United States v. James Leslie Norman

951 F.2d 1182, 1991 U.S. App. LEXIS 29358, 1991 WL 263276
CourtCourt of Appeals for the Tenth Circuit
DecidedDecember 17, 1991
Docket91-3099
StatusPublished
Cited by24 cases

This text of 951 F.2d 1182 (United States v. James Leslie Norman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. James Leslie Norman, 951 F.2d 1182, 1991 U.S. App. LEXIS 29358, 1991 WL 263276 (10th Cir. 1991).

Opinion

JOHN P. MOORE, Circuit Judge.

James L. Norman appeals his sentence for making two false reports to Braniff Airlines claiming his ex-wife’s suitor was aboard a Braniff plane carrying a handgun and explosives. Mr. Norman was charged with two counts of violating 49 U.S.C.App. § 1472(m) (imparting false information regarding firearms and explosives aboard an aircraft). Because there is no specific sentencing guideline for violation of § 1472(m), the district court applied the guideline for the offense of making threatening communications. The court also refused to group the two counts for sentencing purposes. We conclude the guideline which should have been applied is that for the offense of possessing dangerous weapons or materials while boarding an aircraft. We also conclude the two counts should have been grouped. We therefore reverse and remand for resentencing.

On October 7, 1988, Mr. Norman anonymously telephoned Braniff Airlines and told them Mike Benkowsky was aboard a plane in route from San Diego to Kansas City and that he was carrying a handgun and explosives. Although airport security police attempted to detain Mr. Benkowsky, the plane had already landed, and they were unable to locate him. Mr. Norman made a second anonymous call to Braniff and reported Mr. Benkowsky would be leaving Kansas City for San Diego armed with explosives.

At 9:55 a.m. on October 9, a Braniff flight left Kansas City for San Diego. While that flight was in the air, Braniff received another call stating a dangerous felon was aboard with explosives. Noting Mr. Benkowsky had purchased a ticket on that flight, Braniff officials ordered the plane to return to Kansas City where the passengers were removed and the baggage searched. Mr. Benkowsky was not aboard the plane. Because no explosives were found, the flight was resumed.

Braniff had a second flight to San Diego later that day. As the plane was preparing to take off, it was stopped by airport security. This time, the officers found Mr. Ben-kowsky and removed him from the plane in handcuffs. After questioning him, the officers released Mr. Benkowsky, and he returned to California.

Authorities discovered Mr. Norman’s role in these events, and ultimately he was charged with two counts of violating 49 U.S.C.App. § 1472(m), to which he entered pleas of guilty. Defendant readily admit *1184 ted his guilt to the presentence investigator, advising him he made the calls because his former wife had entered a relationship with Mr. Benkowsky.

We must determine whether the district court correctly applied the guidelines, given there is no specific provision for the offense to which Mr. Norman pled. Application of the guidelines is reviewed for errors of law de novo, United States v. Banashefski, 928 F.2d 349, 351 (10th Cir.1991). When the issue cannot be resolved by a plain reading of the guideline in question, we will look to the Commentary and Supplemental Illustrations for guidance. Id.

When a charge is not covered by the guidelines, the court must apply “the most analogous offense guideline.” United States Sentencing Guidelines § 2X5.1. Although Mr. Norman pled guilty to two counts of violating § 1472(m), there is no sentencing guideline for that crime. Thus the district court was bound to find the most analogous offense upon which to base the sentence. In this instance, over the defendant’s objection, the court chose to apply the guideline for the crime of “Threatening Communications,” U.S.S.G. § 2A6.1. Despite the apparent similarity in the title of the statute defining the underlying crime, the substantive offense of making threatening communications has no statutory parallel to the offense of which Mr. Norman was convicted.

The offense of threatening communications, codified in 18 U.S.C. §§ 871, 876, 877, 878(a), and 879, is committed by making threats against a President, using the mail to make threats, making threats against foreign dignitaries and officials, and making threats against a former President. Mr. Norman's criminal conduct does not implicate any of these crimes. A closer parallel exists, however, between his conduct and the offense of “[cjarrying weapons, loaded firearms, and explosives ... aboard an aircraft,” 49 U.S.C.App. § 1472(i), to which U.S.S.G. § 2K1.5 specifically applies.

Not only is there a factual parallel between the act of carrying a loaded firearm or explosive aboard an aircraft and Mr. Norman’s criminal act, there is also a statutory affinity between the two offenses. Section 1472(m) provides:

(1) Whoever willfully and maliciously, or with reckless disregard for the safety of human life, imparts or conveys ... false information, knowing the information to be false and under circumstances in which such information may reasonably be believed, concerning an attempt ... being made or to be made, to do any act which would be a felony prohibited by subsection (i), (j), (k), or (l) of this section, shall be fined ... or imprisoned. ...

(emphasis added). Section 1472(1), included within § 1472(m), criminalizes carrying weapons aboard an aircraft. The false information conveyed by Mr. Norman was that Mr. Benkowsky was carrying a weapon and an explosive aboard an airliner. Because of these factual and statutory parallels, we believe Mr. Norman’s threats are more analogous to carrying a weapon aboard a plane than to making a threat against a President, foreign dignitary, or by use of the mails. Thus, Guideline § 2K1.5, which provides the base offense level for carrying weapons aboard an aircraft is the most analogous guideline for sentencing a violation of § 1472(m). 1

Having concluded the district court erred in applying § 2A6.1, we must consider whether Mr. Norman is correct that the counts should be grouped for sentencing. Guideline § 3D1.2 provides:

All counts involving substantially the same harm shall be grouped together into a single Group. Counts involve substantially the same harm within the meaning of this rule:
*1185 (b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.

The district court did not apply § 3D1.2 because it specifically excludes “all offenses in Chapter Two, Part A.” Thus, because the court applied § 2A6.1, it was logical for the court to deny defendant’s request for grouping.

The district court’s reasoning is no longer applicable, however. Therefore, we must review the facts and determine whether they fit within the confines of § 3D1.2(b).

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Bluebook (online)
951 F.2d 1182, 1991 U.S. App. LEXIS 29358, 1991 WL 263276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-leslie-norman-ca10-1991.