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The Ninth Circuit On When The Guidelines Fail Us

Much in the same way that phrenology was an effort to catalog every mental deficit that humans can possess, the federal sentencing guidelines are an effort to catalog precisely how bad every kind of federal crime that can be committed is.

The comprehensiveness of the sentencing guidelines can be stunning. Section 2N3.1 sets out how bad odometer law violations are (not all that bad). Section 2T3.1 deals with customs taxes (as opposed to tobacco taxes in 2T2.1). Offenses involving fish, wildlife and plants are discussed, in detail, in section 2Q2.1. Willful violations of the Migrant and Seasonal Agricultural Worker Protection Act have their own section, 2H4.2.

You get the idea.

This makes the Ninth Circuit’s opinion in United States v. McEnry kind of an anomaly.

Mr. McEnry flew a plane without a license. This is a federal crime, prohibited by 49 U.S.C. § 46306(b)(7).

There is no guidelines section that deals directly with how bad it is to fly a plane without a license. (As a reflection on society, this is probably a good thing.)

Here are the basic facts, from the opinion:

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.

The things that were not relevant to this opinion, but were noted any way, are many. For example,

The cause of McEnry’s erratic behavior is disputed. The district court ultimately ruled that, regardless of the cause, McEnry was in a condition in which he should not have been flying, and neither party contends that the issue has any bearing on the selection of the guideline under which McEnry should have been sentenced.


There is some evidence that, subsequent to his arrest in this case, McEnry made false statements in his application for a pilot’s license. As with the cause of McEnry’s behavior, this evidence has no bearing on the question before the panel.


At sentencing, the government presented a variety of evidence suggesting that McEnry was involved in drug trafficking. Neither party argues that this evidence was relevant to the determination of the correct guideline. The district court determined that the drug trafficking-related evidence is “not any evidence” which “simply doesn’t approach preponderance, doesn’t even approach the sufficiency to draw an inference,” and concluded that it “d[id]n’t find any basis in fact or law to enhance the sentence based on the evidence that’s been received.” The government does not contest this finding. Accordingly, this evidence is not relevant to McEnry’s appeal.

In any event, the district court sentenced Mr. McEnry as though he had interfered with a flight crew in a commercial flight, thinking that this was the closest thing to the harms that Mr. McEnry caused in this case. The district court applied § 2A5.2(a)(2)(A).

Mr. McEnry, on the other hand, argued that this was closer to a fraud offense (something like by flying he was representing that he was licensed to fly when he was not – a performative utterance, or something along those lines), and that § 2B1.1 should be the relevant guideline.

The district court sentenced Mr. McEnry to 21 months in prison based on the interfering with a flight crew guideline.*

The Ninth Circuit reversed. The court of appeals held that in those rare cases where there’s no applicable sentencing guideline, a district court should apply the guideline closest to the elements of the offense. That’s not what the appellate court concluded the district court did,

In concluding that § 2A5.2 was the appropriate guideline to apply to McEnry’s offense, the district court remarked that § 2A5.2 “isn’t directly applicable for the offense, which is operating without the airman’s certificate.” Explaining its choice, it noted that § 2A5.2 “does, if you will, raise or track some of the kinds of risks that are raised.” Thus, the district court based its choice not on the elements of the offense or the facts alleged in the indictment, but on the defendant’s particular relevant conduct and the risk it created.

The Ninth Circuit determined that Mr. McEnry’s offense is really closest to a fraud crime, and his case was sent back for resentencing.

* This makes me think that it isn’t entirely credible that the sentencing court ignored all the facts that it was supposed to.

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