
different district court judge on remand.4 Id.

                                   IV.

   The significant error caused by the district court’s
misapplication of the recklessness enhancement raises
broader concerns regarding U.S.S.G. § 2A5.2. This section

 4
   Having found a procedural error in the Guidelines calculation, we need
not address Gardenhire’s allegation that his sentence was also
substantively unreasonable. United States v. Flores, 725 F.3d 1028, 1035
(9th Cir. 2013) (“If we find a material error in the Guidelines calculation,
‘we will remand for resentencing, without reaching the question of
whether the sentence as a whole is reasonable.’” (quoting United States v.
Kilby, 443 F.3d 1135, 1140 (9th Cir. 2006))).
16               UNITED STATES V. GARDENHIRE

provides the Guidelines range for eleven U.S. Code sections
and subsections.5 The conduct criminalized by these eleven
provisions is wide-ranging. See, e.g., 18 U.S.C. § 32(a)(1)
(willfully setting fire to an aircraft), 18 U.S.C. § 37
(intentionally performing an act of violence against a person
at an airport), 18 U.S.C. § 39A (aiming a laser pointer at an
aircraft), 18 U.S.C. § 1992(a)(6) (incapacitating the operator
of a mass transportation vehicle with intent to endanger
safety), 49 U.S.C. § 46503 (assaulting an airport employee),
49 U.S.C. § 46504 (assaulting a flight crew member or flight
attendant), 49 U.S.C. § 46308(2) (continuing to maintain a
misleading light after a warning). The statutory maximum
for the statute criminalizing Gardenhire’s conduct is five
years. 18 U.S.C. § 39A. Other statutes with sentencing
ranges guided by U.S.S.G. § 2A5.2 have statutory maximums
of twenty years, life imprisonment, or even death. See, e.g.,
18 U.S.C. § 37. The Guidelines range for Gardenhire’s
misguided, teenage prank, which at least he no doubt now
understands has serious consequences for others, as well as
for himself, and the Guidelines range for “[t]errorist attacks
and other violence against . . . mass transportation systems”
are determined under the very same Guidelines section. See
18 U.S.C. § 1992.

    Certain conduct with a Guidelines range dictated by
U.S.S.G. § 2A5.2 is truly abhorrent. Accordingly, it is not
surprising that the offense levels and corresponding
Guidelines ranges ratchet up very quickly under this
Guideline. Under U.S.S.G. § 2A5.2, the recklessness


   5
     Appendix A of the U.S.S.G. indicates that the following statutes
correspond to U.S.S.G. § 2A5.2: 18 U.S.C. § 32(a), (b); 18 U.S.C. § 37;
18 U.S.C. § 39A; 18 U.S.C. § 1992(a)(1), (a)(4), (a)(5), (a)(6); 49 U.S.C.
§ 46308; 49 U.S.C. § 46503; 49 U.S.C. § 46504.
                 UNITED STATES V. GARDENHIRE                          17

enhancement doubles the base offense level, and an
enhancement for intentionally endangering the safety of an
aircraft more than triples the base offense level. In light of
this extremely steep sentencing regime, it is particularly
important that the government is held to its burden of proof
and that the enhancements are supported by clear and
convincing evidence.6

    Through the erroneous application of the recklessness
enhancement, Gardenhire’s base offense level jumped from
nine to eighteen. Considering Gardenhire’s criminal history
category of I, a base offense level of nine would have resulted
in a Guidelines range of four to ten months, whereas a base
offense level of eighteen resulted in a Guidelines range of
twenty-seven to thirty-three months.7 The district court’s



 6
   Considering the wide range of conduct that results in Guidelines ranges
dictated by U.S.S.G. § 2A5.2 and the steep corresponding sentencing
regime, the U.S. Sentencing Commission may wish to consider different
sentencing Guidelines for certain crimes currently being funneled into
U.S.S.G. § 2A5.2. An offense such as Gardenhire’s seems to be different
in both kind and degree from many other offenses with Guidelines ranges
calculated under U.S.S.G. § 2A5.2.
     7
        This calculation does not take into account the reductions
recommended by the government and suggested in the PSR. Under
Gardenhire’s plea agreement, the government agreed to recommend a two-
level reduction at sentencing pursuant to U.S.S.G. § 3E1.1. This would
reduce Gardenhire’s correct offense level from nine to seven. An offense
level of seven corresponds to a Guidelines range of zero to six months,
considering Gardenhire’s criminal history category of I. Comparing this
Guidelines range to Gardenhire’s thirty-month term of imprisonment
highlights the severity of the district court’s error and the sentence
imposed. The district court imposed a prison term five times greater than
the high-end of the correctly calculated Guidelines range, taking into
account the reduction under the plea agreement. The unfairness in this
18              UNITED STATES V. GARDENHIRE

error in finding recklessness minimized, and indeed
potentially eliminated, the critical distinction between these
separate Guidelines ranges.

                                  V.

    The government did not show by clear and convincing
evidence that Gardenhire was aware of the risks created by
his conduct. In applying the recklessness enhancement, the
district court materially erred, resulting in a miscalculated
Guidelines range. We vacate Gardenhire’s sentence and
remand for resentencing.

   VACATED and REMANDED with instructions to the
Clerk to assign to a different district court judge.




sentencing regime is only highlighted by the government’s willingness to
place Gardenhire in CASA at the outset.
