PASADENA, Calif. (CN) — A California man will have to spend five years in federal prison for pointing a powerful laser at helicopters, after the Ninth Circuit affirmed his sentence.
Sergio Patrick Rodriguez, now 28, of Clovis, was sentenced at trial to 14 years in prison, but the Ninth Circuit reduced that to 5 years in June 2015. On Oct. 17 it upheld the 5-year sentence.
Rodriguez showed off his laser pointer to his girlfriend and her children in 2012. Federal prosecutors said the pointer was 13 times more powerful than a legal handheld laser, and that Rodriguez shined it into the cockpit of a medical transport helicopter 1,100 feet in the air, and into police helicopters.
A federal jury in December convicted Rodriguez of aiming a laser pointer at an aircraft and another count of intentionally aiming a laser pointer at an aircraft to try to interfere with its safe flight. He was sentenced to 5 years on the first charge and 14 years on the other one.
The Ninth Circuit overturned the 14-year sentence on appeal, finding insufficient evidence that Rodriguez wanted to bring down the helicopter or understood how dangerous his actions were.
"Rather, the evidence showed that he was attempting to see how far his laser would go at night - a stupid thing to do, yes, but there is no evidence that he was trying to interfere with the pilot," Ninth Circuit Judge Barry Silverman wrote for the three-judge panel in June 2105.
But Silverman added that the conviction for pointing the laser at a helicopter in flight "is designed for knuckleheads like him."
That panel Circuit remanded the other conviction for resentencing, even though Rodriguez did not appeal it. The district court resentenced him to 5 years and Rodriguez appealed. This time he lost.
In its unpublished, unanimous opinion, the panel found the sentence reasonable based on a number of aggravating circumstances, even though the advisory guidelines call for a sentence of 21 to 27 months.
"[T]he district judge reasonably found that Rodriguez's offense involved 'a dangerous, dangerous circumstance,'" the panel wrote. "[A]iming the laser pointer at the helicopter just once would have been sufficient for a § 39A offense [...] but Rodriguez increased the dangerousness of the offense by striking the helicopter six or seven times."
Other aggravating factors included Rodriguez's involving minor children and having a criminal history, including gang involvement. He was on probation when he committed his crime.
Rodriguez argued that his sentence is unreasonable compared to sentences given to other section 39A violators, including his girlfriend. Jennifer Coleman, now 25, was sentenced in 2014 to 2 years in prison. She was tried with Rodriguez.
Coleman's sentence was revoked and she got five years' probation instead.
The Ninth Circuit, however, ruled that Rodriguez failed to identify any other offender who had struck an aircraft so many times or who had so extensive a criminal history. And the facts suggest Rodriguez was more culpable than his girlfriend.
"The court reasonably concluded that Rodriguez's co-defendant, who was his co-habitant, was dominated by Rodriguez, so that her circumstances were distinguishable," the three-judge panel wrote.
"Obviously, I didn't agree with the sentence. It's really difficult to challenge a sentence," said Carolyn Phillips, Rodriguez's attorney. "Disappointing, but I think ultimately the original appeal was the happy moment in this case."
U.S. Attorney Karen Escobar called the ruling "a substantively reasonable decision," adding, "[The opinion] gave adequate rationale for why the court was affirming the defendant's sentence."
The panel that affirmed the 5-year sentence consisted of Ninth Circuit Judges Susan Graber and Mary Murguia and Senior District Judge Mark Bennett, from the Northern District of Iowa, sitting by designation.
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