United States v. Sergio Rodriguez , 790 F.3d 951 ( 2015 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                No. 14-10122
    Plaintiff-Appellee,
    D.C. No.
    v.                       1:13-cr-00109-
    LJO-SKO-1
    SERGIO PATRICK RODRIGUEZ, AKA
    Javier Rodrigues,
    Defendant-Appellant.        OPINION
    Appeal from the United States District Court
    for the Eastern District of California
    Lawrence J. O’Neill, District Judge, Presiding
    Argued and Submitted
    June 8, 2015—San Francisco, California
    Filed June 24, 2015
    Before: Barry G. Silverman, Ronald M. Gould,
    and Andrew D. Hurwitz, Circuit Judges.
    Opinion by Judge Silverman
    2                UNITED STATES V. RODRIGUEZ
    SUMMARY*
    Criminal Law
    The panel reversed a conviction for attempting to interfere
    with the safe operation of an aircraft, in violation of
    18 U.S.C. § 32(a)(5) and (8), and remanded for resentencing
    on a conviction for aiming a laser pointer at an aircraft, in
    violation of 18 U.S.C. § 39A.
    The panel held that there is insufficient evidence to
    support the conviction under § 32(a)(5) and (8), which
    required proof of both a willful attempt to interfere with an
    aircraft and a reckless disregard for human life, where the
    evidence showed that the defendant was attempting to see
    how far his laser would go at night and aimed it at a
    helicopter, but there is no evidence that he was trying to
    interfere with the pilot.
    The panel remanded for resentencing on the § 39A
    conviction because the district court did not have the benefit
    of this court’s decision in United States v. Gardenhire, 
    784 F.3d 1277
    (9th Cir. 2015), and premised the sentence for the
    § 39A conviction, in part, on the fact that the defendant had
    also been convicted of violating § 32(a)(5), (a)(8).
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. RODRIGUEZ                       3
    COUNSEL
    Carolyn D. Phillips (argued), Fresno, California, for
    Defendant-Appellant.
    Benjamin B. Wagner, United States Attorney, Camil A.
    Skipper, Appellate Chief, Karen A. Escobar and Michael G.
    Tierney (argued), Assistant United States Attorneys, Fresno,
    California, for Plaintiff-Appellee.
    OPINION
    SILVERMAN, Circuit Judge:
    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
    4               UNITED STATES V. RODRIGUEZ
    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
    UNITED STATES V. RODRIGUEZ                      5
    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. BACKGROUND
    On August 25, 2012, at around 9:00 p.m., Air George – a
    medical transport helicopter for the Valley Children’s
    Hospital in Fresno, California – had just set out to pick up a
    patient in Porterville. The helicopter was about 1,100 feet up,
    flying at a speed of around 130 miles per hour. Five minutes
    into the flight, the pilot noticed a “bright green flash inside
    the cabin” that caused “everything in the cabin [to] light up.”
    A few seconds later, he saw the flash again, this time for a
    slightly longer period of about two seconds. The flash caused
    a glare inside the cabin that made it “difficult to see outside.”
    The pilot realized it was a laser. He located the spot from
    which it was being shined at him in what appeared to be a zig
    zag motion, reported the laser to air traffic control, and
    continued on to Porterville.
    Fresno Police Department pilot Kenneth Schneider and
    Tactical Flight Officer George Valdez were on duty that night
    in the department’s helicopter, Air-1, and responded to air
    traffic control’s call. The pair began orbiting the area in
    which Air George’s pilot saw the laser, flying approximately
    6              UNITED STATES V. RODRIGUEZ
    60 miles per hour at an altitude of 500 feet. During one of the
    orbits, a green laser hit the cockpit, creating a “big flare” and
    “light[ing] up the entire cockpit.” Schneider and Valdez
    continued orbiting in order to locate the laser. During that
    time, the cockpit was struck approximately five or six more
    times for around three to ten seconds each by a laser moving
    in a circular motion.
    Valdez described the intensity of the flashes as stronger
    than a camera flash, “brighter than the high beams of a car
    light by far,” and more like staring at the sun. Schneider
    analogized it to putting a “high-intensity flashlight up to your
    face and turning it on.” Although Valdez experienced
    disorientation and an “after-image” during and directly after
    the laser strike, he did not experience any lasting after-image
    or other physical injury as a result of the strikes. Neither did
    Schneider. Nevertheless, Valdez testified that the laser
    interfered with his duties because part of his job is to help the
    pilot locate and avoid hazards – such as radio towers, other
    aircraft, and birds – and he was unable to carry out this duty
    while the laser was hitting the cockpit. Schneider echoed
    those concerns, stating that being lased impedes a pilot’s
    ability to see his instruments inside the cabin and any hazards
    outside. He stated that the laser prevented him from scanning
    his instrument panels and looking out the left side of the
    aircraft to make sure he kept Valdez on position to spot the
    laser.
    Once Schneider and Valdez pinpointed the laser’s
    location, they directed ground units of the Clovis Police
    Department to that spot. When Officers Christopher Peters
    and Steve Cleaver arrived at the location to which Schneider
    and Valdez had directed them, they saw Rodriguez and his
    girlfriend Jennifer Coleman standing with several children
    UNITED STATES V. RODRIGUEZ                       7
    and adults outside their apartment. Rodriguez was holding a
    small cylindrical object in his hand. When Rodriguez saw the
    officers, he ran towards his apartment. Peters caught him,
    found the object in his pocket, took it out, and discovered it
    was a laser. The laser had the following label: “Avoid
    Exposure Laser / Light is Emitted from this Aperture /
    Danger / Laser Radiation / Avoid Direct Eye Exposure / Max
    Output Power < 5 milliwatts / . . . This product complies with
    21 C.F.R. / Made in China.” Cleaver arrested Rodriguez.
    At that point, Coleman told the officers they should
    release Rodriguez because “she was the one who had the laser
    and she was the one who was pointing it into the sky.”
    Cleaver separated Coleman from Rodriguez and she repeated
    that “she was the one who was pointing [the laser] into the
    sky . . . and that it wasn’t her fault that the helicopter flew in
    front of the laser.” Cleaver then arrested Coleman. At that
    point, Rodriguez “told [Cleaver] that [he] needed to release
    Ms. Coleman because he [Rodriguez] was the one that was
    shining the laser at the helicopter.”
    Cleaver put Rodriguez and Coleman in the back of his
    patrol vehicle. He then heard Rodriguez tell Coleman “not to
    say anything else and that if she just told the Court that she
    was just shining it into the sky, that they would only give her
    a ticket.” Both Rodriguez and Coleman admitted to Cleaver
    that they “s[aw] the laser reflecting off the helicopter.”
    Following Rodriguez’s and Coleman’s arrest, the FBI
    took over the case. A few weeks later, Coleman called
    Special Agent Chet Johnston – who was in charge of the
    investigation – to inquire about the return of property the
    police had taken the night of her arrest. She and Rodriguez
    had each received a letter from the Federal Aviation
    8              UNITED STATES V. RODRIGUEZ
    Authority stating that the agency had determined the couple
    had not broken any rules and that the matter was closed. She
    believed the FBI investigation was closed as well. Johnston
    told her the FAA was a separate entity and had no bearing on
    the FBI’s criminal investigation.
    During the ensuing conversation, Coleman told Johnston
    that on the night in question, she had pointed the laser at the
    sky multiple times to try to figure out how far the beam
    would reach. While she pointed it at a tree, it may have
    struck a helicopter a few times. She said she had been aware
    there was a police helicopter in the area that night. She also
    stated that she had allowed her children to play with the laser,
    instructing them not to point it into anyone’s apartment and
    to only point it into the sky. She apologized to Johnston and
    said it was “a stupid thing to do.” The next day, Johnston met
    Coleman and Rodriguez at their home. During their
    conversation, Rodriguez told Johnston that on the night in
    question, “he pointed the laser at a helicopter. He was aware
    he struck it approximately four times. He said that he could
    see and also hear the helicopter as it flew behind a tree, which
    he was aiming for.”
    Ultimately, Rodriguez and Coleman were charged with
    conspiracy to interfere with the safe operation of an aircraft
    with reckless disregard for human life, 18 U.S.C. § 32(a)(5),
    (a)(8), two counts of attempting to interfere with the safe
    operation of an aircraft with reckless disregard for human
    life, 18 U.S.C. § 32(a)(5), (a)(8), and two counts of aiming a
    laser pointer at an aircraft, 18 U.S.C. § 39A. At trial,
    government expert Joshua Hadler, Chief Laser Safety Officer
    at the National Institute of Standards and Technology,
    testified that federal regulations prohibit the sale of lasers
    stronger than five milliwatts. Both he and defense expert
    UNITED STATES V. RODRIGUEZ                    9
    Samuel Goldwasser testified that they tested the laser
    Rodriguez and Coleman had used and found that it had
    approximately 65 milliwatts of power. Hadler testified that
    a laser with that much power could cause after-image, flash
    blindness, glare, and distraction, and could cause permanent
    injury to the eye up to around 180 feet. He testified that in
    order to illuminate the cockpit of a helicopter, a laser beam
    would have to intersect the cockpit window. He also
    estimated, based on the laser’s power and the altitude of the
    helicopters, that the laser beam would have had a diameter of
    three feet when it hit a helicopter at Air-1’s elevation on the
    night of August 25, 2012, and about eleven feet when it hit
    Air George.
    Both Hadler and Goldwasser testified that it would be
    impossible for even an experienced laser professional to tell
    the laser was so powerful merely by observing it because
    “[t]he human eye does not respond very well to measurement
    of optical power.” Hadler testified that about 90 percent of
    green lasers purchased in the United States are not in
    compliance with federal regulations because they emit a
    stronger beam than is allowed. He also testified that the
    general public lacks awareness of that fact. Government
    expert Leon McLin, Senior Research Optometrist and Vision
    Scientist at the Air Force Research Laboratory, testified it
    would take someone with a steady hand to be able to use a
    laser to track an aircraft 500 feet up.
    Rodriguez did not testify at trial, but Coleman did. She
    testified that she purchased the laser on Amazon.com for
    around $7.00 as a toy for her children. She said that as a
    child, she had played with lasers she bought from ice cream
    trucks. She said that on the night of August 25, 2012, the
    couple’s two young daughters were playing with the laser,
    10             UNITED STATES V. RODRIGUEZ
    shining it on the grass, the parking lot, and into other people’s
    apartments. This stopped when two neighbors came out and
    asked them not to shine the laser into their homes. Coleman
    put the girls to bed. When she came out of the girls’ bedroom
    about five or six minutes later, she saw a helicopter spotlight
    outside her apartment, and then saw Officer Cleaver arrest
    Rodriguez.
    Coleman claimed that she did not know the laser beam
    could reach a helicopter a mile or even a quarter mile away
    and did not know that pointing the laser at a helicopter could
    cause unsafe conditions for pilots because it could be
    dangerous to their eyes. She said she did not know it was
    against the law for someone to aim a laser at a helicopter.
    She said she had not read the entire warning label, but
    acknowledged that she saw it and that she knew the laser was
    very bright, in part because neighbors had complained about
    it. She acknowledged she told her children not to point it at
    anyone’s eyes because she knew it could be dangerous. She
    stated, however, that she did not know the laser was “going-
    to-kill-you-dangerous, because they sell [lasers] to kids on the
    ice cream[] [truck, so] how dangerous can [they be]?”
    At the end of the government’s case and following the
    close of the defense case, Coleman and Rodriguez moved for
    judgments of acquittal under Federal Rule of Criminal
    Procedure 29. They argued that there was insufficient
    evidence they willfully attempted to interfere with the pilots’
    operation of the helicopters with reckless disregard for human
    safety. The court denied the motions.
    The jury found both Rodriguez and Coleman guilty of
    violating § 39A for aiming a laser pointer at Air-1, and
    Rodriguez, alone, guilty of violating § 32(a)(5), (a)(8), for
    UNITED STATES V. RODRIGUEZ                    11
    willfully attempting to interfere with the safe operations of
    Air-1 in reckless disregard for human safety. It acquitted
    them on all other counts.
    On March 10, 2014, the district court sentenced
    Rodriguez. Because Rodriguez’s two convictions arose from
    the same conduct, the court grouped them together. See
    U.S.S.G. §§ 3D1.1–3D1.3. After finding the intentional
    endangerment enhancement of U.S.S.G. § 2A5.2(a)(1)
    applied, the court sentenced Rodriguez to 168 months on his
    § 32(a)(5), (a)(8) conviction. The court also imposed a
    concurrent term of 60 months, the statutory maximum, for the
    § 39A conviction. Thus, the total sentence was fourteen years
    in prison.
    Rodriguez appeals his conviction for § 32(a)(5), (a)(8),
    arguing that the government failed to prove he acted with the
    requisite mens rea and that we must remand for resentencing
    on his § 39A conviction because that sentence resulted from
    his § 32(a)(5), (a)(8) conviction and sentence.
    II. JURISDICTION AND STANDARD OF REVIEW
    We have jurisdiction over this appeal under 28 U.S.C.
    § 1291. We review the district court’s ruling on a defendant’s
    motion for judgment of acquittal de novo. United States v.
    Mendoza, 
    244 F.3d 1037
    , 1042 (9th Cir. 2001). Evidence
    offered to support a conviction is sufficient if, when “viewed
    in a light most favorable to the prosecution, any rational trier
    of fact could have found the essential elements of the crime
    beyond a reasonable doubt.” United States v. Odom,
    
    329 F.3d 1032
    , 1034 (9th Cir. 2003); see also Jackson v.
    Virginia, 
    443 U.S. 307
    , 320 (1979). “[E]vidence is
    insufficient to support a verdict where mere speculation,
    12               UNITED STATES V. RODRIGUEZ
    rather than reasonable inference, supports the government’s
    case.” United States v. Nevils, 
    598 F.3d 1158
    , 1167 (9th Cir.
    2010) (en banc). “[A] ‘reasonable’ inference is one that is
    supported by a chain of logic.” Juan H. v. Allen, 
    408 F.3d 1262
    , 1277 (9th Cir. 2005).
    III.      DISCUSSION
    A. The Essential Elements of § 32(a)(5), (a)(8)
    Before assessing whether the government presented
    sufficient evidence to allow a rational factfinder to find
    Rodriguez guilty of violating § 32(a)(5), (a)(8), we must first
    identify the essential elements of that statute. Section
    32(a)(5) prohibits “willfully . . . interfer[ing] with or
    disabl[ing], with intent to endanger the safety of any person
    or with a reckless disregard for the safety of human life,
    anyone engaged in the authorized operation of [an] aircraft or
    any air navigation facility aiding in the navigation of an[] [ ]
    aircraft.” 18 U.S.C. § 32(a)(5). The aircraft must be “in the
    special aircraft jurisdiction of the United States or [be] any
    civil aircraft used, operated, or employed in interstate,
    overseas, or foreign air commerce.” 18 U.S.C. § 32(a)(1).
    Section 32(a)(8) prohibits attempting to violate § 32(a)(5).
    18 U.S.C. § 32(a)(8) (penalizing those who “willfully . . .
    attempt[] or conspire[] to do anything prohibited under
    paragraphs (1) through (7) of this subsection”).
    As the district court properly recognized in its jury
    instructions, § 32(a)(5), (a)(8) requires proof that 1) the
    defendant willfully attempted to interfere with or disable a
    person engaged in the authorized operation of an aircraft or
    any air navigation facility aiding in the navigation of an
    aircraft; 2) the defendant intended to endanger the safety of
    UNITED STATES V. RODRIGUEZ                  13
    a person or acted with a reckless disregard for the safety of
    human life; 3) the aircraft was in the special jurisdiction of
    the United States or was a civil aircraft used, operated, or
    employed in interstate commerce; and 4) the defendant took
    a substantial step toward committing the crime. See United
    States v. Meek, 
    366 F.3d 705
    , 720 (9th Cir. 2004) (“[A]n
    attempt conviction requires evidence that a defendant
    intended to violate the statute and took a substantial step
    toward completing the violation.” (internal citation and
    quotation marks omitted)).
    As the district court also properly recognized in its
    instructions, an act is done willfully if a defendant
    intentionally acted with knowledge that his or her conduct
    was unlawful. See, e.g., Bryan v. United States, 
    524 U.S. 184
    , 191–92 (1998) (citing Ratzlaf v. United States, 
    510 U.S. 135
    , 137 (1994)).
    A reckless disregard for the safety of human life has both
    a subjective and an objective component. First, the defendant
    must be aware of the risk his conduct created (here, that the
    laser had the ability to blind or distract a pilot enough to
    cause a crash). United States v. Trinidad-Aquino, 
    259 F.3d 1140
    , 1145–46 (9th Cir. 2001); United States v. Albers,
    
    226 F.3d 989
    , 994–95 (9th Cir. 2000), cert. denied, 
    531 U.S. 1114
    (2001). As the Supreme Court recognized in Farmer v.
    Brennan, “[t]he criminal law[] [ ] generally permits a finding
    of recklessness only when a person disregards a risk of harm
    of which he is aware.” 
    511 U.S. 825
    , 836–37 (1994).
    Second, the risk must be “‘of such a nature and degree
    that, considering the nature and purpose of the actor’s
    conduct and the circumstances known to him, its disregard
    involves a gross deviation from the standard of conduct that
    14             UNITED STATES V. RODRIGUEZ
    a law-abiding person would observe in the actor’s situation.’”
    
    Albers, 226 F.3d at 995
    (quoting Model Penal Code
    § 2.02(2)(c) (1985)). To put it succinctly, a defendant acts
    recklessly when he “deliberately disregard[s] a substantial
    and unjustifiable risk . . . of which [he is] aware.” 
    Id. Having identified
    the essential elements of a § 32(a)(5),
    (a)(8) conviction, we next consider whether the government
    adduced sufficient evidence to allow a rational trier of fact to
    conclude that Rodriguez acted with the requisite mens rea.
    B. The Government’s Evidence
    Rodriguez does not dispute that the government adduced
    sufficient evidence that he intentionally pointed the laser at
    Air-1. Indeed, he admitted as much to both Officer Cleaver
    and Special Agent Johnston and he does not appeal his § 39A
    conviction. He argues, however, that the government did not
    adduce any evidence that would allow a rational factfinder to
    conclude either that he was willfully attempting to interfere
    with the pilot’s operation of Air-1 or that he acted in reckless
    disregard for the safety of human life. The government
    contends that the evidence that Rodriguez intentionally and
    repeatedly targeted the cockpit of Air-1, with a light he knew
    to be dangerously bright is sufficient to allow a rational
    factfinder to find Rodriguez guilty of violating § 32(a)(5),
    (a)(8). The government argues that this evidence allows for
    the rational inference that Rodriguez knew the risk posed to
    the aircraft by the laser and therefore the finding that
    Rodriguez both acted with reckless disregard for the safety of
    human life and must have intended to interfere with the
    pilot’s operation of the aircraft. The main problem with the
    Government’s argument is Gardenhire, which was decided
    UNITED STATES V. RODRIGUEZ                    15
    on April 30, 2015, a little over a year after Rodriguez was
    convicted.
    Gardenhire involved a defendant’s appeal of his sentence
    following his conviction for violating § 39A by intentionally
    lasing a Cessna jet and a police helicopter. Section 39A
    prohibits “knowingly aim[ing] the beam of a laser pointer at
    an aircraft in the special aircraft jurisdiction of the United
    States, or at the flight path of such an aircraft[.]” 18 U.S.C.
    § 39A(a). The district court found Gardenhire’s intentional
    conduct in lasing the aircraft showed he had acted recklessly.
    It applied the reckless endangerment enhancement of
    U.S.S.G. § 2A5.2(a)(2) to double Gardenhire’s base offense
    level. 
    Gardenhire, 784 F.3d at 1279
    –80. We reversed the
    sentence, holding that “the bare admission that Gardenhire
    intentionally aimed the laser [at an aircraft], knowing that it
    was dangerous to shine the laser in someone’s eyes, does not
    support the inference . . . that [Gardenhire] was aware of the
    dangers to the aircraft from doing so,” and therefore could not
    prove he had the subjective knowledge required for a finding
    of recklessness. 
    Id. at 1283.
    The facts the government adduced in Gardenhire are
    almost identical to the facts the government presented at
    Rodriguez’s trial. Gardenhire, like Rodriguez, admitted to
    the FBI that he intentionally tried to hit the aircraft with his
    laser beam. 
    Id. at 1280.
    The government claimed
    Gardenhire, like Rodriguez, knew his laser was powerful
    enough to reach the aircraft. 
    Id. Moreover, Gardenhire,
    like
    Rodriguez, knew the laser could be dangerous if shined
    directly into someone’s eyes: his friend had told him “‘not to
    shine the laser at anyone’s eyes because it would blind
    people.’” 
    Id. at 1281.
    We held that these facts were not clear
    and convincing evidence Gardenhire had acted recklessly,
    16             UNITED STATES V. RODRIGUEZ
    concluding that “[t]he record is devoid of evidence . . . that
    Gardenhire was aware of the risk created by his conduct.” 
    Id. at 1280.
    First, we reasoned, Gardenhire’s admission that he
    intentionally tried to hit the aircraft “does nothing to show
    that Gardenhire was aware that if he hit the jet, as intended,
    he could blind or distract the pilot.” 
    Id. Next, Gardenhire’s
    knowledge that the beam had hit the aircraft “at most [ ]
    evidences knowledge that he could succeed in striking the jet,
    not awareness of the consequences of the beam strike – the
    risk that the pilot could be blinded or distracted or the aircraft
    otherwise endangered.” 
    Id. at 1281
    (emphasis added).
    Finally, “knowing that a laser beam can cause blindness when
    pointed directly at a person’s eyes is very different than
    knowing that a laser beam can be distracting to pilots who are
    both enclosed in a cockpit and at least 2,640 feet away.” 
    Id. This is
    because the fact
    [t]hat one knows that the laser is dangerous
    when pointed directly in a person’s eyes does
    not mean that one knows about the beam’s
    ability to expand and refract, rendering it
    particularly hazardous for pilots in an aircraft
    miles away, or that the danger is heightened at
    nighttime because the pilot’s eyes have
    adjusted to the dark.
    
    Id. at 1282.
    We then examined other ways the government could have
    proven Gardenhire was aware of the risk created by his
    conduct. We looked to United States v. Naghani, 
    361 F.3d 1255
    , 1263 (9th Cir. 2004), and United States v. Gonzalez,
    UNITED STATES V. RODRIGUEZ                     17
    
    492 F.3d 1031
    , 1032 (9th Cir. 2007), in which we held the
    defendants’ intentional conduct alone, which caused chaos
    onboard their respective commercial flights, was sufficient to
    support a finding of reckless endangerment.                 We
    distinguished those cases, however, because Naghani’s and
    Gonzalez’s conduct obviously caused a risk of danger that
    was immediately apparent to them. It was therefore
    appropriate to find, based on the intentionality of their
    conduct and the immediate and visible effects of their
    behavior, that they were aware of the risk their conduct
    created. See 
    Gardenhire, 784 F.3d at 1282
    (“Naghani acted
    in very different circumstances, where the average person
    would be immediately aware of the consequences of his
    actions.”); 
    id. at 1283
    (“Gonzalez’s actions caused total chaos
    onboard, supporting the logical inference that he was
    subjectively aware of the risks of his threatening and violent
    conduct.” (internal quotation marks omitted)).
    The Gardenhire court held that, in contrast to Naghani
    and Gonzalez, it would be inappropriate to conclude merely
    from Gardenhire’s intentional conduct that he was aware of
    the risk his lasing of the aircraft created because lasers do not
    operate like normal beams of light. The risk created from the
    lasing was therefore not immediately apparent to Gardenhire.
    See 
    id. at 1283
    . As we explained,
    “the farther away [a laser beam] gets from the
    point of origin, the beam spreads out,” thus
    increasing its hazardousness, a notion that is
    counterintuitive, especially when one
    considers that an ordinary light beam would
    grow fainter. Additionally, the laser pointer is
    particularly hazardous to an aircraft when the
    18               UNITED STATES V. RODRIGUEZ
    beam is refracted off the cockpit glass, which
    intensifies the light even more[.]
    
    Id. at 1281
    (quoting pilot’s testimony).
    Because laser beams do not operate like regular beams of
    light, we held, it would be inappropriate to conclude that
    Gardenhire must have been aware of the risk created by
    shining a laser at an aircraft absent a showing that similarly
    situated defendants, or even average people, understand how
    laser beams operate. 
    Id. at 1283.
    We noted that, as in the
    present case, the government had not “submit[ted] any
    evidence of what even an average person would know about
    the effects of aiming a laser beam at an aircraft.” 
    Id. at 1281.
    For all of these reasons, we concluded, the government failed
    to show Gardenhire acted recklessly. Rather, in applying the
    reckless endangerment enhancement, “the district court [ ]
    made the unsupported leap from deliberate and intentional
    action to consciousness of risk.” 
    Id. Although Gardenhire
    is a sentencing case, its reasoning
    controls the outcome of Rodriguez’s appeal because the facts
    are almost identical and a finding of recklessness for purposes
    of the § 2A5.2(a)(2) enhancement, like a finding of
    recklessness for purposes of § 32(a)(5), requires proof that the
    defendant is “aware of the risk created by his conduct.”1 
    Id. at 1283.
    Moreover, as noted, Gardenhire did not simply find
    the evidence insufficient to prove the enhancement applied by
    clear and convincing evidence. Rather, it held that the record
    1
    We recognize that Gardenhire may be in tension with the First
    Circuit’s decision in United States v. Sasso, 
    695 F.3d 25
    , 30 (1st Cir.
    2012), but we are, of course, obliged to follow our own precedents.
    UNITED STATES V. RODRIGUEZ                    19
    was altogether “devoid of evidence.” 
    Id. at 1280
    (emphasis
    added).
    As in Gardenhire, the fact that Rodriguez intentionally
    shined the laser at the helicopter, although enough for a
    § 39A charge, is not, in and of itself, sufficient to allow a
    rational factfinder to conclude that Rodriguez acted with
    reckless disregard for the safety of human life. Also as in
    Gardenhire, the government adduced no evidence in
    Rodriguez’s trial showing that the risks posed by lasers are
    matters of common knowledge. Indeed, as the government’s
    own expert, Joshua Hadler, testified, it is impossible for even
    an experienced laser professional to tell a laser’s power
    merely by observing it. Hadler also testified that the general
    public is unaware that 90 percent of green lasers imported
    into the United States are stronger than allowed by federal
    regulations. For this reason, Rodriguez’s conduct cannot
    accurately be compared to that of someone who shines a
    bright spotlight through the windshield of passing cars: the
    effect of bright lights on automobile drivers at night is a
    matter of common knowledge.
    As the government points out, Rodriguez’s running from
    the police when they arrived at his apartment complex, hiding
    the laser in his pocket, and telling Coleman to say she was
    only flashing the laser at the sky evidences a consciousness
    of guilt. That’s true: he was guilty of the crime of aiming a
    laser at an aircraft and had every right to have a guilty
    conscience. But his evasive conduct sheds no light, so to
    speak, on whether he was trying to willfully interfere with the
    safe operation of the aircraft with a reckless disregard for the
    safety of human life, as opposed to less serious illegal
    conduct.
    20             UNITED STATES V. RODRIGUEZ
    C. Conclusion
    Congress created § 39A in 2011 precisely because it
    recognized that many people who point lasers at aircraft do
    not do so with the mens rea required for a § 32(a)(5)
    conviction. A House Report on the Securing Aircraft
    Cockpits Against Lasers Act of 2011, the act that created
    § 39A, stated that
    [s]ome perpetrators [of lasing aircraft] have
    been charged under 18 U.S.C. § 32, relating to
    the destruction of aircraft. However, this
    provision requires the government to prove
    willful interference and intent to endanger the
    pilots. While this burden may be easily
    established when a person attempts to
    detonate a bomb onboard an aircraft or
    attempts to overtake a member of the flight
    crew, it is difficult to establish this same type
    of intent for a laser incident, even if the effect
    is actually to endanger the pilots. This bill
    recognizes the obvious and inherent danger of
    aiming a laser at an aircraft under any
    circumstance, as long as the offender
    knowingly aims the laser at the aircraft. The
    penalty under section 32, 20 years, coupled
    with having to prove specific intent to
    interfere with, disable, or endanger the pilots,
    seems to be a factor in multiple declinations
    of prosecution under the current statute.
    H.R. Rep. No. 112-11, at 2 (2011) (emphasis added).
    UNITED STATES V. RODRIGUEZ                            21
    As is clear from this report, Congress created § 39A to
    cover situations in which an individual’s conduct causes
    unsafe flying conditions for pilots but prosecutors cannot
    prove whether that person was intentionally trying to take the
    aircraft down or whether they even understood the dangers
    lasers pose to aircraft. Rodriguez’s case presents a perfect
    example of such a situation. His conduct was dangerous and
    cannot be condoned. He deserves a § 39A conviction and a
    sentence that reflects the seriousness of his crime. However,
    his conviction for violating § 32(a)(5), (a)(8) must be vacated.
    We therefore remand for entry of a judgment of acquittal and
    we vacate his fourteen-year sentence. In light of Gardenhire,
    and because Rodriguez’s statutory-maximum sentence for his
    § 39A conviction was a result of the court’s calculation of his
    base offense level for § 32(a)(5), (a)(8), a conviction which
    we have now reversed, we also remand for resentencing on
    his § 39A conviction.
    REVERSED AND REMANDED.2
    2
    Rodriguez waived his argument that we should remand his case to a
    different district court judge by raising it for the first time in his reply
    brief.