A three-judge panel in the Ninth Circus vacated a sentence imposed for knowingly aiming the beam of a laser pointer at an aircraft. In calculating the base offense level, the district court enhanced that level, pursuant to USSG § 2A5.2(a)(2)(A), after finding the conduct rose to the level of “reckless endangerment.” The panel noted that the government’s burden of establishing this enhancement was to produce “clear and convincing evidence” and the record was devoid of any evidence that the defendant was aware of the risk he created.

The panel took the rare step of taking the case away from the original sentencing judge and ordered its reassignment after finding the district court’s statements, made at the sentencing hearing, illustrated its commitment to the idea that, regardless of the evidence presented, the defendant’s conduct was reckless, and that it would likely impose the same sentence on remand.