- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Law
- Date Filed: 10-13-2011
- Case #: 10-10433
- Judge(s)/Court Below: Circuit Judge Tashima for the Court; Circuit Judge Rawlinson and Senior District Judge Terry Hatter
- Full Text Opinion
McEnry plead guilty to serving as an airman without an airman’s certificate. In 2009, he overshot his landing and failed to communicate with the airport radio tower. Upon entering the air terminal, someone called 911 because it was suspected McEnry was under the influence while flying. Upon plea, the government reserved its right to present evidence regarding controlled substances. McEnry was sentenced using a Base Offense Level of 18. He was given a downward departure of three points. The lower court indicated that the Sentencing Guidelines section it applied to McEnry was “not that suitable and not that analogous really, [it was] the only guideline that is particularly close in terms of conduct.” McEnry appealed the sentence. The Ninth Circuit held that the district court erred in using the Guidelines section McEnry took issue with. Instead of § 2A5.2, the section the district court applied, the Court found § 2B1.1 to be the correct Guideline section based on analogy and its similarity in conduct. VACATED AND REMANDED.