This seems right. Which is not easy. Since it's a pickle of a problem.
The question is what the most analogous guideline is to a crime that's pretty unusual and that doesn't have its own guideline. The crime: Serving as an airman without an airman's certificate.
I'll be honest that when I started reading the opinion, I had no idea what that crime even was. Turns out it's just flying a plane without a license. Which is what Michael McEnry indeed did. He flew a jalopy of a plane to a regional airport Bishop, California even though his student pilot's license had long ago expired. That's a crime.
The question is: How serious of a crime? How much should he presumptively be sentenced? And that's something the Sentencing Commission didn't expressly answer. Which is not surprising, as this is not an offense that happens every day. Thankfully.
So the district court's task was to pick the "most" analogous guideline offense or, if one wasn't available, to sentence McEnry to the guideline's catch-all residual provisions. The Probation Office contended that the analogous offense was interfering with the navigation or operation of a mass transportation vehicle when that interference recklessly endangered the safety of an airport or the aircraft. And there are indeed certain similarities between that offense and this one. They involve airplanes. What McEnry did could have injured an aircraft or an airport (e.g., he could have crashed). So the district court used this provision. Which set McEnry's base offense level at 18.
The problem, of course, is that while there are some similarities, that guidelines offense involves the interference with (and danger to) a mass transportation airplane; i.e., a commercial airliner. McEnry was flying a single-engine Cessna with only himself on it. Sure, there's a danger there. But it's less danger than interfering with a commercial aircraft. Which, in my view, is why the base offense level for the latter is so high. It seems overly harsh to use that offense for McEnry's crime since that's not what he did; there's a big difference in severity between screwing around with your own Cessna and screwing up a commercial jet.
The Ninth Circuit ultimately agrees, and remands for resentencing. Judge Tashima's opinion seems correct to me in that regard. And I'll add only one additional observation (beyond the preceding) to what he says.
Because the district court set the base offense level at 18, McEnry gets almost two years in prison (21 months) even after a three-level reduction for acceptance of responsibility and even though McEnry doesn't have a criminal record (History Level I). Two years in federal prison seems pretty heavy for a first-time offender flying without a license. Should you get spanked? Sure. You created a danger. So do people who drive without a license. Or text while driving. Or drink and drive. And they don't get two years in prison. They often don't get two years in prison even if they crash.
Which you might think is technically irrelevant to the Ninth Circuit's task of choosing an analogous guideline offense (if any). But I think it might well be. The statutory maximum of the offense for which McEnry was convicted is three years. Under the district court's view, the base level is 18. Which means almost everyone convicted of this offense gets at or near the statutory maximum. Even people like McEnry who plead guilty, have no criminal history, accept responsibility, etc.
That seems further evidence to me that the allegedly analogous offense isn't really analogous. If a particular guidelines choice means that a first-time offender with no criminal record whatsoever gets the same (or nearly the same) sentence as a four-time loser with a rap sheet as long as my arm who expresses absolutely no remorse and seems inclined to commit the same offense again, that's a pretty good reason to think that the guidelines choice you made is wrong. And that what you've done is to pick an overly harsh "analogous" offense that's in fact more heavy than the actual offense for which the defendant was convicted.
