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Though it seems obvious, the 11th Circuit decided that a conviction for firing a gun in the direction of a helicopter was a crime of violence

In U.S. v. McGuire, the defendant challenged the sufficiency of the evidence to support his conviction of attempting to damage, destroy, disable, set fire to, or wreck an aircraft in the special aircraft jurisdiction of the United States in violation of 18 U.S. C. §32(a)(1). After McGuire shot of several rounds of a gun near his driveway, neighbors called police, who responded with officers on the ground and a police helicopter. As the helicopter shined its spotlight in McGuire’s direction, McGuire raised his arm and fired one round in the sky. A deputy saw him fire in the direction of the spotlight as the helicopter orbited and another witness said he fired in the general direction of the helicopter. McGuire said he went outside to fire into the sky randomly without meaning to hit the helicopter and not knowing it was in the sky, but witnesses contradicted his testimony by attesting to the noise and vibrant light the helicopter produced. McGuire argued the the deputy’s testimony was inherently incredible and that a reasonable person would believe it beyond a reasonable doubt because McGuire stood still without moving to follow the helicopter’s path or tacking it as he fired. The 11th Circuit found McGuire’s argument is simply disputing the inference a jury can draw from the evidence, and the inferences have to be drawn in favor of the jury verdict.

The 11th Circuit also upheld district court’s finding that the offense of attempting to damage destroy, disable, or wreck an aircraft is a crime of violence for the purpose of 18 U.S.C. 924(c)(1)(A), which imposes a consecutive sentence for anyone using a firearm in connection with a crime with a crime of violence. The court used the “categorical approach” because § 924 defines a criminal offense as “an offense” that “has as an element the use, attempted use or threatened use of physical force against the person or property of another” or “by its nature, involves a substantial risk that physical force against the person or property of another may be used.” The categorical approach must reference the elements of the offense and not the actual facts of McGuire’s conduct, and for this reason, even though firing a gun at a helicopter is unmistakably violent, the categorical approach requires the court to determine whether the crime, in general, plausibly covers any non-violent conduct. “Only if the plausible applications of the statute of conviction all require the use or threatened use of force can McGuire be held guilty of a crime of violence.”

The 11th circuit found that a federal jurisdictional element of the statute requires that the aircraft be “in flight” which is defined as encompassing the time the moment all external doors are closed following boarding through the moment when one external door is opened to allow passengers to leave.” In other words the conviction was for attempting to damage or disable an aircraft that was either flying or ready to take off or arriving at its destination. In that context the offense was offense necessarily involved the attempted or threatened destruction of sensitive property or lives and was a crime of violence.

In case you missed it, please find my previous entry to my Miami criminal defense lawyer blog below:

Conviction for misapplying federal funds reversed, January 26, 2013

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