Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, Senior District Judge, Presiding D.C. No. 1:09-cr-048
The opinion of the court was delivered by: Tashima, Circuit Judge:
Argued and Submitted July 22, 2011-San Francisco, California
Before: A. Wallace Tashima and Johnnie B. Rawlinson, Circuit Judges, and Terry J. Hatter, Senior District Judge.*fn1
Michael McEnry ("McEnry") was convicted, on a plea of guilty, of serving as an airman without an airman's certificate, in violation of 49 U.S.C. § 46306(b)(7). He appeals from his sentence on the ground that the district court procedurally erred by sentencing him pursuant to U.S.S.G. § 2A5.2, rather than U.S.S.G. § 2B1.1. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we vacate the sentence and remand for resentencing.
On January 5, 2009, McEnry landed a Cessna 210F aircraft at the Eastern Sierra Regional Airport in Bishop, California. The circumstances of his landing were unusual: he did not communicate with the airport by radio during his approach and landing, and he touched down significantly farther along the runway than would be the case on a normal landing. When the plane did land, it overran the runway. McEnry's behavior on getting out of the plane was also unusual. He tied the plane down at its two wings, but neglected to tie down the tail, as one would normally do. He did not walk purposefully toward the terminal, but wandered about before approaching it. On arriving at the terminal, he asked where he was and claimed that he had flown through military airspace, during which time military aircraft flew alongside him and fired flares. Someone at the airport called the police, reporting that McEnry might have been under the influence while flying.*fn2
At the time McEnry landed, another aircraft had been scheduled to take off, but the pilot delayed his launch because he saw McEnry's plane coming in before he began his take-off. On investigating McEnry, the Federal Aviation Administration ("FAA") determined that he had no airman's certificate, i.e., a pilot's license. He had been issued a student pilot's certificate in 1986, which expired 24 months after its issuance.*fn3 The FAA also determined that the aircraft had not had a required annual inspection since October 2004 and had a number of mechanical problems, leading it to conclude that the plane should not be flown. Before the plane was ultimately flown out of Eastern Sierra Regional Airport, the FAA required "some bare minimum" maintenance that gave the FAA agent "some comfort in saying . . . you're okay to take this one-time flight to a place where all the rest of the repairs could be done." An FAA agent testified that "there was a lot that needed to be done" to make McEnry's plane airworthy.
McEnry was charged with violating 49 U.S.C. §§ 46306(b)(7), which prohibits knowingly and willfully serving or attempting to serve as an airman without an airman's certificate authorizing such service,*fn4 and 46306(c)(2), which provides for a higher statutory maximum if the violation is related to transporting a controlled substance by aircraft or aiding or facilitating certain controlled substance violations. He pled guilty, without a plea agreement, to violating § 46306(b)(7) after the government agreed to move to dismiss the § 46306(c)(2) charge; however, the government reserved its right to present its evidence with regard to controlled substances at sentencing.*fn5
No sentencing guideline expressly applies to McEnry's crime of conviction. 49 U.S.C. § 46306(b); U.S.S.G. App'x A. Accordingly, the guidelines specify that the district court must "apply the most analogous offense guideline" or, "[i]f there is not a sufficiently analogous guideline," sentence the defendant pursuant to 18 U.S.C. § 3553. U.S.S.G. § 2X5.1. The Probation Officer recommended that the court apply § 2A5.2(a)(2)(A), the guideline for interference with a flight crew member or interference with the dispatch, navigation, operation, or maintenance of a mass transportation vehicle, where the offense involved recklessly endangering the safety of an airport or aircraft. Under this guideline, McEnry's Base Offense Level was 18. The government argued that this was the correct guideline, because the offense involved recklessly endangering the safety of an aircraft. McEnry contended that "[i]t is questionable whether any guideline is sufficiently analogous," and argued that four other guidelines, including § 2B1.1(b)(13), were more analogous to his offense. Section 2B1.1 provides for a Base Offense Level of 6. Section 2B1.1(b)(13) establishes an enhancement for reckless risk of death or serious bodily injury; this enhancement would raise McEnry's Offense Level to 14.
Following an evidentiary hearing, the court concluded that although § 2A5.2(a)(2) was "not that suitable and not that analogous really, [it was] the only guideline that is particularly close in terms of conduct." The court gave McEnry a three-point downward adjustment for acceptance of responsibility and found him to be in Criminal History Category I. Determining that "given . . . the overall totality of the circum- stances . . . a sentence in the middle of the guidelines ...