United States v. Dodge
Opinion of the Court
MEMORANDUM
Zachariah Dodge became intoxicated on an aircraft en route to Hawaii and caused a disturbance involving several crew members.
The government filed a motion for upward departure based on Dodge’s prior history and on three victim related factors. The district court rejected the victim related factors as reasons for upward departure, but adjusted the sentence upwards based on a number of other factors includ
We review sentences for reasonableness. United States v. Booker, 543 U.S. 220, 260-61, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, “after Booker we continue to review the district court’s interpretation of the Sentencing Guidelines de novo, the district court’s application of the Sentencing Guidelines to the facts of [a] case for abuse of discretion, and the district court’s factual findings for clear error.” United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006) (internal quotation marks omitted).
Dodge argues that he was not given notice under Federal Rule of Criminal Procedure 32(h) that endangering the passengers on the aircraft would be a basis for upward departure from the sentencing guidelines.
Dodge also argues that the district court improperly applied the Sentencing Guidelines. The district court adopted the PSR’s base offense level of 9, as per Guideline § 2A5.2(a)(4), minus a two level reduction for acceptance of responsibility.
To the extent that Dodge’s sentence was based on concerns that his actions endangered the aircraft, the proper starting point was level 18 pursuant to Guideline § 2A5.2(a)(2). Our precedent states that “[i]f there was material error in the Guidelines calculation that serves as the starting point for the district court’s sentencing
We need not decide now whether the harmless error rule applies to miscalculating the base offense, because even if miscalculating the starting point may sometimes be harmless, it was not harmless here.
Having determined that the sentence must be vacated because the starting point under the Guidelines was incorrect, we decline to address the other arguments raised by Dodge in his appeal. Dodge is free to raise these issues in the district court if they remain relevant on remand. On remand, Dodge and the government also remain free to argue, respectively, for a sentence that is higher or lower than the Guideline range established in § 2A5.2(a)(2).
The sentence is VACATED and the case is REMANDED for further proceedings consistent with this disposition.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Because the facts are known to the parties we do not discuss the details.
. 49 U.S.C. § 46504 provides:
An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, or attempts or conspires to do such an act, shall be fined under title 18, imprisoned for not more than 20 years, or both. However, if a dangerous weapon is used in assaulting or intimidating the member or attendant, the individual shall be imprisoned for any term of years or for life.
. Federal Rule of Criminal Procedure 32(h) provides:
Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.
. Guideline § 2A5.2 covers "Interference with a Flight Crew Member or Flight Attendant.” The base offense level is:
(1) 30, if the offense involved intentional endangering of the safety of:
(A) an airport or aircraft; ...
(2) 18, if the offense involved recklessly endangering of the safety of:
(A) an airport or aircraft; ...
(3) if an assault occurred, the offense level from the most analogous assault guideline §§ 2A2.1-2A2.4; or
(4) 9.
(Emphasis in original.)
. In Cantrell, we noted in passing: "If we determine that the sentence resulted from an incorrect application of the Sentencing Guidelines, and further that the error in application was not harmless, we will remand to the district court for further sentencing proceedings. ...” 433 F.3d at 1279.
. Dodge has asked this court to "take judicial notice of other cases that involved the offense of interference with a flight crew in which the defendant received a substantially lower sentence for conduct that was more egregious th[a]n what Dodge did in this case.” Because we are remanding without determining the overall reasonableness of the sentence this request is denied as moot.
Reference
- Full Case Name
- United States v. Zachariah DODGE
- Status
- Published