Judge Silverman captures my sentiments precisely in the opening paragraphs of this morning's opinion:
"There ought to be a law against shining a laser pointer at
an aircraft. In fact, there is, and it’s punishable by up to five
years in prison, as appellant Sergio Rodriguez discovered for
himself. Rodriguez, his girlfriend, and their kids were fooling
around with a laser pointer one summer evening in the
courtyard of their apartment complex – trying to see just how
far it could go – and they shined it at overflying helicopters.
Rodriguez was convicted of Aiming a Laser Pointer at an
Aircraft, in violation of 18 U.S.C. § 39A, and was sentenced
to the maximum sentence: five years in prison. Rodriguez
does not challenge that conviction.
He also was convicted of another crime stemming from
the same conduct – Attempting to Interfere with the Safe
Operation of an Aircraft, in violation of 18 U.S.C. § 32(a)(5)
and (8). That crime requires proof of a willful attempt to
interfere with the operator of an aircraft, with either the intent
to endanger others or reckless disregard for human life.
Rodriguez was charged with and found guilty of the reckless variety, and for that offense, was sentenced to fourteen years
in prison.
The evidence clearly shows that Rodriguez was rightfully
convicted of aiming the laser pointer at a helicopter (§ 39A).
However, there is insufficient evidence that he willfully
attempted to interfere with the safe flight of the helicopter
(§ 32(a)(5)). Rather, the evidence showed that he was
attempting to see how far his laser would go at night – a
stupid thing to do, yes, but there is no evidence that he was
trying to interfere with the pilot. Section 39A is designed for
knuckleheads like him. On the other hand, 18 U.S.C.
§ 32(a)(5) is designed for both the Osama bin Ladens of the
world – people trying to bring down a plane, intending to
cause harm – and those who are aware that their actions are
dangerous and could harm others, but just don’t care. The
failure to recognize this distinction is to fail to appreciate that
Congress saw fit to create two different crimes, one more
serious than the other, for two different types of offenders.
About a year after Rodriguez’s conviction became final
in district court, we decided United States v. Gardenhire,
784 F.3d 1277 (9th Cir. 2015). On very similar facts – a case
in which another knucklehead aimed a laser pointer at a
passing airplane just for the fun of it – we held, for the
purposes of the applicable sentencing guidelines, that there
was no evidence “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.” Id.
at 1280.
We face a similar situation here. There’s no problem with
Rodriguez’s conviction for Aiming a Laser Pointer at an Aircraft, 18 U.S.C. § 39A. But his conviction under
18 U.S.C. § 32(a)(5), (a)(8), for Attempting to Interfere with
the Safe Operation of an Aircraft, required both proof of a
willful attempt to interfere with an aircraft, and proof of a
reckless disregard for human life. That conviction is not
supported by the evidence and must be reversed. Because the
district court did not have the benefit of Gardenhire and
because it premised the sentence for the § 39A conviction, in
part, on the fact that Rodriguez had also been convicted of
violating § 32(a)(5), (a)(8), we also remand for resentencing
on the § 39A conviction."
I think "knucklehead" is an exactly right appellation for offenders of this sort. Wouldn't have thought of it myself, but glad that Judge Silverman did. As well as repeatedly uses it.
For my part, I'll mention only that I think it's similarly knuckleheaded -- though admittedly not as much -- to sentence a guy to fourteen years in prison for being an idiot. Or, to be honest, even to sentence someone like Mr. Rodriguez (as Judge O'Neill did) to the maximum five years in prison for the § 39A offense. Or even to authorize (as Congress and the President did) such a sentence.
It's massive overkill. As well as ruins lives for no reason.
Knuckleheads like Mr. Rodriguez aren't going to be more prospectively deterred by a five-year sentence than they will be by a one-year sentence. They don't even know it's a crime. Or (most likely) dangerous. And if they did, they'd almost certainly either (1) not do it if they thought there was any chance of spending a full year of their life in prison as a result, or (2) do it anyway, regardless of the possible sentence, because they're simply morons.
Length of sentences sometimes matters. What you do during a kidnapping may depend on the severity of the resulting sentence. Drug offenses might be deterred by the length of a particular sentence. There are surely situations in which you successfully deter someone by threatening a higher sentence.
Laser pointer crimes aren't one of them.
We'd be much better off -- e.g, the world would be safer -- if we took the $100,000 or so that we'll directly spend on Mr. Rodriguez's five-year incarceration and spend it on advertisements telling the public that's it's dangerous (and a crime) to point lasers at aircraft. As a neat side benefit, that'd also salvage a significant portion of Mr. Rodriguez's life (i.e., five years of freedom), and benefit his family, friends, and everyone who will be required to support Mr. Rodriguez and his family both during his incarceration as well as thereafter.
People shouldn't shoot laser pointers at planes or (as here) helicopters. People shouldn't think that laser pointers purchased for $7 on amazon.com -- which is where the present one came from -- are merely toys and are completely harmless. Though I know full well that many do.
But imposing long sentences on such knuckleheads doesn't make any sense either.
And that's a mistake that emanates from people who should know better.
