                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1247
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

          Jordan Clarence Rogers, also known as Jordon Clarence Rogers

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                           Submitted: November 17, 2017
                              Filed: February 6, 2018
                                  ____________

Before COLLOTON and GRUENDER, Circuit Judges, and READE, District
Judge.1
                         ____________

GRUENDER, Circuit Judge.

      Jordan Rogers repeatedly pointed a laser at a police helicopter, temporarily
blinding the pilot, and pleaded guilty to one count of aiming a laser at an aircraft in

      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa, sitting by designation.
violation of 18 U.S.C. § 39A. On appeal, Rogers challenges the district court’s2
application of a nine-level sentencing enhancement for recklessly endangering the
safety of an aircraft, pursuant to United States Sentencing Guidelines (“U.S.S.G.”)
§ 2A5.2(a)(2). Because the district court did not clearly err in determining that
Rogers recklessly endangered the safety of an aircraft, we affirm.

       At sentencing, the district court heard testimony from FBI Special Agent Karen
Jarman. According to Jarman, Rogers initially denied knowing that his laser hit the
helicopter. She interviewed him a second time after speaking to the pilot. Rogers
then admitted he intentionally pointed his laser at the helicopter. Rogers claimed he
did not know that anyone could be hurt, and Jarman explained to him the dangers of
pointing a laser at an aircraft. But according to Jarman, Rogers also admitted he
knew his conduct was illegal. Moreover, the district court received an exhibit
containing police reports with statements from Rogers’s neighbors. One neighbor
recalled Rogers shining the laser at him as he drove his car but aiming it away as the
car turned and its headlights began to illuminate Rogers.

      The district court concluded that Rogers “showed that he was aware of the
reckless endangerment that his actions caused by shining the laser at the aircraft.” As
the court explained,

      He knew it was illegal. He did it on purpose. He followed the aircraft.
      He had exhibited his knowledge of the dangerousness by pointing the
      laser at a car earlier and then interrupting that activity when his presence
      was discovered or the car was turning toward him. He lied to the police.
      He did try to conceal himself immediately after the conduct of pointing
      the laser at the helicopter . . . .




      2
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

                                      -2-
The district court overruled Rogers’s objection and applied the enhancement. Thus,
Rogers’s advisory guidelines range was 41 to 51 months, and the district court
imposed a sentence of 36 months’ imprisonment.

       When reviewing the district court’s determination of the advisory sentencing
guidelines range, we review the district court’s factual findings for clear error and its
construction and application of the guidelines de novo. United States v. Hagen, 641
F.3d 268, 270 (8th Cir. 2011). In particular, we review a district court’s finding of
recklessness for clear error. United States v. Valdez, 146 F.3d 547, 554 (8th Cir.
1998). “[A]s long as the determination is plausible in light of the record as a whole,
clear error does not exist.” United States v. Farrington, 499 F.3d 854, 859 (8th Cir.
2007).

       Though § 2A5.2 does not define “reckless,” the parties agree that we should
use the definition from the application notes for § 2A1.4 cmt. (n.1) (involuntary
manslaughter). This provision 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).

       Although it is a close question, we conclude that the district court did not
clearly err in finding that Rogers recklessly endangered the safety of an aircraft. As
Rogers’s attorney admitted at oral argument, his earlier behavior in turning away the
laser from the automobile established that he was aware of the danger of shining a
laser at someone operating a vehicle. In addition, Special Agent Jarman testified that
Rogers admitted he knew shining the laser at an aircraft was wrong. In sum, Rogers
knew his conduct was wrong and knew it posed a risk to the driver of an automobile.
Thus, it was reasonable for the district court to infer he was aware of the danger of



                                          -3-
pointing his laser at an aircraft. As a result, the district court’s finding was “plausible
in light of the record as a whole.” See Farrington, 499 F.3d at 859.

       Rogers warns that applying the enhancement in this case means that the
enhancement must apply to every violation of 18 U.S.C. § 39A. We disagree. The
record must show, as it did here, that the defendant was aware of the risk to the
aircraft and grossly deviated from the standard of care in disregarding it. For this
reason, this case is distinguishable from the Ninth Circuit’s opinion in United States
v. Gardenhire, 784 F.3d 1277 (9th Cir. 2015). In Gardenhire, the record was “devoid
of evidence” that the defendant was aware of the risk created by his conduct. Id. at
1280. Here, by contrast, evidence supported the district court’s conclusion that
Rogers was reckless. Insofar as Gardenhire’s reasoning might forbid a district court
to rely on a defendant’s knowledge that a laser beam can blind or endanger a person
on the ground to infer knowledge of the risk to a piloted aircraft, we disagree.

       For the foregoing reasons, we affirm Rogers’s sentence.

                        ______________________________




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