* This order and judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of Tenth Ci r. R. 36.3. UNITED STATES COURT OF APPEALS Filed 7/10/96 FOR THE TENTH CIRCUIT

______ MICHAEL A. BEAUCHEMIN, ) ) Petitioner, ) ) v. ) No.95-9534 ) FAA No. SE-13814 NATIONAL TRANSPORTATION SAFETY ) BOARD, FEDERAL AVIATION ) ADMINISTRATION, ) ) Respondents. )

______ ORDER AND JUDGMENT *

______ Before SEYMOUR, BARRETT, and LIVELY* , Circuit Judges.

______ BARRETT , Senior Circuit Judge.

______ *The Honorable Pierce Lively, Senior Judge, United States Circuit Court of Appeals for the Sixth Circuit, sitting by designation.

______ Michael A. Beauchemin (Beauchemin) appeals from an order of the National Transportation Safety Board (NTSB) aff irming an order of the Federal Aviation Administration (FAA) revoki ng his private pilot certificate.
Facts On April 12, 1991, Beauchemin was convicted upon hi s plea of- 2 -

guilty of engaging in a continuing criminal enterpr ise, in violation of 21 U.S.C. § 848. In his plea, Beauche min admitted that between 1983 and 1988 he served as an organize r, supervisor, or manager of at least five other people involved i n the importation, possession with intent to distribute, and distribution of 24,000 pounds of marijuana. Based on his conduc t, he was sentenced to imprisonment for seven years followed by five years of supervised release. On September 23, 1994, the FAA issued an order revo king Beauchemin’s private pilot certificate, No. 2392742 , pursuant to 49 U.S.C. § 44709(b), based on Beauchemin’s conviction . The FAA concluded that Beauchemin’s conviction demonstratedthat he lacked the degree of care, judgment, and responsibility re quired of a certificate holder under 14 C.F.R. § 61.15(a)(2); t herefore, he lacked the qualifications to hold a pilot certifica te. Beauchemin appealed the FAA’s revocation order to t he NTSB. In his answer, Beauchemin admitted the factual alle gations in the FAA’s complaint, including that he was convicted ofengaging in a continuing criminal enterprise. On January 13, 1995, the Administrative Law Judge ( ALJ) granted the FAA’s November 22, 1995, motion for summary judgment and affirmed the FAA’s revocation of Beauchemin’s p ilot certificate. On January 19, 1995, the NTSB denied Beauchemin’s appeal and affirmed the ALJ’s initial decision affi rming the FAA’s- 3 -

revocation order. Administrator v. Beauchemin , N.T.S.B. Order No. EA-4371 (1995). Discussion On appeal, Beauchemin contends that revocation of h is pilot certificate based on his prior conviction is puniti ve and, thus, constitutes multiple punishments for the same crime in violation of the Double Jeopardy Clause of the Fifth Amendment. We derive our authority to consider Beauchemin’s constitutional a rguments from 5 U.S.C. § 706(2)(B), and we review the NTSB’s interp retation of constitutional or statutory provisions de novo . Bennett v.
N.T.S.B. , 66 F.3d 1130, 1136 (10th Cir. 1995). “[T]he Double Jeopardy Clause protects against thre e distinct abuses: a second prosecution for the same offense a fter acquittal; a second prosecution for the same offense after con viction; and multiple punishments for the same offense.” UnitedStates v. Halper , 490 U.S. 435, 440 (1989). In Halper , the Court noted that in making a double jeopardy assessment, “the labels ‘criminal’ and ‘civil’ are not of paramount importance.” Id . at 447. The test of “whether a civil sanction constitutes punishment inthe relevant sense requires a particularized assessment of the p enalty imposed and the purposes that the penalty may fairly be sai d to serve.” Id . at 448. The FAA revoked Beauchemin’s pilot certificate purs uant to 14 C.F.R. § 61.15(a)(2), FAR § 61.15(a)(2). Section 6 1.15(a)(2)1 It is undisputed that Beauchemin did not “use” his

pilot certificate in the commission of his offense. However, § 61.15(a)(2) does not contain a “use” requirement, H ernandez v. N.T.S.B. , 15 F.3d 157, 159 (10th Cir. 1994); therefore, use is irrelevant to the issue of whether the regulation i s remedial or punitive for double jeopardy analysis. - 4 - provides that a pilot’s certificate may be revoked or suspended if the certificate holder has been convicted of a fede ral or state crime involving a controlled substance. Beauchemindoes not dispute that he was convicted of engaging in a cont inuing criminal enterprise with the intent to possess and distribut e 24,000 pounds of marijuana. 1Beauchemin’s sole challenge is that revocation of his pilot certificate after he has been convicted a nd sentenced for the criminal offense is a second punishment which c onstitutes double jeopardy. In Pinney v. N.T.S.B. , 993 F.2d 201, 203 (10th Cir. 1993), we concluded that “it is reasonable to conclude that apilot who has violated a drug trafficking statute is also likely to violate regulations concerning air safety.” See 38 Fed. Reg. 17,491 (1973) (conviction for violating drug law clearly demonstr ates a “tendency to act without inhibition in an unstable manner wit hout regard to the rights of others”). Therefore, the civil penal ty assessed against Beauchemin bears a reasonable relationship to the government’s interest in promoting air safety. Revocation of a pilot certificate “is a remedy impo sed to enhance air safety and to promote the public intere sts.” Kolek v.- 5 -

Engen , 869 F.2d 1281, 1288 (9th Cir. 1989). We agree. Therefore, Beauchemin’s double jeopardy argument fails. The order of the NTSB affirming the revocation of B eauchemin’s pilot certificate is AFFIRMED.
Entered for the Court:

James E. Barrett, Senior United States Circuit Judge