If you’re bored and feel compelled to shine a commercial laser pointer at passing aircraft, don’t do it, and if you need someone to explain to you why, ask one young man from North Hollywood, California, who was staring at a 30-month sentence in federal prison until three weeks ago, when the court of appeals reviewed his case and sent it back.
The boy probably never saw it all coming, either.
Three years ago, he was an 18-year-old high-school student who probably thought it was a toy or a joke. One of his friends had a green, commercial-grade laser pointer, and the two of them had been goofing around with it, pointing it at stop signs, parked cars, and other objects in their neighborhood. One night, as he was sitting in his backyard near the Burbank airport, the guy shined the laser at an incoming, seven-passenger Cessna. That caused the local police department to send a helicopter to find the source, and when it came, the guy pointed the laser at the helicopter, too. When the authorities got to his house, he admitted he was the one with the laser, and they arrested him on state charges of pointing a laser at an aircraft. Three weeks later, though, they took him federal, indicting him under a new and analogous federal law that had gone into effect six weeks before the night of his arrest. See 18 U.S.C. § 39A. It’s punishable by up to five years in prison, a $250,000 fine, or both.
The problem is that commercial laser pointers can cause flash-blindness to the pilot of an aircraft or otherwise distract him or her, endangering the flight during critical phases like takeoff and landing. You may not know it, but the beam of the laser spreads and expands the farther out it goes, even beyond what your eyes may see, and worse, the beam can refract off the glass of a cockpit in a way that lights the whole thing up. It can be especially disorienting at night, when a pilot’s eyes have adjusted to the dark.
But there was no evidence the teenager knew any of that, and the government didn’t present any. Nor did it prove that within six weeks of the federal law’s effective date, these dangers were generally known to the average person, much less the average teen. The guy’s friend had warned him not to shine the laser directly at someone’s eyes, but that’s very different from warning him that the laser could reach an aircraft and blind a pilot inside the cockpit from thousands of feet away. In fact, the government even believed the teen was suitable for a pretrial diversion program that would have required him to plead guilty but then put him on probation, where he could earn a dismissal. But the court denied it.
Anyway, the guy pleaded guilty, and the only issue at sentencing was whether he deserved an enhancement under the federal sentencing guidelines for “recklessly endangering” the safety of an aircraft. See U.S.S.G. § 2A5.2(a)(2)(A).
That made a big difference to him because the enhancement doubled his guideline score, so to speak. Without it, his range was zero to six months, and he had a good chance of probation. With it, he was looking at 18-24 months in prison.
Because of this pronounced impact, the government needed to prove the enhancement by clear and convincing evidence. United States v. Gonzalez, 492 F.3d 1031, 1039-40 (9th Cir. 2007). But the court applied it even though there was no evidence, let alone clear and convincing evidence, that the guy understood the risk that his conduct created. The court then imposed an above-guideline sentence of thirty months in prison followed by three years of parole. But the sentence was wrong, so the court of appeals sent it back.
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