United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendant's
Objections to the Presentence Investigation Report, filed
August 6, 2018 (Doc. 30)(“Objections”). The
primary issues are: (i) whether the Defendant Nicholas Baca
“recklessly endanger[ed] the safety of the aircraft,
” warranting a base offense level of 18 under U.S.S.G.
§ 2A5.2(a)(2), see Presentence Investigation
Report ¶ 8, at 4, filed July 26, 2018 (Doc.
28)(“PSR”), when Baca intentionally pointed a
laser pointer at a police helicopter, temporarily blinding
the pilot, but there is no evidence that Baca was aware of
the risks of his conduct; and (ii) whether the Court should
apply a 6-level enhancement under U.S.S.G. §
2A5.2(b)(1)(B)(ii) for use of a dangerous weapon,
see PSR ¶ 14, at 4, when Baca used a laser
pointer in the commission of the underlying offense, but
there is no evidence that Baca used the laser pointer in any
way not contemplated by the underlying offense. The Court
concludes that: (i) the PSR's base-offense-level
calculation is inaccurate, because there is no evidence on
the record that Baca was aware of the risks of his conduct,
as is required for a finding of recklessness, and, thus, the
Court sustains Baca's Objection to that calculation and
concludes that the appropriate base offense level is 9,
pursuant to § 2A5.2(a)(4); and (ii) the 6-level
enhancement under U.S.S.G. § 2A5.2(b)(1)(B)(ii) does not
apply, because § 2A5.2(b)(1) only applies if “(A)
subsection (a)(1) or (a)(2) applies; and . . . (ii) a
dangerous weapon was otherwise used.” Because the Court
determines that Baca's base offense level, pursuant to
§ 2A5.2(a)(4), is 9, § 2A5.2(b)(1) does not apply,
and there should be no increase for a dangerous weapon.
Accordingly, the Court sustains both of Baca's
Plea Hearing, held before the Honorable Steven C. Yarbrough,
United States Magistrate Judge for the District of New
Mexico, Baca pled guilty to the Indictment. See
Clerk's Minutes at 1, filed May 8, 2018 (Doc.
26)(“Plea Hearing Minutes”). The Indictment
charges that Baca “knowingly aimed the beam of a laser
pointer at an aircraft in the special aircraft jurisdiction
of the United States and at the flight path of such an
aircraft” in violation of 18 U.S.C. § 39A(a).
Indictment, filed September 6, 2017 (Doc. 1). There is a plea
agreement in this case. See Plea Agreement, filed
October 12, 2018 (Doc. 42).
Court takes the facts from the PSR. No. one has objected to
the PSR's recitation of the facts, so unless someone
objects or wants an evidentiary hearing to present more
facts, they will serve as the Court's findings of fact
for purposes of this sentencing. The PSR describes the
offense conduct as follows:
6. On July 29, 2017, the defendant pointed a handheld laser
at [Bernalillo County Sheriff's Office
(“BCSO”)]'s helicopter in flight. The laser
hit the pilot's eyes, temporarily blinding the pilot. The
pilot was able to regain focus. The helicopter was hit again
with the laser. The defendant fled the area in his vehicle
and was followed by the helicopter. Another officer located
the defendant and attempted a traffic stop of the defendant,
but he failed to stop. The defendant increased his speed and
turned his headlights off. He failed to yield at two stop
signs. The officer lost sight of the defendant, but the
helicopter continued to follow him. The defendant drove
through a residential neighborhood in circles. He stopped at
a drainage ditch and walked north.
7. The defendant then jumped over a wall and stayed in a yard
for a short period. He attempted to go to the front of the
residence, but an officer arrived to the location and
arrested him. The laser was located in the defendant's
vehicle. Next to the laser was a small piece of plastic
containing heroin (less than one gram).
PSR ¶¶ 6-7, at 3.
September 6, 2017, a federal grand jury charged Baca with one
count of aiming a laser pointer at an aircraft, in violation
of 18 U.S.C. § 39(a). See Indictment at 1. On
May 8, 2018, Baca pled guilty to the Indictment that he
knowingly aimed the beam of a laser pointer at an aircraft.
See Plea Hearing Minutes at 1; Indictment at 1. In
the Indictment, he specifically pled to the following facts:
On or about July 29, 2017, in Bernalillo County, in the
District of New Mexico, the defendant, NICHOLAS BACA,
knowingly aimed the beam of a laser pointer at an aircraft in
the special aircraft jurisdiction of the United States and at
the flight path of such aircraft. In violation [of] 18 U.S.C.
at 1. In the Plea Agreement he specifically admitted the
following facts under penalty of perjury:
a. On or about July 29, 2017, in Bernalillo County, in the
District of New Mexico, I knowingly aimed the beam of a laser
pointer at an aircraft in the special aircraft jurisdiction
of the United States and at the flight path of such aircraft.
Specifically, I pointed a laser pointer at a helicopter which
I later learned was operated by the Bernalillo County
b. It was not my intent in aiming the laser pointer at the
helicopter to cause harm. I was under the influence of
narcotics at the time and was bored, and, while I was aware
of what I was doing, I did not know that I could hurt anyone
by pointing the laser pointer at the helicopter.
Plea Agreement ¶ 8, at 4.
PSR, the United States Probation Office (“USPO”)
calculated Baca's base offense level at 18, pursuant to
U.S.S.G. § 2A5.2(a)(2) and applied a 6-level enhancement
under U.S.S.G. § 2A5.2(b)(1)(B)(ii) for use of a
dangerous weapon. Baca objects to the PSR's finding that
he recklessly endangered the aircraft and contends that the
applicable base level offense is 9 and not 18. See
Objections at 4. Baca also objects to paragraph 14 of the PSR
and the application of a 6-level enhancement for the use of a
dangerous weapon, contending that applying the enhancement
would constitute impermissible double counting, because
Baca's use of the laser pointer is already factored into
the base offense level calculation. See Objections
at 4-5. Baca further contends that, because the appropriate
base offense level is 9, subsection (b) of § 2A5.2 does
not apply. See Objections at 5. Assistant United
States Attorney George Kraehe concurs in Baca's
objections. See Objections at 5. The Court will
further describe these Objections, with USPO's response,
in its analysis.
LAW REGARDING THE GUIDELINES
United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court of the United States of America severed the
mandatory provisions from the Sentencing Reform Act, Pub. L.
No. 98-473, 98 Stat. 1976, thus making Guidelines sentencing
ranges effectively advisory. In excising the two sections,
the Supreme Court left the remainder of the Sentencing Reform
Act intact, including 18 U.S.C. § 3553: “Section
3553(a) remains in effect, and sets forth numerous factors
that guide sentencing. Those factors in turn will guide
appellate courts, as they have in the past, in determining
whether a sentence is unreasonable.” United States
v. Booker, 543 U.S. at 261.
has directed sentencing courts to impose a sentence
“sufficient, but not greater than necessary” to
comply with four statutorily defined purposes enumerated in
18 U.S.C. § 3553(a)(2):
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner . . . .
18 U.S.C. § 3553(a)(2)(A)-(D).
[A] defendant who has been found guilty of an offense
described in any Federal statute . . . shall be sentenced in
accordance with the provisions of this chapter so as to
achieve the purposes set forth in subparagraphs (A) through
(D) of section 3553(a)(2) to the extent that ...