United States v. Gonzalez ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10543
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00498-LDG
SALVADOR GONZALEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Argued and Submitted
November 16, 2006—San Francisco, California
Filed July 3, 2007
Before: A. Wallace Tashima and M. Margaret McKeown,
Circuit Judges, and David A. Ezra,* District Judge.
Opinion by Judge McKeown;
Dissent by Judge Tashima
*The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
7949
7952 UNITED STATES v. GONZALEZ
COUNSEL
Daniel G. Bogden, United States Attorney; Robert L. Ellman,
Chief, Appellate Division; Thomas S. Dougherty, Assistant
United States Attorney, Las Vegas, Nevada, for the
defendant-appellant.
Franny A. Forsman, Federal Public Defender; Jason F. Carr,
Assistant Federal Public Defender, Las Vegas, Nevada, for
the plaintiff-appellee.
UNITED STATES v. GONZALEZ 7953
OPINION
McKEOWN, Circuit Judge:
Southwest Airlines Flight 2466, bound for Ontario, Califor-
nia, from Las Vegas, Nevada, had an uneventful takeoff.
Before long, the cabin was in total chaos. Passenger Salvador
Gonzalez became hysterical, demanded that the plane land,
made statements about a bomb and, according to a flight
attendant, said, “I’m blowing the plane up.” The crew and
passengers tried to subdue him. He eventually was handcuffed
and the plane was diverted back to Las Vegas.
Gonzalez pled guilty to interference with a flight crew
member in violation of 49 U.S.C. § 46504. He appeals the
district court’s decision to impose a nine-level sentencing
enhancement for reckless endangerment of the aircraft under
the advisory United States Sentencing Guidelines
(“Guidelines”). We are unpersuaded by Gonzalez’s argument
that the enhancement is inapplicable. His conduct was a threat
not only to crew and passengers but to the aircraft.
BACKGROUND
Shortly after take-off, Gonzalez, who was seated in the last
row of the airplane, stood up, complained of heart problems,
and requested oxygen from a flight attendant. Flight attendant
Patrick Poulin informed Gonzalez that the captain would be
notified and oxygen would be made available, but Gonzalez
refused to sit down and walked up the aisle, demanding that
the plane land.
Just as Poulin was retrieving an oxygen tank, flight atten-
dant Nancy Castillo noticed Gonzalez in the aisle and thought
he might need medical attention. As she approached, Gonza-
lez said that he was having a heart attack. Castillo tried to
calm him down, but Gonzalez continued toward the front of
7954 UNITED STATES v. GONZALEZ
the plane, claiming that he needed a forward seat and asking
that the plane, which had just taken off, land.
Gonzalez became increasingly agitated, saying: “We have
to get on the ground. We need to land. I need to get this air-
craft on the ground.” To Castillo, Gonzalez appeared “very
angry,” and “very upset.” Gonzalez then began opening over-
head bins and attempted to take out the luggage. Castillo
heard him say, “I have a bomb,” and she ran up the aisle to
inform the captain, who indicated that the plane would return
to Las Vegas.
According to Castillo:
The cabin was total chaos, everybody — the — right
at the point when he had said “I have [a] bomb,” I
saw many of our male passengers unbuckle their
seatbelts and they stood up and they — I remember
seeing the people throwing punches and everybody,
you know, they were all on top of Mr. Gonzalez. . . .
[Gonzalez] was hysterical and he was swinging and
kicking and he was just — he was hitting and kick-
ing passengers and the passengers were trying to
take him down and hold him down.
Castillo added that passengers were concerned Gonzalez
would open the emergency exit door:
Many of the female passengers were screaming and
yelling and crying. The cabin was total chaos. They
were yelling, “We’re going to die. We’re going to
crash. We’re going down.” And a lot of the women
were hysterical. They were — they were thinking we
were going to crash. Thinking they — when the pas-
sengers heard Mr. Gonzalez say, “I have a bomb,”
and at that point it was just all hell broke loose.
Castillo recalled that as Gonzalez made his way toward the
emergency exit row, women were screaming and saying,
UNITED STATES v. GONZALEZ 7955
“He’s going to open up the door.” Castillo, who was “very
afraid,” noted that the passengers were crying because they
thought that if Gonzalez opened the emergency door, the air-
craft was going down.
When Gonzalez began opening the overhead bins, another
flight attendant, Kyle Woodard, who was on board but was
not working the flight, became concerned. Woodard got up to
see what was going on, and heard Poulin assuring Gonzalez
that the plane was turning around to land in Las Vegas. Woo-
dard heard Gonzalez say “something to the effect of, do I
have to say I have a bomb to get this plane on the ground?
Gonzalez went on to say, ‘I can blow this plane up.’ ”
Poulin’s statement to the FBI was in accord with Woodard’s
version of events.
In the midst of the chaos, Woodard and Poulin tried to
restrain Gonzalez by grabbing his arms. Woodard described
the following interchange with Gonzalez:
[Gonzalez] was — he looked at Patrick [Poulin] and
looked at me, he said he — I have a [unintelligible]
you’re going to kill me or something. At that time I
told him, I said, well, then let’s calm down, we’re
going to let you go, let’s, you know, bring this down,
and he — we both released him and he said, “I want
this plane on the ground.” Patrick’s saying, “Sir,
we’re going back to Vegas.” And then finally he said
something to the effect of, you know, f--- it, I’m
blowing the plane up, I’m taking it down.
In response to a question whether Gonzalez “was going to
take the plane down,” Woodard testified, “I was afraid that he
had a device or something [and that] it was going to do harm
to myself and my crew and my passengers, yes.”
Gonzalez then opened an overhead bin and began pulling
out a bag, which set off a struggle during which Gonzalez
7956 UNITED STATES v. GONZALEZ
kicked Poulin. Several passengers assisted Poulin and Woo-
dard in an attempt to restrain Gonzalez. During the course of
this struggle he “hit several passengers with his arms and
legs” and was “kicking everybody.” Flight attendants and pas-
sengers were ultimately able to restrain Gonzalez with plastic
handcuffs.
The plane was diverted and it returned to Las Vegas with-
out further incident. FBI agents arrested Gonzalez, who told
them that “he knew what he was doing was wrong but felt he
had to do something to land the plane.” At the change of plea
hearing, Gonzalez acknowledged that, although he had used
methamphetamine the day before the incident, he was aware
of his actions and understood and knew what he was doing at
the time of the incident. The precise statement that Gonzalez
made about the bomb is in dispute. In the change of plea hear-
ing, Gonzalez denied making the specific statement “I have a
bomb,” but admitted to stating, “what do I have to do to get
this plane to land? Do I have to say I have a bomb?”
Gonzalez was indicted on one count of interference with a
flight crew member in violation of 49 U.S.C. § 46504. To vio-
late § 46504, a defendant’s conduct of “assaulting or intimi-
dating a flight crew member or flight attendant” must
“interfere[ ] with the performance of the duties of the member
or attendant or lessen[ ] the ability of the member or attendant
to perform those duties.” 49 U.S.C. § 46504. Although Gon-
zalez initially entered a plea of not guilty, he later changed his
plea to guilty.
The Presentence Investigation Report (“PSR”) recom-
mended a nine-point base offense level enhancement (from 9
to 18) under United States Sentencing Guidelines
§ 2A5.2(a)(2) on the ground that Gonzalez recklessly endan-
gered the safety of the aircraft. During the sentencing hearing,
which took place over several sessions, the court heard testi-
mony from flight attendants Nancy Castillo and Kyle Woo-
UNITED STATES v. GONZALEZ 7957
dard. Gonzalez disputed the claim that he had recklessly
endangered the safety of an aircraft.
At the final hearing, the district court reviewed the proce-
dural history of the case, summarized the parties’ respective
positions concerning the sentencing issues and reviewed the
Guidelines calculations. The district judge stated, “[t]he court
has considered all of the factors and the advisory guidelines
in my judgment are twenty-one (21) to twenty-seven (27)
months. I will impose a 27-month sentence on the defendant.
I will require him to be supervised for three (3) years, and to
pay the one hundred dollar ($100) special assessment.” The
district court did not apply the two-level enhancement for
obstruction of justice but gave Gonzalez the benefit of a two-
level downward adjustment for acceptance of responsibility.
The district court also specified that the offense level was 16,
meaning that it had applied the nine-level enhancement.
ANALYSIS
The central issue on appeal is whether the nine-level
Guideline enhancement for recklessly endangering the safety
of an aircraft is applicable to Gonzalez’s conduct. In addition,
although he did not raise the standard of proof issue below,
Gonzalez claims that reversal is warranted because the
enhancement must be proven by clear and convincing evi-
dence.
I. HISTORY OF U.S.S.G. § 2A5.2(a)(2)
Before the enactment of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Inter-
cept and Obstruct Terrorism Act of 2001 (“USA PATRIOT
Act”), Pub. L. No. 107-56, 115 Stat. 272 (2001),
§ 2A5.2(a)(2) referred to recklessly endangering the safety of
the “aircraft and passengers.” U.S.S.G. § 2A5.2(a)(2) (2001)
(emphasis added). Effective November 1, 2002, § 2A5.2(a)(2)
was amended to refer to “endangering the safety of . . . an air-
7958 UNITED STATES v. GONZALEZ
port or an aircraft; or . . . a mass transportation facility, a mass
transportation vehicle, or a ferry.” U.S.S.G. § 2A5.2(a)
(2)(2003).
The USA PATRIOT Act also led to the addition of a new
subsection, § 2A5.2(b), relating to the use of dangerous weap-
ons. According to the United States Sentencing Commission’s
stated reasons for the amendment, § 2A5.2(b) was added to
“address[ ] concerns that the current base offense level of 18
(in § 2A5.2(a)(2)) for reckless endangerment may be inade-
quate in situations involving a dangerous weapon and reckless
disregard for the safety of human life.” U.S.S.G. Supp. to
Append. C, amend. 637, at 247 (2002). Another new subsec-
tion, § 2A5.2(c), was added to “cross reference . . . the appro-
priate homicide guideline . . . for offenses in which death
results.” Id.
The overall effect of these amendments, taken together, is
two-fold. First, it is now easier to invoke the sentence
enhancements because § 2A5.2(a)(2) does not require a show-
ing of endangerment to the passengers. For example, even if
an individual threatened to blow up an empty aircraft, he
could receive an enhancement under § 2A5.2(a)(2). And, in
the case of an aircraft loaded with passengers, Congress rea-
sonably assumed, as would most people, that endangering an
aircraft would endanger the passengers. Second, to the extent
reckless endangerment involves dangerous weapons or results
in death, the overall penalties are now higher.
II. APPLICATION OF THE ADJUSTMENT UNDER U.S.S.G.
§ 2A5.2(a)(2)1
1
Gonzalez’s related argument that the sentence was unreasonable is
premised on the contention that the district court improperly invoked the
enhancement. We need not address this issue in light of our conclusion
that Gonzalez’s conduct falls within the range of conduct contemplated by
the enhancement.
UNITED STATES v. GONZALEZ 7959
[1] The adjustment under § 2A5.2(a)(2) applies “if the
offense involved recklessly endangering the safety of . . . an
aircraft.” U.S.S.G. § 2A5.2(a)(2). Gonzalez argues that the
“crucial legal fulcrum,” as he terms it, is whether he reck-
lessly endangered the actual aircraft and that while he may
have interfered with the crew and arguably even endangered
passengers, the adjustment is inapplicable because he did not
endanger an aircraft. In sum, he claims that he endangered
only the flight crew and passengers, not the aircraft.
To the extent Gonzalez’s point is that the adjustment
requires conduct beyond the underlying offense, he is correct.
Simply interfering with the flight crew is insufficient to war-
rant the nine-level enhancement. But Gonzalez’s ultimate
argument fails for two reasons: first, endangerment of the air-
craft does not require evidence of actual harm to the aircraft;
and second, Gonzalez’s irresponsible statements, threats and
conduct easily qualified as reckless endangerment to “the
safety of . . . an aircraft” within the meaning of § 2A5.2(a)(2).
Turning to the first argument, not surprisingly, Gonzalez
points to no case that requires evidence of actual harm to the
aircraft under § 2A5.2(a)(2). Common sense tells us that a
defendant can endanger something without causing actual
harm. See, e.g., Price v. United States Navy, 39 F.3d 1011,
1019 (9th Cir. 1994) (“Courts have . . . consistently held that
‘endangerment’ means a threatened or potential harm and
does not require proof of actual harm.”) (Resource Conserva-
tion and Recovery Act) (citations omitted); Ethyl Corp. v.
EPA, 541 F.2d 1, 13 (D.C. Cir. 1976) (“Case law and dictio-
nary definition agree that endanger means something less than
actual harm.”) (Clean Air Act).
Nothing suggests that this commonly-accepted meaning
should not apply here. In a closely analogous situation, the
district court explained:
Defendant urges this court . . . to find that
2A5.2(a)(2) applies only if there is actual harm to the
7960 UNITED STATES v. GONZALEZ
aircraft and passengers. Such a construction would
mean that this Base Offense Level would apply only
when an aircraft actually crashed or suffered other
damage as a result of a defendant’s action. Had this
been the intended meaning, the term ‘harming’
would have been more appropriate than endangering,
which means ‘putting someone or something in dan-
ger; exposing to peril or harm.’
United States v. Guerrero, 193 F. Supp. 2d 607, 608
(E.D.N.Y. 2002) (quoting Black’s Law Dictionary 547 (7th
ed. 1999)).
[2] Recognizing that actual harm to the aircraft is not
required for behavior to constitute endangerment, we next
consider the contours of “recklessly endangering the safety of
. . . an aircraft.” Section 2A5.2 does not define “reckless.”
However, Application Note 1 to U.S.S.G. § 2A1.4 defines the
term “reckless” in the context of involuntary manslaughter as
a situation in which the defendant “was aware of the risk cre-
ated 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 exer-
cise in such a situation.” U.S.S.G. § 2A1.4, app. n.1. We
adopted this definition in United States v. Naghani, 361 F.3d
1255, 1263 (9th Cir. 2004), a case that raised similar issues
involving reckless endangerment of an aircraft.
In Naghani, the defendant entered the aircraft lavatory and
lit a cigarette, which set off a smoke alarm. When confronted,
he argued with a flight attendant and threatened to “kill all
Americans.” Id. at 1260. Although Naghani denied making
this statement or refusing to cooperate, the jury convicted him
of interfering with the duties of a flight crew in violation of
49 U.S.C. § 46504. The district court imposed the enhance-
ment under § 2A5.2(a)(2). In upholding the enhancement, we
observed:
UNITED STATES v. GONZALEZ 7961
The district court found that Naghani had acted reck-
lessly based on the entire course of Naghani’s
alleged conduct. The district court properly found
that Naghani was aware of the risk created by his
smoking, obstreperous behavior and threats, and that
such conduct constituted a gross deviation from a
standard of ordinary care. Naghani should have been
aware that his behavior would divert the flight atten-
dants’ attention from their duties and require their
presence. If an actual emergency had arisen at
another part of the plane, the distraction would have
delayed, and perhaps prevented, an effective
response by the flight attendants.
Id. at 1263 (emphasis added).2
The Tenth Circuit’s treatment of § 2A5.2(a)(2) is consistent
with our analysis. See United States v. Jenny, 7 F.3d 953(10th Cir. 1993). In Jenny, the defendant was convicted of
intimidating a flight crew under 49 U.S.C. § 1472(j), the pre-
decessor statute to 49 U.S.C. § 46504. The district court
applied a base offense level of 18 under § 2A5.2(a)(2). Id. at
954. Jenny cursed at the flight attendant and other passengers,
made sexually suggestive remarks and gestures, grabbed a
female flight attendant’s breast and a female passenger’s arm,
and approached the cockpit area and sat in the flight atten-
dant’s jump seat, among other things. Id. at 954-55. The cap-
tain was forced to make an unscheduled landing due to
2
We cannot embrace the dissent’s suggestion that Naghani is “not bind-
ing because the court [in Naghani] did not consider the meaning of ‘air-
craft’ or what level of interference satisfied the Guideline,” or that its
analysis is dicta. Dissenting op. at 7971-72. Naghani squarely addressed
the question presented here—i.e., whether the district court’s application
of § 2A5.2(a)(2) was an abuse of discretion. Under the Guidelines in effect
at sentencing, the government was required to show that Naghani had
endangered both “the aircraft and passengers.” See U.S.S.G. § 2A5.2(a)(2)
(2001). That the court did not parse the meaning of aircraft or that its anal-
ysis relating to § 2A5.2 was brief, does not render its conclusion dicta.
7962 UNITED STATES v. GONZALEZ
Jenny’s conduct. Id. at 955. The court affirmed the sentencing
enhancement under § 2A5.2(a)(2), holding that Jenny “acted
with an awareness to forseeable consequence.” Id. at 957.
Two district court cases are also particularly instructive. In
Guerrero, the court held that the enhancement applied when
an intoxicated passenger was so unruly that the captain con-
cluded that he must return to John F. Kennedy International
Airport rather than continue on to Santo Domingo, Dominican
Republic. 193 F. Supp. 2d at 609-10. The passenger’s behav-
ior included shoving, hitting, sexual touching, and threats that
he was going to kill everyone on the aircraft. Id. at 610. The
pilot left his duties in the cockpit to deal with the passenger,
and the aircraft had to be turned around and returned to New
York.3 Id. The court held that these actions exposed the air-
craft and passengers to harm within the meaning of the Guide-
lines.
In the second case, United States v. Spellman, 243 F. Supp.
2d 285 (E.D. Pa. 2003), the court held that it could have
applied the reckless endangerment enhancement, but did not
do so because the parties had stipulated to a base offense level
of nine. Id. at 295 n.19. During the flight, Alonzo Spellman,
a former defensive end for the Chicago Bears, was extremely
abusive and threatening to the flight attendants and fellow
passengers, and made comments like, “I hope we make it to
Philadelphia before this plane crashes into a building.” Id. at
287. He also “talked out loud about opening the door while
in flight” and said to the flight crew, “Give me a parachute
and I’ll jump off this plane.” Id. After multiple failed attempts
by the captain, flight attendants and passengers to restrain
3
Of course it is not necessary for the pilot to leave the cockpit to address
a crisis, thus diverting his attention. Here, the pilot’s ordinary flight rou-
tine was seriously disrupted when an alarmed flight attendant alerted him
to the bomb threats and the fracas in the cabin. Given the increased secur-
ity measures and policies in effect post-9/11, it may well have been impru-
dent for the pilot to have left the cockpit under the circumstances.
UNITED STATES v. GONZALEZ 7963
Spellman, the pilot requested a priority handling that allowed
the plane to land early at the Philadelphia airport. See id. at
288. The district court found that Spellman created an atmo-
sphere of “pervasive terror.” Id. at 294. As the court summa-
rized:
In typical prosecutions under Sections 1472(j) and
46504, the defendants insult, physically harass, and
in some cases even threaten to kill flight personnel.
However, it is the rare case in which passengers
experience the degree of fear and intimidation that
Spellman instilled in so many of his fellow passen-
gers. Indeed, we found few cases in which the pas-
sengers had serious grounds to worry that the
offender would actually bring down the plane.
Id. at 293 & n.13 (collecting cases) (emphasis added).
[3] As these cases illustrate, diversion of the aircraft,
behavior that instills fear and terror in the other passengers or
the flight crew, and threats that could result in harm to the air-
craft are sufficient, depending on the combination of circum-
stances, to constitute reckless endangerment of the safety of
the aircraft. Gonzalez’s conduct encompassed these risks and
more.
[4] To be sure, simply disrupting the flight attendants and
causing other passengers discomfort does not rise to the level
of reckless endangerment. But Gonzalez’s statements about
the bomb were no joking matter. Surely threats about a bomb
—whether couched in terms of “do I have to say I have a
bomb?” or “I’m blowing the plane up, I’m taking it down”—
go beyond interference with the flight crew’s performance of
duties and constitute “a gross deviation from the standard of
care that a reasonable person would exercise in such a situa-
tion.” U.S.S.G. § 2A1.4, app. n.1. The passengers were yell-
ing, “[w]e’re going to crash. We’re going down.” The air of
7964 UNITED STATES v. GONZALEZ
terror created by Gonzalez, who candidly admitted he knew
what he was doing, was reckless in the extreme.
[5] Gonzalez’s argument that his conduct—whatever its
impact on the flight crew and passengers—does not amount
to endangerment of the aircraft, misses the mark because his
conduct endangered both the people and the aircraft itself. An
aircraft is a captive, closed environment in which the safety
of the passengers and the integrity of the aircraft are closely
intertwined. It doesn’t take an aeronautical engineer to recog-
nize 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. Nowhere in § 2A5.2(a)(2) is there a requirement that
an actual weapon or bomb be found on the plane. Such a nar-
row interpretation would remove highly reckless and threaten-
ing conduct from the ambit of § 2A5.2(a)(2), a result that
makes no common sense.
[6] And finally, as occurred in both Guerrero and Spell-
man, Gonzalez’s conduct precipitated an emergency diversion
of the aircraft and a return to Las Vegas. This diversion was
yet another risk to the aircraft caused by Gonzalez’s escalat-
ing terror.4
The chaos engendered by Gonzalez goes far beyond his
characterization of a threat solely to the safety of the crew and
passengers. Their ultimate safety is inextricably bound with
the safety of the aircraft but we need not decide whether a
4
The dissent’s statement that “the more reasonable inference [regarding
the aircraft’s diversion] would seem to be that . . . the pilot concluded that
it would be safer to return to Las Vegas, rather than continue on to
Ontario, California,” dissenting op. at 7971, can only be described as a
logical fallacy. The pilot apparently considered a diversion of the aircraft
back to Las Vegas, even under emergency, distress situations, to be safer
than proceeding to Ontario once Gonzalez threatened to bring down the
plane. But such diversion was certainly not safer than the normal operation
of the flight to Ontario in the absence of Gonzalez’s disruptive behavior
and threats.
UNITED STATES v. GONZALEZ 7965
threat solely to the passengers would be sufficient to invoke
the enhancement. Gonzalez recklessly endangered the aircraft
itself. He does not present the case of a drunken passenger
who tips over the drink cart, harasses a flight attendant, threat-
ens a passenger, or is simply obstreperous. The enhancement
requires more and Gonzalez’s behavior easily falls within the
contours of “recklessly endangering the safety of . . . an air-
craft.” U.S.S.G. § 2A5.2(a)(2).
III. STANDARD OF PROOF FOR RECKLESS ENDANGERMENT
Section 2A5.2 provides for a base offense level of nine for
the statute of conviction, 49 U.S.C. § 46504. U.S.S.G.
§ 2A5.2(a)(4). However, “if the offense involved recklessly
endangering the safety of . . . an aircraft,” the base offense
level is 18. U.S.S.G. § 2A5.2(a)(2). Gonzalez argues that the
enhancement must be supported by clear and convincing evi-
dence.
[7] As a general rule, the party seeking to adjust an offense
level must establish by a preponderance of the evidence that
the adjustment is merited. See United States v. Charlesworth,
217 F.3d 1155, 1158 (9th Cir. 2000). However, a sentencing
factor that has “an extremely disproportionate effect on the
sentence relative to the offense of conviction” may require a
district court to find that factor by clear and convincing evi-
dence, rather than by a preponderance of the evidence. See
United States v. Munoz, 233 F.3d at 1117, 1127 (9th Cir. 2000).5
Although we conclude that the heightened standard is
appropriate here, we review for plain error because Gonzalez
did not raise this argument before the district court. United
States v. Bahe, 201 F.3d 1124, 1127 (9th Cir. 2000). “Plain
error is found only where there is (1) error, (2) that was clear
5
Post-Booker, these same standards remain applicable. See United
States v. Kilby, 443 F.3d 1135, 1140-41 & n.1 (9th Cir. 2006); see also
United States v. Staten, 466 F.3d 708, 717 (9th Cir. 2006).
7966 UNITED STATES v. GONZALEZ
or obvious, (3) that affected substantial rights, and (4) that
seriously affected the fairness, integrity, or public reputation
of the judicial proceedings.” Id. (citation and quotation marks
omitted); see United States v. Jordan, 256 F.3d 922, 926 (9th
Cir. 2001) (applying plain error standard to a case where
defendant failed to object to application of preponderance of
the evidence standard at sentencing).
[8] To assess whether the heightened standard of proof
applies, we review the totality of the circumstances, United
States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005), including
the following factors:
1. Does the enhanced sentence fall within the max-
imum sentence for the crime alleged in the
indictment?
2. Does the enhanced sentence negate the pre-
sumption of innocence or the prosecution’s bur-
den of proof for the crime alleged in the
indictment?
3. Do the facts offered in support of the enhance-
ment create new offenses requiring separate
punishment?
4. Is the increase in sentence based on the extent of
a conspiracy?
5. Is the increase in the number of offense levels
less than or equal to four?
6. Is the length of the enhanced sentence more than
double the length of the sentence authorized by
the initial sentencing guideline range in a case
where the defendant would otherwise have
received a relatively short sentence?
UNITED STATES v. GONZALEZ 7967
United States v. Johansson, 249 F.3d 848, 854 (9th Cir. 2001)
(citation omitted) (quoting United States v. Valensia, 222 F.3d
1173, 1182 (9th Cir. 2000), cert. granted and judgment
vacated on other grounds, 532 U.S. 901 (2001)). No single
factor is controlling. Dare, 425 F.3d at 642.
[9] Although the first four factors are either not particularly
relevant or do not weigh in favor of a heightened standard, the
last two factors are significant. In Jordan we concluded that
a nine-level enhancement, which we have here, “strongly sup-
ports application of the clear and convincing evidence stan-
dard.” Jordan, 256 F.3d at 929. The offense level increase,
the fifth factor, weighs heavily in favor of a heightened bur-
den. The sixth factor, whether the length of the enhanced sen-
tence is more than double the length of the sentence
authorized by the initial Guideline range in a case where the
defendant would otherwise have received a relatively short
sentence, likewise counts in Gonzalez’s favor. The nine-level
enhancement raised the applicable Guideline range from zero
to six months (where probation is a viable option) to 21 to 27
months, which is more than four times the upper end of the
Guideline range.
[10] We have previously invoked the clear and convincing
evidence standard where only the two final factors favor its
application, and nothing suggests that we should take a differ-
ent approach here. See Jordan, 256 F.3d at 929 (holding that
heightened standard should have been applied when the sen-
tence was more than doubled). See also id. at 934(O’Scannlain, J., concurring) (“Since Hopper, we appear to
have consistently held that when the enhancement is greater
than four levels and more than doubles the applicable sentenc-
ing range, then the enhancements must be proved under the
‘clear and convincing’ standard of proof.” (collecting cases)).
[11] The district court did not specify the standard of proof
nor did Gonzalez’s counsel raise the issue. Gonzalez is not
entitled to reversal, however, simply because the district court
7968 UNITED STATES v. GONZALEZ
should have applied the clear and convincing standard. The
failure to articulate the standard did not prejudice Gonzalez.
As we explained in Jordan:
An error that is plain must also ‘affect substantial
rights.’ In most cases this language means that ‘the
error must have been prejudicial: It must have
affected the outcome of the district court proceed-
ings.’ . . . Jordan therefore must make a specific
showing of prejudice to satisfy this prong. However,
it is evident beyond doubt that Jordan’s increased
incarceration caused by the challenged enhance-
ments is prejudicial if these enhancements could not
have been proved by clear and convincing evidence.
256 F.3d at 930 (emphasis added). See also United States v.
Technic Servs., 314 F.3d 1031, 1046 (9th Cir. 2002) (holding
on plain error review that the record reflected the court found
the enhancements by clear and convincing evidence, based on
certain statements the judge made).
[12] Because the evidence in this case was overwhelming,
it is evident that the facts related to the enhancement were
established by clear and convincing evidence. The dispute
over Gonzalez’s language with respect to the bomb does not
change the calculus. Even accepting Gonzalez’s version, cou-
pled with the uncontroverted testimony of the flight attendants
and other aspects of Gonzalez’s behavior, the standard is eas-
ily met.
AFFIRMED.
TASHIMA, Circuit Judge, dissenting:
Gonzalez was convicted, on a plea of guilty, of one count
of interference with a flight crew member in violation of 49
UNITED STATES v. GONZALEZ 7969
U.S.C. § 46504. Accepting the recommendation of the Proba-
tion Officer, the district court doubled Gonzalez’s base
offense level — from level 9 to level 18 — for recklessly
endangering the safety of the aircraft under U.S.S.G.
§ 2A5.2(a)(2) without making any specific finding of fact that
the safety of the aircraft was, indeed, endangered. Because I
disagree that this enhancement is applicable in this case, I
respectfully dissent.
Even reading the sentencing record and all of the materials
available to the district court at sentencing in the light most
favorable to upholding the sentence, the record does not come
close to establishing that Gonzalez posed any threat to the air-
craft in this case. Based on the plain meaning of
§ 2A5.2(a)(2), whether or not Gonzalez’s conduct threatened
the flight attendants and passengers is a separate question, to
which this enhancement does not speak. The majority mis-
takenly conflates the two concepts — threat or endangerment
of a flight attendant and endangerment of the aircraft. Accep-
tance of the majority’s reasoning would render the enhance-
ment under § 2A5.2(a)(2) applicable to virtually every case
for violation of 49 U.S.C. § 46504. This is contrary to the
Guideline’s unambiguous language and the clear intent of the
Sentencing Commission.
“This Court applies the rules of statutory construction when
interpreting the Sentencing Guidelines. . . . If the language of
a statute is unambiguous, the plain meaning controls.” United
States v. Robinson, 94 F.3d 1325, 1328 (9th Cir. 1996); see
also United States v. Carter, 421 F.3d 909, 911-12 (9th Cir.
2005) (examining the meaning of U.S.S.G. § 2K2.1(b)(4)
according to the rules of statutory construction). In assessing
plain meaning, “ ‘unless otherwise defined, words will be
interpreted as taking their ordinary, contemporary, common
meaning.’ ” Carter, 421 F.3d at 911 (quoting Perrin v. United
States, 444 U.S. 37, 42 (1979)).
As applicable here, § 2A5.2(a)(2) calls for an enhancement
“if the offense [of interference with a flight crew member or
7970 UNITED STATES v. GONZALEZ
flight attendant] involved recklessly endangering the safety of
. . . an airport or an aircraft.” U.S.S.G. § 2A5.2(a)(2)
(emphasis added). To take a typical definition, an “aircraft” is
“a weight-carrying machine or structure for flight in or navi-
gation of the air.” Webster’s Third New International Dictio-
nary (Unabridged) 46 (2002).
The majority improperly disregards the plain meaning of
“aircraft” and includes “flight attendants and passengers”
within the meaning of “aircraft.”1 Under the majority’s read-
ing, no risk or endangerment to the aircraft itself or any of its
components need be present in order for § 2A5.2(a)(2) to
apply. The facts in this case vividly illustrate why the majori-
ty’s interpretation of the Guideline is untenable, notwithstand-
ing its unsupported and bald assertion that “Gonzalez’s
irresponsible statements, threats and conduct easily qualified
as reckless endangerment to ‘the safety of . . . an aircraft’
within the meaning of § 2A5.2(a)(2).” Maj. op. at 7959.2
In this case, there was no bomb on the plane, and there is
no evidence that Gonzalez’s empty (and empty-handed), pan-
icked threat endangered the safety of the machine or structure
composing the “aircraft.” Contrary to the majority’s sugges-
tion, the fact that flight attendants and passengers were dis-
1
The majority concludes that “endangerment of the aircraft does not
require evidence of actual harm to the aircraft.” Maj. op. at 7959 (empha-
sis in original). I do not dispute the majority’s point that one can endanger
an object without causing it actual harm. See Price v. United States Navy,
39 F.3d 1011, 1019 (9th Cir. 1994); Ethyl Corp. v. EPA, 541 F.2d 1, 13
(D.C. Cir. 1976). However, the object of the endangerment under U.S.S.G.
§ 2A5.2(a)(2) must still be the aircraft, meaning the machine involved, as
opposed to the flight attendants, which was not shown in this case.
2
The burden of proof is on the party seeking to adjust an offense level
to establish by a preponderance of the evidence that the adjustment is mer-
ited. United States v. Charlesworth, 217 F.3d 1155, 1157-58 (9th Cir.
2000); United States v. Barnes, 993 F.2d 680, 683 (9th Cir. 1993). Having
failed to make an adequate record at sentencing, as discussed below, the
government clearly did not meet its burden here, contrary to the holding
of the majority.
UNITED STATES v. GONZALEZ 7971
turbed, even panicked, and the plane was turned around is
insufficient to meet the Guideline.3 There was no evidence
presented in this case, through testimony from the pilot or
otherwise, that the pilot’s ability effectively to operate the
plane was inhibited, or that the diversion caused any risk to
aircraft safety. Also lacking any evidence that the return of
the aircraft to Las Vegas precipitated any danger, moreover,
this case is distinguishable from the cases upon which the
majority relies.4
Most importantly, the majority improperly relies on United
States v. Naghani, 361 F.3d 1255 (9th Cir. 2004). Contrary to
the majority, I do not believe that Naghani controls and I con-
clude that what constitutes endangerment of the aircraft is an
open question. First, Naghani is not binding because the court
did not consider the meaning of “aircraft” or what level of
3
The majority asserts that the “diversion of the aircraft and a return to
Las Vegas” “was yet another risk to the aircraft caused by Gonzalez’s
escalating terror.” Maj. op. at 7964. But the majority does not explain how
this decision and maneuver endangered the aircraft, unless returning to
Las Vegas is, for some unexplained reason, more dangerous to aircraft
safety than continuing on to Ontario, California. Absent a further explana-
tion, and there is none in the record, the more reasonable inference would
seem to be that, because this incident happened “[s]hortly after take-off,”
Maj. op. at 7953, the pilot concluded that it would be safer to return to Las
Vegas, rather than to continue on to Ontario. In any event, the majority’s
weak retort that “such diversion was certainly not safer than the normal
operation of the flight to Ontario,” id. at 7964 n.4 (emphasis added), is a
far cry from establishing that such “diversion” endangered the aircraft.
4
Even if the government were correct that a threat alone can endanger
the safety of an aircraft (i.e., without any weapon or bomb needing to be
present), one would still need a causal connection between the threat and
actual endangerment — to the mechanics or structure of an aircraft —
before the enhancement could apply. The district court did not make any
factual findings about endangerment to the aircraft, and the only testimony
from flight attendants indicated fear for themselves and passengers on the
plane, and the passengers’ fear about the emergency exit door being
opened. Notably, the feared opening of the emergency exit door was
shown to be a nullity because there was testimony at the sentencing hear-
ing that it is impossible to open a door in flight.
7972 UNITED STATES v. GONZALEZ
interference satisfied the Guideline. These questions were
never squarely raised. Instead, the briefing was geared
towards the question of what constituted reckless conduct,
and there is no indication that the court contemplated the
issues addressed here, namely the definition of “aircraft” or
the specific meaning of that enhancement. See Local 144
Nursing Home Pension Fund v. Demisay, 508 U.S. 581, 592
(1993) (characterizing as dicta writings that were “uninvited,
unargued, and unnecessary to the Court’s holdings”). Accord-
ingly, Naghani is not instructive, much less controlling.
Under the majority’s interpretation of Naghani, moreover,
the enhancement would apply in virtually every case of inter-
fering with a flight attendant, rendering the distinction that the
Guideline draws meaningless. The court there stated that “[i]f
an actual emergency had arisen at another part of the plane,
the distraction [based on the defendant’s conduct] would have
delayed, and perhaps prevented, an effective response by the
flight attendants.”5 Naghani, 361 F.3d at 1263. Under this
logic, any interference with a flight attendant endangers the
aircraft itself. If this were true, no enhancement would be nec-
essary because the utmost punishment would be implied in
the offense of conviction, as the majority seems to hold.6
5
It would be pointless to speculate what sort of “actual emergency” a
flight attendant would be responsible for responding to, except to note that
a flight attendant has no responsibility for the safe operation of the air-
craft. That is the responsibility of the flight deck crew.
6
To the contrary, to date, it appears to have been undisputed that endan-
gering the safety of an aircraft was not an element of a violation of 49
U.S.C. § 46504. To this end, it is important to note that the actual lan-
guage of 49 U.S.C. § 46504, governing “interference with flight crew
members and attendants,” covers “lessen[ing] the ability of the member or
attendant to perform” his or her duties. 49 U.S.C. § 46504 (emphasis
added). Clearly, the statute thereby takes into account the lessening of a
flight attendant’s ability to ensure the safety of the aircraft. See United
States v. Meeker, 527 F.2d 12, 14 n.2 (9th Cir. 1975) (“We feel . . . that
when a defendant participates in proscribed conduct and causes a crew
member to lose his autonomy over doing what would ordinarily be his
UNITED STATES v. GONZALEZ 7973
For this reason, the dicta in Naghani (and the majority’s
reliance on it) is suspect because criminal liability and punish-
ment may only be imposed when the operative language of
the statute or Guideline at issue clearly dictates that result. See
Rewis v. United States, 401 U.S. 808, 812 (1971)
(“[A]mbiguity concerning the ambit of criminal statutes
should be resolved in favor of lenity.”); Bifulco v. United
States, 447 U.S. 381, 387 (1980) (“This policy of lenity
means that the Court will not interpret a federal criminal stat-
ute so as to increase the penalty that it places on an individual
when such an interpretation can be based on no more than a
guess as to what Congress intended.”) (citations and quotation
marks omitted). It is well-established that “one ‘is not to be
subjected to a penalty unless the words of the statute plainly
impose it.’ ” United States v. Campos-Serrano, 404 U.S. 293,
297 (1971) (emphasis added); see also United States v.
Karaouni, 379 F.3d 1139, 1143 (9th Cir. 2004) (same). Such
is not the situation here.
Even if Naghani controls on this issue, the evidence pre-
sented in that case was sufficient to suggest that the aircraft
was endangered, whereas it was not sufficient to establish
such endangerment in this case. Where Naghani lit a cigarette,
creating smoke, and then flushed the cigarette down the toilet,
one could more reasonably conclude that the aircraft itself
was endangered (by the danger of fire). See Naghani, 361
F.3d at 1258.
United States v. Guerrero, 193 F. Supp. 2d 607 (E.D.N.Y.
2002), similarly presented a case much more favorable to the
duty, a violation of section 1472(j) has occurred.”); United States v. Flo-
res, 968 F.2d 1366, 1371 (1st Cir. 1992); United States v. Tabacca, 924
F.2d 906, 911 (9th Cir. 1991). Accordingly, Naghani’s dicta is itself con-
trary to previous decisions of this court, insofar as it read the satisfaction
of the elements of 49 U.S.C. § 46504 itself as warranting the enhance-
ment.
7974 UNITED STATES v. GONZALEZ
application of the enhancement. In that case, the record dis-
closed:
Captain Williams testified that he had to leave the
cockpit to deal with the defendant, when he learned
from the flight attendant that she could not handle
the situation herself. Captain Williams testified that
this increased the risk to the safety of the aircraft,
which is designed to be flown by two pilots. Defen-
dant further endangered the aircraft and passengers
when he pushed Captain Williams, because this
exposed the aircraft and crew to the danger of having
their captain incapacitated. Not only did Captain
Williams testify that he thought defendant was mak-
ing the flight unsafe, but his actions confirm that he
believed that defendant was endangering the aircraft
and passengers. Captain Williams testified that he
only left the cockpit when he concluded there was a
potential danger to the aircraft, and, upon returning
to the cockpit, Captain Williams turned the aircraft
around and returned to New York City because he
concluded that it was unsafe to continue on to Santo
Domingo.
Id. at 609-10.
United States v. Jenny, 7 F.3d 953 (10th Cir. 1993), is also
distinguishable because the captain left the cockpit to attend
to the defendant’s inappropriate behavior. Id. at 955. More-
over, the court in Jenny was concerned with the definition of
“reckless” and did not engage in defining the precise scope of
what needed to be endangered in order for the enhancement
to apply. See id. at 955-57. The facts also distinguish this case
from United States v. Spellman, 243 F. Supp. 2d 285 (E.D. Pa.
2003), where the pilot testified that there were additional risks
and that there was “ ‘no tolerance for error’ ” in the landing
UNITED STATES v. GONZALEZ 7975
that he was caused to execute due to the defendant’s inappro-
priate conduct. Id. at 288.7
All of the out-of-Circuit cases relied on by the majority —
Jenny, Guerrero, and Spellman — share a common character-
istic that is lacking in this case. In all of them, the pilot left
the flight deck — the cockpit — to confront the unruly pas-
senger in the passenger compartment. Here, by contrast, the
pilot did not leave the cockpit; Gonzalez did not interact with
the flight crew at all. In this regard, it is important to note that
the FAA regulations requiring that cockpit doors be rein-
forced to thwart a September 11-like unauthorized entry of a
passenger into the cockpit were already in place well before
the date of this incident. See Flightcrew Compartment Access
and Door Designs, 67 Fed. Reg. 2112, 2114 (Jan. 15, 2002).
As we know from the history of United Flight 93 on Septem-
ber 11, 2001, it is control of the cockpit that determines, to a
large degree, the safety of the aircraft and it is in response to
those events that the new regulations requiring the strengthen-
ing of flight deck doors and locks was promulgated.8 See id.7
The majority relies on these cases to state that “diversion of the air-
craft, behavior that instills fear and terror in the other passengers or the
flight crew, and threats that could result in harm to the aircraft are suffi-
cient, depending on the combination of circumstances, to constitute reck-
less endangerment of the safety of the aircraft.” Maj. op. at 7963.
However, there is no evidence in this case that diversion of the aircraft
endangered the aircraft, and making passengers (and even the flight crew)
fearful and empty threats that cannot be carried out can scarcely be said
to endanger the aircraft any more than interference with flight attendants
alone does, under 49 U.S.C. § 46504. Tellingly, the majority immediately
acknowledges that “simply disrupting the flight attendants and causing
other passengers discomfort does not rise to the level of reckless endan-
germent.” Maj. op. at 7963. What the majority fails to acknowledge, and
a reason I dissent, is that this is the only kind of finding the evidence here
supports.
8
Because Gonzalez did not interact with the flight crew, the question of
whether his conduct could have been properly construed as reckless is also
an open one, because there is no indication that he “was aware of the risk
created by his conduct” to the aircraft. See Naghani, 361 F.3d at 1263
7976 UNITED STATES v. GONZALEZ
In this case, control of the cockpit or safety of the flight crew
was never endangered.
The majority speculates that the pilot’s flight routine was
“seriously disrupted.” Maj. op. at 7962 n.3. But, again, there
is no evidence of how serious any disruption may have been
and whether such disruption endangered the safety of the air-
craft. Indeed, the majority’s concession that “it may well have
been imprudent for the pilot to have left the cockpit under the
circumstances,” id., is a virtual admission that, because the
flight crew remained securely in the cockpit, the aircraft was
not endangered.
Gonzalez’s position is further strengthened by the fact that
the cases the majority cites are not the only cases where cir-
cumstances favorable to the application of the enhancement
have appeared. See, e.g., United States v. Vickaryous, 1996
WL 2773 at *1-*2 (10th Cir. 1996) (applying enhancement
under § 2A5.2(a)(2) where the defendant struck the pilot in
the jaw, causing him to have severe difficulties performing his
duties, including requiring assistance for an emergency land-
ing); United States v. Bocook, 1995 WL 371250 (4th Cir.
1995) (per curiam) (affirming enhancement under
(applying definition of reckless from U.S.S.G. § 2A1.4 to § 2A5.2);
U.S.S.G. § 2A1.4, Application Note 1. Notably, too, the government could
easily have attempted to meet its burden by presenting the testimony of the
pilot that his performance was affected or that he believed the aircraft was
in danger, or any other evidence that the aircraft was endangered. The
government failed to do so. Thus, the majority’s statements about Gonza-
lez’s general recklessness, Maj. op. at 7964-65, are inapposite because any
such recklessness did not endanger the safety of the aircraft. The majority
also states that “[i]t doesn’t take an aeronautical engineer to recognize that
a threat of a bomb in [an aircraft] environment and the havoc that such a
threat might cause is a threat to the safety of the aircraft.” Maj. op. at 7964
(emphasis added). Although I fail to follow the logic of this assertion, its
emphasis on “might cause” renders the speculation superfluous. Signifi-
cantly, the actualization of such potential is what should have been proven
in order to prove endangerment to the safety of the aircraft. It was not.
UNITED STATES v. GONZALEZ 7977
§ 2A5.2(a)(1), dealing with intentional rather than reckless
endangerment, where the defendant pretended to be an air
traffic controller and gave false statements to pilots, including
as they were attempting to land). Gonzalez’s situation was
quite different from these cases, and I believe these distinc-
tions should guide our decision here.
Even if one looks beyond the plain meaning of the Guide-
line, the history of this enhancement also supports Gonzalez’s
position. Before 2002, as the majority mentions, the enhance-
ment applied to reckless endangerment of “an aircraft and
passengers.” See, e.g., U.S.S.G. § 2A5.2 (2001) (emphasis
added). The deletion of the requirement that passengers be
endangered, and the alteration of this enhancement to apply
to “an airport or an aircraft,” show that this enhancement —
at the time Gonzalez was sentenced — was geared solely
towards punishing conduct that endangers objects, not people.
See U.S.S.G. Supplement to Append. C, amend. 637, at 234.
This change was accompanied by enhanced penalties for
assault and other dangers to people that may attend these
crimes. Given these other provisions, it is all the more clear
that Gonzalez’s conduct did not come within the meaning of
this enhancement. The overall penalties provided by the
amendment were higher than before, moreover, so reading the
enhancement according to its plain meaning seems quite con-
sistent with Congress’ intent.9
9
The commentary to the 2002 amendment recognized concern that the
base offense level provided in U.S.S.G. § 2A5.2(a)(2) was inadequate in
situations involving a dangerous weapon and reckless disregard for the
safety of human life. See U.S.S.G. Supplement to Append. C, amend. 637,
at 247. To sanction conduct involving mortal peril, accordingly, the Sen-
tencing Commission supplemented the Guideline to provide for a mini-
mum offense level of 24. See id.; U.S.S.G. § 2A5.2(b)(1) (2002). The
commentary also indicated that the Commission was becoming more con-
cerned with threats to mass transportation systems and facilities, see
U.S.S.G. Supplement to Append. C, amend. 637, at 247, which is consis-
tent with my reading of the Guideline.
7978 UNITED STATES v. GONZALEZ
Because the aircraft-endangering enhancement should not
apply if there is nothing more than interfering with flight
attendants and potentially harming them and passengers, it
was wrongfully applied in this case. Accordingly, I would
vacate the sentence and remand this case to the district court.
See, e.g., United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir.
2006) (“If there was material error in the Guidelines calcula-
tion, we will remand for resentencing . . . .”); United States
v. Menyweather, 431 F.3d 692, 696-97 (9th Cir. 2005) (“[I]f
the sentence imposed resulted from an incorrect application of
Moreover, the previous iteration of the Guideline shows that the Sen-
tencing Commission clearly understood aircraft and flight attendant / pas-
senger safety as distinct concepts. This fact further supports Gonzalez’s
claim that the meaning of “aircraft” is unambiguous and does not include
flight attendants and passengers. See U.S.S.G. Supplement to Append. C,
amend. 637, at 234. Moreover, as Gonzalez suggests, the structure of
U.S.S.G. § 2A5.2 — even disregarding the fact of the amendment — inti-
mates that the Guideline does not equate endangering a flight attendant
with endangering the aircraft, because it provides a separate cross-
reference to assault Guidelines when resort to assault Guidelines would
result in a higher base offense level. See U.S.S.G. § 2A5.2(a)(3).
Thus, the majority misreads the effects of the amendments, and misap-
plies their implications to this case. See Maj. op. at 7958. That is, the
majority writes that “it is now easier to invoke the sentence enhancements
because § 2A5.2(a)(2) does not require a showing of endangerment to the
passengers.” Maj. op. at 7958 (emphasis in original). However, endanger-
ment of passengers is not relevant in this case. The question here is endan-
germent of the safety of the aircraft. The majority also misunderstands the
enhancement when it states, as an example, that “even if an individual
threatened to blow up an empty aircraft, he could receive an enhancement
under § 2A5.2(a)(2).” This should not be the case, because a threat to
blow up an aircraft does not endanger the aircraft. Even if, moreover, “in
the case of an aircraft loaded with passengers, Congress reasonably
assumed, as would most people, that endangering an aircraft would endan-
ger the passengers,” that is not what the Guideline references. Congress
referred to endangerment of the aircraft as what was required, and
whether or not Congress intended to protect passengers through the appli-
cation of this enhancement, Congress did not use language that referred
to passengers in its test.
UNITED STATES v. GONZALEZ 7979
the Sentencing Guidelines, and the error was not harmless,
ordinarily we will remand to the district court for further sen-
tencing proceedings, permitting the district court on remand
to consider the proper Guidelines sentence along with other
sentencing factors”).10
In sum, this case was simply a case of interfering with a
flight attendant, and applying the enhancement under
U.S.S.G. § 2A5.2(a)(2) here is tantamount to saying that it
applies in virtually any case under 49 U.S.C. § 46504. The
sentence imposed on Gonzalez was unreasonable because the
district court miscalculated the applicable Guidelines range;
consequently, I would reverse and remand for resentencing.
For all of these reasons, I respectfully dissent.
10
Even if the enhancement could have applied to Gonzalez, he was
surely prejudiced because the enhancement was not proven by clear and
convincing evidence — to which end I note the glaring absence of any tes-
timony about danger to the safety of the aircraft. See, e.g., United States
v. Jordan, 256 F.3d 922, 930 (9th Cir. 2001) (“[I]t is evident beyond doubt
that Jordan’s increased incarceration caused by the challenged enhance-
ments is prejudicial if these enhancements could not have been proved by
clear and convincing evidence.”). Gonzalez also convincingly argues that
it is possible that the district court based its finding on a belief that Gonza-
lez recklessly endangered only the flight attendants and/or passengers. The
government made an argument that could be read to this effect, namely
when it said that it was “first addressing the issue whether or not the
defendant was — had recklessly endangered other passengers[’] lives on
the airplane.” There is nothing in the record to indicate that the district
court did not share the same misapprehension of the Guideline, particu-
larly in light of its failure to make any findings on this issue, and this fact
also counsels in favor of remand.