United States v. Gonzalez

492 F.3d 1031, 2007 U.S. App. LEXIS 15832, 2007 WL 1892863

Opinions

McKEOWN, Circuit Judge:

Southwest Airlines Flight 2466, bound for Ontario, California, from Las Vegas, Nevada, had an uneventful takeoff. Before long, the cabin was in total chaos. Passenger Salvador Gonzalez became hysterical, demanded that the plane land, made statements about a bomb and, according to a flight attendant, said, “I’m blowing the plane up.” The crew and passengers tried to subdue him. He eventually was handcuffed and the plane was diverted back to Las Vegas.

Gonzalez pled guilty to interference with a flight crew member in violation of 49 U.S.C. § 46504. He appeals the district court’s decision to impose a nine-level sentencing enhancement for reckless endangerment of the aircraft under the advisory United States Sentencing Guidelines (“Guidelines”). We are unpersuaded by Gonzalez’s argument that the enhancement is inapplicable. His conduct was a threat not only to crew and passengers but to the aircraft.

BACKGROUND

Shortly after take-off, Gonzalez, who was seated in the last row of the airplane, stood up, complained of heart problems, and requested oxygen from a flight attendant. Flight attendant Patrick Poulin informed Gonzalez that the captain would be notified and oxygen would be made available, but Gonzalez refused to sit down and walked up the aisle, demanding that the plane land.

Just as Poulin was retrieving an oxygen tank, flight attendant Nancy Castillo noticed Gonzalez in the aisle and thought he might need medical attention. As she approached, Gonzalez said that he was having a heart attack. Castillo tried to calm him down, but Gonzalez continued toward the front of the plane, claiming that he needed a forward seat and asking that the plane, which had just taken off, land.

Gonzalez became increasingly agitated, saying: “We have to get on the ground. We need to land. I need to get this aircraft on the ground.” To Castillo, Gonzalez appeared “very angry,” and “very upset.” Gonzalez then began opening overhead bins and attempted to take out the luggage. Castillo heard him say, “I have a bomb,” and she ran up the aisle to inform the captain, who indicated that the plane would return to Las Vegas.

According to Castillo:

The cabin was total chaos, everybody— the—right at the point when he had said “I have [a] bomb,” I saw many of our male passengers unbuckle their seat-belts and they stood up and they—I remember seeing the people throwing punches and everybody, you know, they were all on top of Mr. Gonzalez.... [Gonzalez] was hysterical and he was swinging and kicking and he was just— he was hitting and kicking passengers and the passengers were trying to take him down and hold him down.

Castillo added that passengers were concerned Gonzalez would open the emergency exit door:

Many of the female passengers were screaming and yelling and crying. The cabin was total chaos. They were yelling, “We’re going to die. We’re going to crash. We’re going down.” And a lot of the women were hysterical. They were—they were thinking we were going to crash. Thinking they—when the passengers heard Mr. Gonzalez say, “I have a bomb,” and at that point it was just all hell broke loose.

Castillo recalled that as Gonzalez made his way toward the emergency exit row, women were screaming and saying, “He’s going to open up the door.” Castillo, who was “very afraid,” noted that the passengers were crying because they thought that if Gonzalez opened the emergency door, the aircraft was going down.

When Gonzalez began opening the overhead bins, another flight attendant, Kyle Woodard, who was on board but was not working the flight, became concerned. Woodard got up to see what was going on, and heard Poulin assuring Gonzalez that the plane was turning around to land in Las Vegas. Woodard heard Gonzalez say “something to the effect of, do I have to say I have a bomb to get this plane on the ground? Gonzalez went on to say, T can blow this plane up.’” Poulin’s statement to the FBI was in accord with Woodard’s version of events.

In the midst of the chaos, Woodard and Poulin tried to restrain Gonzalez by grabbing his arms. Woodard described the following interchange with Gonzalez:

[Gonzalez] was—he looked at Patrick [Poulin] and looked at me, he said he—I have a [unintelligible] you’re going to kill me or something. At that time I told him, I said, well, then let’s calm down, we’re going to let you go, let’s, you know, bring this down, and he—we both released him and he said, “I want this plane on the ground.” Patrick’s saying, “Sir, we’re going back to Vegas.” And then finally he said something to the effect of, you know, f— it, I’m blowing the plane up, I’m .taking it down.

In response to a question whether Gonzalez “was going to take the plane down,” Woodard testified, “I was afraid that he had a device or something [and that] it was going to do harm to myself and my crew and my passengers, yes.”

Gonzalez then opened an overhead bin and began pulling out a bag, which set off a struggle during which Gonzalez kicked Poulin. Several passengers assisted Pou-lin and Woodard in an attempt to restrain Gonzalez. During the course of this struggle he “hit several passengers with his arms and legs” and was “kicking everybody.” Flight attendants and passengers were ultimately able to restrain Gonzalez with plastic handcuffs.

The plane was diverted and it returned to Las Vegas without further incident. FBI agents arrested Gonzalez, who told them that “he knew what he was doing was wrong but felt he had to do something to land the plane.” At the change of plea hearing, Gonzalez acknowledged that, although he had used methamphetamine the day before the incident, he was aware of his actions and understood and knew what he was doing at the time of the incident. The precise statement that Gonzalez made about the bomb is in dispute. In the change of plea hearing, Gonzalez denied making the specific statement “I have a bomb,” but admitted to stating, “what do I have to do to get this plane to Jand? Do I have to say I have a bomb?”

Gonzalez was indicted on one count of interference with a flight crew member in violation of 49 U.S.C. § 46504. To violate § 46504, a defendant’s conduct of “assaulting or intimidating a flight crew member or flight attendant” must “interfere[ ] with the performance of the duties of the member or attendant or lessen[ ] the ability of the member or attendant to-perform those duties.” 49 U.S.C. § 46504. Although Gonzalez initially entered a plea of not guilty, he later changed his plea to guilty.

The Presentence Investigation Report (“PSR”) recommended a nine-point base offense level enhancement (from 9 to 18) under United States Sentencing Guidelines § 2A5.2(a)(2) on the ground that Gonzalez recklessly endangered the safety of the aircraft. During the sentencing hearing, which took place over several sessions, the court heard testimony from flight attendants Nancy Castillo and Kyle Woodard. Gonzalez disputed the claim that he had recklessly endangered the safety of an aircraft.

At the final' hearing, the district court reviewed the procedural history of the case, summarized the parties’ respective positions concerning the sentencing issues and reviewed the Guidelines’ calculations. The district judge stated, “[t]he court has considered all of the factors and the advisory guidelines in my judgment are twenty-one (21) to twenty-seven (27) months. I will impose a 27-month sentence on the defendant. I will require him to be supervised for three (3) years, and to pay the one hundred dollar ($100) special assessment.” The district court did not apply the two-level enhancement for obstruction of justice but gave Gonzalez the benefit of a two-level downward adjustment for acceptance of responsibility. The district court also specified that the offense level was 16, meaning that it had applied the nine-level enhancement.

ANALYSIS

The central issue on appeal is whether the nine-level Guideline enhancement for recklessly endangering the safety of an aircraft is applicable to Gonzalez’s conduct. In addition, although he did not raise the standard of proof issue below, Gonzalez claims that reversal is warranted because the enhancement must be proven by clear and convincing evidence.

I. History of U.S.S.G. § 2A5.2(A)(2)

Before the enactment of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”), Pub.L. No. 107-56, 115 Stat. 272 (2001), § 2A5.2(a)(2) referred to recklessly endangering the safety of the “aircraft and passengers.” U.S.S.G. § 2A5.2(a)(2) (2001) (emphasis added). Effective November 1, 2002, § 2A5.2(a)(2) was amended to refer to “endangering the safety of ... an airport or an aircraft; or ... a mass transportation facility, a mass transportation vehicle, or a ferry.” U.S.S.G. § 2A5.2(a)(2)(2003).

The USA PATRIOT Act also led to the addition of a new subsection, § 2A5.2(b), relating to the use of dangerous weapons. According to the United States Sentencing Commission’s stated reasons for the amendment, § 2A5.2(b) was added to “address[] concerns that the current base offense level of 18 (in § 2A5.2(a)(2)) for reckless endangerment may be inadequate in situations involving a dangerous weapon and reckless disregard for the safety of human life.” U.S.S.G. Supp. to Append. C, amend. 637, at 247 (2002). Another new subsection, § 2A5.2(c), was added to “cross reference ... the appropriate homicide guideline ... for offenses in which death results.” Id.

The overall effect of these amendments, taken together, is two-fold. First, it is now easier to invoke the sentence enhancements because § 2A5.2(a)(2) does not require a showing of endangerment to the passengers. For example, even if an individual threatened to blow up an empty aircraft, he could receive an enhancement under § 2A5.2(a)(2). And, in the case of an aircraft loaded with passengers, Congress reasonably assumed, as would most people, that endangering an aircraft would endanger the passengers. Second, to the extent reckless endangerment involves dangerous weapons or results in death, the overall penalties are now higher.

II. Application of the Adjustment Under U.S.S.G. § 2A5.2(A)(2)¹

The adjustment under § 2A5.2(a)(2) applies “if the offense involved recklessly endangering the safety of ... an aircraft.” U.S.S.G. § 2A5.2(a)(2). Gonzalez argues that the “crucial legal ful-erum,” as he terms it, is whether he recklessly endangered the actual aircraft and that while he may have interfered with the crew and arguably even endangered passengers, the adjustment is inapplicable because he did not endanger an aircraft. In sum, he claims that he endangered only the flight crew and passengers, not the aircraft.

To the extent Gonzalez’s point is that the adjustment requires conduct beyond the underlying offense, he is correct. Simply interfering with the flight crew is insufficient to warrant the nine-level enhancement. But Gonzalez’s ultimate argument fails for two reasons: first, endangerment of the aircraft does not require evidence of actual harm to the aircraft; and second, Gonzalez’s irresponsible statements, threats and conduct easily qualified as reckless endangerment to “the safety of ... an aircraft” within the meaning of § 2A5.2(a)(2).

Turning to the first argument, not surprisingly, Gonzalez points to no case that requires evidence of actual harm to the aircraft under § 2A5.2(a)(2). Common sense tells us that a defendant can endanger something without causing actual harm. See, e.g., Price v. United States Navy, 39 F.3d 1011, 1019 (9th Cir.1994) (“Courts have ... consistently held that ‘endangerment’ means a threatened or potential harm and does not require proof of actual harm.”) (Resource Conservation and Recovery Act) (citations omitted); Ethyl Corp. v. EPA 541 F.2d 1, 13 (D.C.Cir.1976) (“Case law and dictionary definition agree that endanger means something less than actual harm.”) (Clean Air Act).

Nothing suggests that this commonly-accepted meaning should not apply here. In a closely analogous situation, the district court explained:

Defendant urges this court ... to find that 2A5.2(a)(2) applies only if there is actual harm to the aircraft and passengers. Such a construction would mean that this Base Offense Level would apply only when an aircraft actually crashed or suffered other damage as a result of a defendant’s action. Had this been the intended meaning, the term ‘harming’ would have been more appropriate than endangering, which means ‘putting someone or something in danger; exposing to peril or harm.’

United States v. Guerrero, 193 F.Supp.2d 607, 608 (E.D.N.Y.2002) (quoting Black’s Law Dictionary 547 (7th ed.1999)).

Recognizing that actual harm to the aircraft is not required for behavior to constitute endangerment, we next consider the contours of “recklessly endangering the safety of ... an aircraft.” Section 2A5.2 does not define “reckless.” However, Application Note 1 to U.S.S.G. § 2A1.4 defines the term “reckless” in the context of involuntary manslaughter as a situation in which the defendant “was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation.” U.S.S.G. § 2A1.4, app. n. 1. We adopted this definition in United States v. Naghani, 361 F.3d 1255, 1263 (9th Cir.2004), a case that raised similar issues involving reckless endangerment of an aircraft.

In Naghani, the defendant entered the aircraft lavatory and lit a cigarette, which set off a smoke alarm. When confronted, he argued with a flight attendant and threatened to “kill all Americans.” Id. at 1260. Although Naghani denied making this statement or refusing to cooperate, the jury convicted him of interfering with the duties of a flight crew in violation of 49 U.S.C. § 46504. The district court imposed the enhancement under § 2A5.2(a)(2). In upholding the enhancement, we observed:

The district court found that Naghani had acted recklessly based on the entire course of Naghani’s alleged conduct. The district court properly found that Naghani was aware of the risk created by his smoking, obstreperous behavior and threats, and that such conduct constituted a gross deviation from a standard of ordinary care. Naghani should have been aware that his behavior would divert the flight attendants’ attention from their duties and require their presence. If an actual emergency had arisen at another part of the plane, the distraction would have delayed, and perhaps prevented, an effective response by the flight attendants.

Id. at 1263 (emphasis added).²

The Tenth Circuit’s treatment of § 2A5.2(a)(2) is consistent with our analysis. See United States v. Jenny, 7 F.3d 953 (10th Cir.1993). In Jenny, the defendant was convicted of intimidating a flight crew under 49 U.S.C.App. § 1472(j), the predecessor statute to 49 U.S.C. § 46504. The district court applied a base offense level of 18 under § 2A5.2(a)(2). Id. at 954. Jenny cursed at the flight attendant and other passengers, made sexually suggestive remarks and gestures, grabbed a female flight attendant’s breast and a female passenger’s arm, and approached the cockpit area and sat in the flight attendant’s jump seat, among other things. Id. at 954-55. The captain was forced to make an unscheduled landing due to Jenny’s conduct. Id. at 955. The court affirmed the sentencing enhancement under § 2A5.2(a)(2), holding that Jenny “acted with an awareness to foreseeable consequence.” Id. at 957.

Two district court cases are also particularly instructive. In Guerrero, the court held that the enhancement applied when an intoxicated passenger was so unruly that the captain concluded that he must return to John F. Kennedy International Airport rather than continue on to Santo Domingo, Dominican Republic. 193 F.Supp.2d at 609-10. The passenger’s behavior included shoving, hitting, sexual touching, and threats that he was going to kill everyone on the aircraft. Id. at 610. The pilot left his duties in the cockpit to deal with the passenger, and the aircraft had to be turned around and returned to New York.³ Id. The court held that these actions exposed the aircraft and passengers to harm within the meaning of the Guidelines.

In the second case, United States v. Spellman, 243 F.Supp.2d 285 (E.D.Pa.2003), the court held that it could have applied the reckless endangerment enhancement, but did not do so because the parties had stipulated to a base offense level of nine. Id. at 295 n. 19. During the flight, Alonzo Spellman, a former defensive end for the Chicago Bears, was extremely abusive and threatening to the flight attendants and fellow passengers, and made comments like, “I hope we make it to Philadelphia before this plane crashes into a building.” Id. at 287. He also “talked out loud about opening the door while in flight” and said to the flight crew, “Give me a parachute and I’ll jump off this plane.” Id. After multiple failed attempts by the captain, flight attendants and passengers to restrain Spellman, the pilot requested a priority handling that allowed the plane to land early at the Philadelphia airport. See id. at 288. The district court found that Spellman created an atmosphere of “pervasive terror.” Id. at 294. As the court summarized:

In typical prosecutions under Sections 1472(j) and 46504, the defendants insult, physically harass, and in some cases even threaten to kill flight personnel. However, it is the rare case in which passengers experience the degree of fear and intimidation that Spellman instilled in so many of his fellow passengers. Indeed, we found few cases in which the passengers had serious grounds to worry that the offender would actually bring doum the plane.

Id. at 293 & n. 13 (collecting cases) (emphasis added).

As these cases illustrate, diversion of the aircraft, behavior that instills fear and terror in the other passengers or the flight crew, and threats that could result in harm to the aircraft are sufficient, depending on the combination of circumstances, to constitute reckless endangerment of the safety of the aircraft. Gonzalez’s conduct encompassed these risks and more.

To be sure, simply disrupting the flight attendants and causing other passengers discomfort does not rise to the level of reckless endangerment. But Gonzalez’s statements about the bomb were no joking matter. Surely threats about a bomb— whether couched in terms of “do I have to say I have a bomb?” or “I’m blowing the plane up, I’m taking it down”—go beyond interference with the flight crew’s performance of duties and constitute “a gross deviation from the standard of care that a reasonable person would exercise in such a situation.” U.S.S.G. § 2A1.4, app. n. 1. The passengers were yelling, “[wje’re going to crash. We’re going down.” The air of terror created by Gonzalez, who candidly admitted he knew what he was doing, was reckless in the extreme.

Gonzalez’s argument that his conduct— whatever its impact on the flight crew and passengers—does not amount to endangerment of the aircraft, misses the mark because his conduct endangered both the people and the aircraft itself. An aircraft is a captive, closed environment in which the safety of the passengers and the integrity of the aircraft are closely intertwined. It doesn’t take an aeronautical engineer to recognize that a threat of a bomb in that environment and the havoc that such a threat might cause is a threat to the safety of the aircraft. Nowhere in § 2A5.2(a)(2) is there a requirement that an actual weapon or bomb be found on the plane. Such a narrow interpretation would remove highly reckless and threatening eon-duct from the ambit of § 2A5.2(a)(2), a result that makes no common sense.

And finally, as occurred in both Guerrero and Spellman, Gonzalez’s conduct precipitated an emergency diversion of the aircraft and a return to Las Vegas. This diversion was yet another risk to the aircraft caused by Gonzalez’s escalating terror.⁴

The chaos engendered by Gonzalez goes far beyond his characterization of a threat solely to the safety of the crew and passengers. Their ultimate safety is inextricably bound with the safety of the aircraft but we need not decide whether a threat solely to the passengers would be sufficient to invoke the enhancement. Gonzalez recklessly endangered the aircraft itself. He does not present the case of a drunken passenger who tips over the drink cart, harasses a flight attendant, threatens a passenger, or is simply obstreperous. The enhancement requires more and Gonzalez’s behavior easily falls within the contours of “recklessly endangering the safety of ... an aircraft.” U.S.S.G. § 2A5.2(a)(2).

III. Standard of Proof for Reckless Endangerment

Section 2A5.2 provides for a base offense level of nine for the statute of conviction, 49 U.S.C. § 46504. U.S.S.G. § 2A5.2(a)(4). However, “if the offense involved recklessly endangering the safety of ... an aircraft,” the base offense level is 18. U.S.S.G. § 2A5.2(a)(2). Gonzalez argues that the enhancement must be supported by clear and convincing evidence.

As a general rule, the party seeking to adjust an offense level must establish by a preponderance of the evidence that the adjustment is merited. See United States v. Charlesworth, 217 F.3d 1155, 1158 (9th Cir.2000). However, a sentencing factor that has “an extremely disproportionate effect on the sentence relative to the offense of conviction” may require a district court to find that factor by clear and convincing evidence, rather than by a preponderance of the evidence. See United States v. Munoz, 233 F.3d at 1117, 1127 (9th Cir.2000).⁵

Although we conclude that the heightened standard is appropriate here, we review for plain error because Gonzalez did not raise this argument before the district court. United States v. Bahe, 201 F.3d 1124, 1127 (9th Cir.2000). “Plain error is found only where there is (1) error, (2) that was clear or obvious, (3) that affected substantial rights, and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Id. (citation and quotation marks omitted); see United States v. Jordan, 256 F.3d 922, 926 (9th Cir.2001) (applying plain error standard to a case where defendant failed to object to application of preponderance of the evidence standard at sentencing).

To assess whether the heightened standard of proof applies, we review the totality of the circumstances, United States v. Dare, 425 F.3d 634, 642 (9th Cir.2005), including the following factors:

1. Does the enhanced sentence fall within the maximum sentence for the crime alleged in the indictment?

2. Does the enhanced sentence negate the presumption of innocence or the prosecution’s burden of proof for the crime alleged in the indictment?

3. Do the facts offered in support of the enhancement create new offenses requiring separate punishment?

4. Is the increase in sentence based on the extent of a conspiracy?

5. Is the increase in the number of offense levels less than or equal to four?

6. Is the length of the enhanced sentence more than double the length of the sentence authorized by the initial sentencing guideline range in a case where the defendant would otherwise have received a relatively short sentence?

United States v. Johansson, 249 F.3d 848, 854 (9th Cir.2001) (citation omitted) (quoting United States v. Valensia, 222 F.3d 1173, 1182 (9th Cir.2000), cert. granted and judgment vacated on other grounds, 532 U.S. 901, 121 S.Ct. 1222, 149 L.Ed.2d 133 (2001)). No single factor is controlling. Dare, 425 F.3d at 642.

Although the first four factors are either not particularly relevant or do not weigh in favor of a heightened standard, the last two factors are significant. In Jordan we concluded that a nine-level enhancement, which we have here, “strongly supports application of the clear and convincing evidence standard.” Jordan, 256 F.3d at 929. The offense level increase, the fifth factor, weighs heavily in favor of a heightened burden. The sixth factor, whether the length of the enhanced sentence is more than double the length of the sentence authorized by the initial Guideline range in a case where the defendant would otherwise have received a relatively short sentence, likewise counts in Gonzalez’s favor. The nine-level enhancement raised the applicable Guideline range from zero to six months (where probation is a viable option) to 21 to 27 months, which is more than four times the upper end of the Guideline range.

We have previously invoked the clear and convincing evidence standard where only the two final factors favor its application, and nothing suggests that we should take a different approach here. See Jordan, 256 F.3d at 929 (holding that heightened standard should have been applied when the sentence was more than doubled). See also id. at 934 (O’Scannlain, J., concurring) (“Since Hopper, we appear to have consistently held that when the enhancement is greater than four levels and more than doubles the applicable sentencing range, then the enhancements must be proved under the ‘clear and convincing’ standard of proof.” (collecting cases)).

The district court did not specify the standard of proof nor did Gonzalez’s counsel raise the issue. Gonzalez is not entitled to reversal, however, simply because the district court should have applied the clear and convincing standard. The failure to articulate the standard did not prejudice Gonzalez. As we explained in Jordan:

An error that is plain must also ‘affect substantial rights.’ In most cases this language means that ‘the error must have been prejudicial: It must have affected the outcome of the district court proceedings.’ ... Jordan therefore must make a specific showing of prejudice to satisfy this prong. However, it is evident beyond doubt that Jordan’s increased incarceration caused by the challenged enhancements is prejudicial if these enhancements could not have been proved by clear and convincing evidence.

256 F.3d at 930 (emphasis added). See also United States v. Technic Servs., 314 F.3d 1031, 1046 (9th Cir.2002) (holding on plain error review that the record reflected the court found the enhancements by clear and convincing evidence, based on certain statements the judge made).

Because the evidence in this case was overwhelming, it is evident that the facts related to the enhancement were established by clear and convincing evidence. The dispute over Gonzalez’s language with respect to the bomb does not change the calculus. Even accepting Gonzalez’s version, coupled with the uncontroverted testimony of the flight attendants and other aspects of Gonzalez’s behavior, the standard is easily met.

AFFIRMED.

1 . Gonzalez's related argument that the sentence was unreasonable is premised on the contention that the district court improperly invoked the enhancement. We need not address this issue in light of our conclusion that Gonzalez's conduct falls within the range of conduct contemplated by the enhancement.

2 . We cannot embrace the dissent’s suggestion that Naghani is "not binding because the court [in Naghani] did not consider the meaning of 'aircraft’ or what level of interference satisfied the Guideline,’’ or that its analysis is dicta. Dissenting op. at 1042. Naghani squarely addressed the question presented here—i.e., whether the district court’s application of § 2A5.2(a)(2) was an abuse of discretion. Under the Guidelines in effect at sentencing, the government was required to show that Naghani had endangered both "the aircraft and passengers.” See U.S.S.G. § 2A5.2(a)(2) (2001). That the court did not parse the meaning of aircraft or that its analysis relating to § 2A5.2 was brief, does not render its conclusion dicta.

3 . Of course it is not necessary for the pilot to leave the cockpit to address a crisis, thus diverting his attention. Here, the pilot’s ordinary flight routine was seriously disrupted when an alarmed flight attendant alerted him tó the bomb threats and the fracas in the cabin. Given the increased security measures and policies in effect post-9/11, it may well have been imprudent for the pilot to have left the cockpit under the circumstances.

4 . The dissent's statement that “the more reasonable inference [regarding the aircraft's diversion] would seem to be that ... the pilot concluded that it would be safer to return to Las Vegas, rather than continue on to Ontario, California,” dissenting op. at 1042, can only be described as a logical fallacy. The pilot apparently considered a diversion of the aircraft back to Las Vegas, even under emergency, distress situations, to be safer than proceeding to Ontario once Gonzalez threatened to bring down the plane. But such diversion was certainly not safer than the normal operation of the flight to Ontario in the absence of Gonzalez’s disruptive behavior and threats.

5 . Post-Booker, these same standards remain applicable. See United States v. Kilby, 443 F.3d 1135, 1140-41 & n. 1 (9th Cir.2006); see also United States v. Staten, 466 F.3d 708, 717 (9th Cir.2006).