10/27/25: Case on 18 U.S.C. § 922(g)(8)(C)(ii)

In United States v. Vandyke, --- F.4th ---, No. 24-2861 (9th Cir. 2025), on the government’s appeal, the Court reversed the district court’s order dismissing an indictment charging Ryan VanDyke with illegal firearm possession in violation of 18 U.S.C. § 922(g)(8)(C)(ii), and remanded for further proceedings.

Section 922(g)(8)(C)(ii) prohibits firearm possession by an individual subject to a court order that “by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury.”

VanDyke argued that application of the federal statute to him violated the Second Amendment.  The district court agreed.  The Ninth reversed. 

In light of intervening precedent in United States v. Rahimi, 602 U.S. 680 (2024), we reverse. As the Court wrote in Rahimi, “[s]ince the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.” Id. at 690. The Court emphasized that a historical analogue suffices; a “historical twin” is not required. Id. at 692 (quoting New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 30 (2022)). We also have a long historical tradition concerning “categories of persons thought by a legislature to present a special danger of misuse.” Id. at 698; see also United States v. Duarte, 137 F.4th 743, 756–61 (9th Cir. 2025) (en banc). Such categories include criminals facing serious pending charges on pretrial release. See United States v. Perez-Garcia, 96 F.4th 1166, 1182–84 (9th Cir. 2024), cert. denied, 145 S. Ct. 2707 (2025). VanDyke fits this description to a tee. We conclude that Section 922(g)(8)(C)(ii) is constitutional as applied to VanDyke. 

Section (C)(ii)’s “why” and “how” are analogous to two historical traditions of firearm regulation. The first tradition is individual disarmament based on a judicial determination of dangerousness, as embodied by the surety and goingarmed laws relied upon in Rahimi. 602 U.S. at 695–700. The second tradition is categorical disarmament, as manifested in laws forbidding firearm possession by whole groups of people whom “the legislature deemed dangerous.”

We conclude that the justification for the entry of the no-contact order against VanDyke—and thus this application of Section 922(g)(8)(C)(ii)—was the state court’s implicit determination that he posed a threat to the physical safety of his victim and other protected persons. This is not just analogous, but virtually identical, to the justification that the Court upheld in Rahimi. Like our sister circuits, given such a strongly implied dangerousness finding by the state court, we see no need to require further documentation. See Boyd, 999 F.3d at 187; Gordon, 137 F.4th at 1157. VanDyke’s argument ignores the terms of Section (C)(ii) and the structure of Idaho law. Cf. United States v. Reese, 627 F.3d 792, 802–04 (10th Cir. 2010), abrogated on other grounds by Bruen, 597 U.S. 1 (concluding, for similar reasons, that “no [explicit credible-threat] findings were necessary” to establish that Section (C)(ii) was intended to keep firearms out of the hands of those who pose a heightened danger of misuse towards an intimate partner or child).  

In addition to the tradition of individualized disarmament, America’s history of firearm regulation also includes “longstanding prohibitions” on firearm possession by certain categories of people. District of Columbia v. Heller, 554 U.S. 570, 626 (2008). Categorical disarmament is based on legislatively presumed danger, rather than an individualized assessment of risk. Duarte, 137 F.4th at 759 (“The historical record reveals a host of regulations that disarmed those whom the legislature deemed dangerous on a categorical basis.”). 

VanDyke falls within at least one category of people who were historically disarmed on a categorical basis: criminal defendants facing serious charges pending trial, including those eligible for pretrial release.

Section 922(g)(8)(C)(ii) is constitutional as applied to VanDyke under the historical traditions of individual disarmament and categorical disarmament. We reverse the district court’s dismissal of the indictment. 

10/20/25: Considering information from a psychological evaluation during sentencing

In United States v. Davis, --- F.4th ---. No. 24-1099 (9th Cir. 2025), the Court affirmed Davis's sentence for making a false statement during a firearms transaction, making a false statement in an application for a passport, and aggravated identity theft.

After pleading guilty to various crimes, Alexandre Zdenek Davis asked the district court to order a psychological evaluation under 18 U.S.C. § 4241 to determine his mental competency before sentencing. He also requested that his evaluation be filed with the court, as required under the statute. But when unfavorable information from the evaluation ended up in his presentencing report, Davis apparently had a change of heart and objected to the court considering that information at sentencing.

On appeal, Davis contends that the district court’s use of his psychological evaluation violated his Fifth Amendment right against self-incrimination. But the Supreme Court case that Davis invokes to support his claim, Estelle v. Smith, 451 U.S. 454 (1981), does not extend the right against self-incrimination so far. We thus hold that the district court did not err by considering Davis’ voluntary psychological evaluation during sentencing. Davis also challenges two other aspects of his sentence, but those claims are barred by the waiver of appeal in his plea agreement.  We affirm the sentence.

Before reaching the merits of Davis’ Fifth Amendment claim, we must determine whether he waived his right to appeal it. Under his plea agreement, Davis may not appeal “any aspect of the sentence, including conditions of probation or supervised release.” 

When a defendant knowingly and voluntarily waives his right to appeal his sentence, this court generally will not review the merits of an appeal. Wells, 29 F.4th at 583–84. But under the Bibler exception, we will hear an appeal despite a waiver when a sentence is “illegal.” United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). “A sentence is illegal if it . . . violates the Constitution.” Id. (citation omitted). Specifically, a defendant may escape an appeal waiver under the Bibler exception “if (1) the defendant raises a challenge that the sentence violates the Constitution; (2) the constitutional claim directly challenges the sentence itself; and (3) the constitutional challenge is not based on any underlying constitutional right that was expressly and specifically waived . . . .” Wells, 29 F.4th at 587. 

Even if the Bibler exception to an appellate waiver applies here, Davis’ Fifth Amendment claim ultimately fails on the merits.

Davis argues that by considering his psychological evaluation at sentencing, the district court forced him to incriminate himself in violation of the Fifth Amendment. Davis did not receive a Miranda warning before his evaluation, although he consented to the evaluation after the examiner reminded him that the results would be provided to the court. Because Davis did not object to the use of the evaluation on Fifth Amendment grounds during sentencing, we review his claim for plain error. See Wells, 29 F.4th at 592. We conclude that the district court did not err by considering Davis’ evaluation.

[W]e find that the Court’s holding in Estelle does not extend beyond the “distinct circumstances” of that case to Davis’ psychological evaluation here. See 451 U.S. at 466. The Estelle court made clear that its decision did not necessarily apply to “all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination,” id. at 469 n.13, and we hold that Estelle does not apply to the examination in this case. The district court did not violate Davis’ right against self-incrimination by considering the results of his voluntary examination when determining his sentence.

10/10/25: Case on facilitation and plain error

In United States v. Tainewasher, --- F.4th ---, No. 243634 (9th Cir. 2025), a divided panel affirmed Samantha Marie Tainewasher’s conviction for illegal use of a communication facility in the commission of a drug felony in violation of 21 U.S.C. § 843(b).

Tainewasher first contend[ed] that the district court plainly erred by failing to instruct the jury that, to convict her of facilitation, it must find that the underlying drug felony was actually committed.  Assuming the district court’s instruction was obvious error by not requiring that finding, we conclude it did not “affect [Tainewasher’s] substantial rights, meaning . . . there was [no] reasonable probability that it affected the outcome of the district court proceedings.” United States v. Conti, 804 F.3d 977, 981 (9th Cir. 2015) (internal quotation marks and citation omitted). Tainewasher’s Facebook messages clearly indicate that a drug felony was committed, and the defense did not dispute the underlying evidence nor ask the jury to acquit her of the communication-facility charge at trial.

Tainewasher also argues that the district court plainly erred by failing to give the jury a specific unanimity instruction regarding the drug felony she allegedly facilitated. “[A] specific unanimity instruction is required if there is a genuine possibility of jury confusion or a possibility that a conviction may occur as the result of different jurors concluding that the defendant committed different acts.” United States v. Lapier, 796 F.3d 1090, 1096 (9th Cir. 2015) (citation and internal quotation marks omitted). Courts look at the text of the indictment, the clarity of the government’s argument, the complexity of the evidence, and the intelligibility of the jury instructions to assess the “risk that different jurors voted to convict on the basis of different facts establishing different offenses.” Id. at 1097. Given the simplicity of the evidence, argument, and instructions related to the communication-facility charge in this case, Tainewasher fails to show that any error affected her substantial rights.

Judge Graber dissented:

In order to prove that Defendant was guilty of violating 21 U.S.C. § 843(b), which criminalizes the use of a “communication facility in committing or in causing or facilitating the commission” of a drug felony, the government must prove that an underlying drug offense occurred. The jury’s instructions here did not require that finding, instead allowing the jury to convict Defendant even if no drug offense occurred. The opinion nevertheless affirms on the ground that Defendant failed to show a reasonable likelihood of a different outcome. I strongly disagree with that conclusion. The government submitted nothing more than a few informal, jargon-filled Facebook chat messages: no drug evidence, no witness testimony, no tracking information—nothing other than the messages quoted in the opinion. In light of that incredibly flimsy evidence, a properly instructed jury almost certainly would harbor a reasonable doubt as to whether a completed drug offense in fact occurred. 

Additionally, the opinion has chosen merely to assume the first two prongs of the plain-error test. By doing so, the opinion fails to clarify and correct Ninth Circuit law on important legal issues that arise often. Parties in future cases, the district courts, and we deserve precedential guidance. Either in this case or in a future appropriate case, we should convene en banc in order to provide that guidance. 

If a controlling precedent by the Supreme Court or by us is on point, then the error is plain. United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2006) (en banc). But— contrary to the government’s argument here—we do not stop our analysis if no binding precedent is on point. Instead, we look to other considerations to determine whether the issue is “subject to reasonable dispute.” Puckett, 556 U.S. at 135. “We must consider whether the available authorities provide a clear answer to the question before us.”

In short, in assessing whether an error is “plain,” we must consider the views of other circuits even if no binding precedent is on point. Our objective is to determine whether the issue at hand is “subject to reasonable dispute,” Puckett, 556 U.S. at 135, not to determine simply whether the issue is controlled by binding precedent. And, as the cases above illustrate, how other circuits have decided the issue can inform our analysis as to the existence—or not—of a reasonable dispute.

In some cases, including United States v. Turman, 122 F.3d 1167 (9th Cir. 1997), we described plain error as “error that is so clear-cut, so obvious, a competent district judge should be able to avoid it without benefit of objection.” Id. at 1170. In Henderson, 568 U.S. at 279, the Supreme Court expressly rejected that formulation. Questioning whether the district judge should have caught the error asks the question at the wrong time—at the time of the error rather than at the time of appeal. Id. Moreover, as the Court explained, the purpose of Rule 52(b) of the Federal Rules of Criminal Procedure has nothing to do with measuring the competency of district judges: “[P]lain-error review is not a grading system for trial judges. It has broader purposes, including in part allowing courts of appeals better to identify those instances in which the application of a new rule of law to cases on appeal will meet the demands of fairness and judicial integrity.” Id. at 278. Rule 52(b) seeks a fair and just result, striking a balance between, on the one hand, the ordinary judicial-efficiency principle that arguments not raised initially may not be raised on appeal and, on the other hand, the liberty interests of a criminal defendant.

Our old formulation of the test, as well as its variants, is thus doubly wrong: asking a question about the wrong time (at the time of trial rather than at the time of appeal) and about the wrong subject matter (the district judge’s perspicacity rather than the obviousness of the error). Regrettably, some of our cases have continued to use such formulations even after Henderson. E.g., United States v. Hackett, 123 F.4th 1005, 1011–12 (9th Cir. 2024); United States v. Rusnak, 981 F.3d 697, 705 (9th Cir. 2020); United States v. Bain, 925 F.3d 1172, 1178 (9th Cir. 2019). The en banc court should overrule our continued application of the antiquated formulation that the Supreme Court expressly rejected. The proper inquiry is simply whether, at the time of appeal, an error is “clear” or instead is “subject to reasonable dispute.” Puckett, 556 U.S. at 135. 

9/26/25: Restitution case

In United States v. Wells, --- F.4th ---, No. 23-3969 (9th Cir. 2025), the Court vacated the district court’s restitution orders, and remanded, in a case concerning the extent to which the funds in a federal retirement savings account, known as a Thrift Savings Plan (TSP) account, are available to compensate crime victims under the Mandatory Victims Restitution Act of 1996 (MVRA).

In a prior appeal, the Court affirmed James Michael Wells’ convictions for murdering two co-workers at a U.S. Coast Guard maintenance facility, but vacated the district court’s restitution order. On remand, the district court issued amended restitution orders, which authorized the government to collect, as a lump sum, all of the funds held in his TSP account. In this appeal, Wells challenged the orders issued on remand.

This case concerns the extent to which the funds in a federal retirement savings account, known as a Thrift Savings Plan (“TSP”) account, 1 are available to compensate crime victims under the Mandatory Victims Restitution Act of 1996 (“MVRA”). TSPs are part of a larger statute, the Federal Employees’ Retirement Systems Act (“FERSA”), which established a comprehensive retirement program for federal employees. Defendant James Michael Wells appeals the district court’s restitution orders, which authorized the government to collect, as a lump sum, all of the funds held in his TSP account. The parties agree that a valid restitution order was entered and that a TSP statutory provision, 5 U.S.C § 8437(e)(3), makes at least some of Wells’ TSP funds subject to government collection. 

The government argues that a TSP regulation, 5 C.F.R. § 1653.33, allows it to collect the entirety of a defendant’s TSP account balance in one lump-sum payment—i.e., completely cash out the account—whenever a court issues a valid restitution order under the MVRA, 18 U.S.C. § 3663A. Wells argues that the TSP statutory scheme protects his wife’s legal interest in his account and therefore limits the government to garnishing only periodic payments from the account. 

We conclude that the government can completely cash out a defendant’s TSP account to satisfy a restitution order under the MVRA only when the plan’s terms would allow the defendant to do so at the time of the order. Because the TSP’s spousal consent provision did not permit Wells to completely cash out his account unilaterally at the time he was ordered to pay restitution, neither could the government. Accordingly, we vacate the district court’s restitution orders and remand for proceedings consistent with this opinion.

Under the MVRA, the government cannot enforce a restitution order by cashing out a defendant’s retirement plan account if the retirement plan’s terms prohibit the defendant from doing so without spousal consent. Here, FERSA § 8435 provides the relevant terms of Wells’ retirement plan. Section 8435 prohibits Wells from cashing out the balance of his TSP account without his spouse’s consent. Section 8437(e)(3) does not expand the government’s authority under the MVRA, nor does it override FERSA’s spousal protections. Accordingly, we vacate the district court’s restitution orders and remand for restitution proceedings consistent with this opinion, including a determination of whether Wells’ TSP funds constitute “earnings” under 15 U.S.C. § 1673 such that any garnishment would be limited to 25% under the MVRA.

9/23/25: Interesting case on possessing firearms within 1,000 feet of a school in violation of 18 U.S.C. § 922(q)(2)(A)

 In United States v. Metcalf, --- F.4th ---, No. 24-4818 (9th Cir. 2025), a divided Court reversed the district court’s order denying Gabriel Cowan Metcalf’s motion to dismiss an indictment charging him with possessing firearms within 1,000 feet of a school in violation of the Gun-Free School Zones Act, 18 U.S.C. § 922(q)(2)(A), and remanded with direction to dismiss the indictment.

Gabriel Cowan Metcalf lives in Billings, Montana, across the street from a public elementary school. For several days in August 2023—before the school year started—Metcalf patrolled outside his home with a shotgun, including on the sidewalk in front of his home. He did so to protect himself and his mother, whom he lives with, from a former neighbor who had repeatedly violated a protection order that Metcalf’s mother held against the neighbor. Local law enforcement received multiple complaints about Metcalf and confronted him several times, but didn’t charge him with violating any law, and indeed told him that he was complying with state law. Only after Metcalf reached out to the FBI was he indicted for violating the Gun-Free School Zones Act, which prohibits possessing firearms within 1,000 feet of a school. See 18 U.S.C. § 922(q)(2)(A).

On appeal, we hold that Metcalf’s indictment must be dismissed. The Gun-Free School Zones Act excepts from the Act’s broad prohibition individuals who hold a license by their state, if “before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license.” § 922(q)(2)(B)(ii). The parties do not dispute that Metcalf holds a license pursuant to Montana Code section 45-8-360. Instead, they dispute whether Montana’s procedure for issuing this license complied with the requirements set out in § 922(q)(2)(B)(ii). Applying the traditional tools of statutory interpretation, Metcalf has offered at least a plausible reading of the exception in § 922(q)(2)(B)(ii), such that when we factor in the canon of constitutional avoidance and the rule of lenity, Metcalf lacked the appropriate notice to be convicted of violating the Gun-Free School Zones Act. Affirming Metcalf’s conviction would be inconsistent with the principles of fair notice and of not punishing innocent conduct, which underly the presumption in favor of scienter that the Supreme Court addressed in Rehaif v. United States, 588 U.S. 225 (2019). Accordingly, we reverse the district court’s order denying Metcalf’s motion to dismiss. Because we conclude that Metcalf’s appeal is resolved by virtue of the absence of fair notice, we do not address Metcalf’s second argument—that his conviction under the Gun-Free School Zones Act violates his Second Amendment rights. 

The parties [] dispute whether the Montana license that Metcalf holds complies with the federal requirements for the license exception to apply—that is, whether Montana’s licensure requirement provides “that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license.” § 922(q)(2)(B)(ii). 

Applying the traditional tools of statutory interpretation—looking to the text, its context, statutory presumptions, judicial constructions, and the canons of construction—we conclude that Metcalf offers at least a plausible reading of § 922(q)(2)(B)(ii), which would qualify him for the license exception. Given this plausible reading, the government did not establish that Metcalf was at least on notice that his Montana license—which explicitly purported to comply with the federal statute—was insufficient to except him from § 922(q)(2)(A)’s prohibition. Affirming Metcalf’s conviction would thus not only run afoul of the rule of lenity’s cautions but would also undermine the principles underlying the Supreme Court’s decision in Rehaif, and the presumption in favor of scienter.

Metcalf also finds support in constitutional avoidance and the rule of lenity, as both militate against applying § 922(q)(2)(A) here. Constitutional avoidance applies “when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Prison Legal News v. Ryan, 39 F.4th 1121, 1131 (9th Cir. 2022) (quoting Clark v. Martinez, 543 U.S. 371, 385 (2005)). The canon directs that “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); see also Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (“When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932))). The canon suggests that “courts should construe ambiguous statutes to avoid the need even to address serious questions about their constitutionality.” United States v. Davis, 588 U.S. 445, 463 n.6 (2019). 

Constitutional avoidance counsels against adopting the district court’s interpretation of § 922(q)(2)(B)(ii), even if it is the more natural reading of the statute. As explained, the statute is susceptible to at least two plausible interpretations. And as the parties’ extensive dispute over the validity of Metcalf’s conviction under § 922(q)(2)(A) lays bare, his conviction “raise[s] serious constitutional problems,” or at least “serious questions,” under the Second Amendment. Edward J. DeBartolo Corp., 485 U.S. at 575; Davis, 588 U.S. at 463 n.6; see also United States v. Allam, 140 F.4th 289, 291 (5th Cir. 2025) (addressing Second Amendment challenge to Gun-Free School Zones Act). Thus, under these circumstances, we can construe the statutory exception “to avoid such problems.” Edward J. DeBartolo Corp., 485 U.S. at 575. To be sure, the government’s proposed interpretation may be the more natural understanding of what it means for a state law enforcement authority to verify an individual’s qualifications. But “even if the Government’s reading were not the best one, the interpretation is at least ‘fairly possible’—so the canon of constitutional avoidance would still counsel us to adopt it.”

Here, as explained, Metcalf has offered a plausible reading of § 922(q)(2)(B)(ii), under which his license pursuant to Montana Code section 45-8-360 excepts him from the Gun-Free School Zones Act’s prohibition. While that alone may not be enough to trigger the rule’s application, the unique facts of this case militate in favor of its application. As Metcalf contends, he was informed by local authorities that it was permissible for him to be armed and that by possessing his firearm he was not violating the law. Metcalf then initiated a conversation with federal authorities, during which he expressed concerns about his interactions with the local officials and explained “how he has researched the law pertaining to firearms” and “went to great lengths to articulate that he follows the law.” Metcalf was also told by his state legislature, in Montana Code section 45-8-360, that he was “licensed and verified by the state of Montana within the meaning of the provisions regarding individual licensure and verification in the federal Gun-Free School Zones Act.” And before the district court’s decision in this case, there was no court decision that could have put Metcalf on notice that the license the legislature conferred upon him was, in fact, invalid to comply with federal law. Given these facts, we cannot say that Metcalf received the “fair warning … in language that the common world will understand,” with which the rule of lenity is concerned. 

Our decision today is a narrow one. Metcalf was the first, and to our knowledge, only, person in Montana to have raised the license exception in response to a charge for violating the Gun-Free School Zones Act. Our narrow conclusion results from the unique convergence of Metcalf’s plausible reading of Montana Code section 45-8-360, constitutional avoidance, the rule of lenity, and the absence of criminal notice. As one legal scholar has noted, Montana’s licensure process in section 45-8-360 is unique, and no other states of which we are aware have adopted a similar approach. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1528 & n.349 (2009). We do not purport to provide an authoritative exposition on the scope or limits of the license exception in the Gun-Free School Zones Act. We simply hold that the license exception includes at least some ambiguity given the unique facts of this case, requiring that we consider the rule of lenity and the presumption in favor of scienter as articulated in Rehaif. Here, the rule of lenity, the presumption in favor of scienter, and the principles articulated in Rehaif coalesce around one central point: fair notice. And Metcalf did not have that fair notice. We therefore conclude that the district court erred by declining to dismiss Metcalf’s indictment.

9/18/25: En banc decision in the 1326(d) context

In United States v. Rivera-Valdes, --- F.4th ---, 21-30177 (9th Cir. 2025) (en banc), the majority vacated the district court’s denial of Leopoldo Rivera-Valdes’s motion to dismiss an indictment alleging that he reentered the United States following deportation in violation of 8 U.S.C. § 1326, and remanded for further proceedings. Rivera-Valdes asserted that the underlying removal order was invalid because he was not afforded “reasonably calculated” notice of his removal hearing when the Government learned that its notice sent by certified mail was returned unclaimed.

Here is some of the helpful language from the majority opinion: 

Today we make explicit what has been implied in our prior case law. We hold that the notice afforded to noncitizens subject to removal is governed by the due process standards articulated in Mullane and Jones. Notice by the Government must be reasonably calculated to apprise noncitizens of the pendency of removal proceedings and to afford them the opportunity to be present and to participate. Jones, 547 U.S. at 226. “The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.” Mullane, 339 U.S. at 314 (internal citations omitted). Where the Government learns that its notice efforts have not succeeded, that knowledge triggers an obligation on the Government’s part to take additional reasonable steps to effect notice, if it is practicable to do so. Jones, 547 U.S. at 234. Notice is not “reasonably calculated” under the circumstances when the Government knows its method of service was ineffective and takes no additional steps to effect notice that are reasonably available to it. Id. at 227, 229.

“The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394 (1914). This “right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” Greene, 456 U.S. at 449 (quoting Mullane, 339 U.S. at 314). For that reason, “notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.” Mullane, 339 U.S. at 314 (internal citations omitted). Here, the relevant question is whether personal service of the OSC on Rivera-Valdes conveyed the “required information” which would “afford [him] an opportunity” to appear at his removal hearing and “present [his] objections.” Id. It did not

Even if Rivera-Valdes establishes a due process violation, that is not the end of the district court’s inquiry. Rivera-Valdes must demonstrate that he is entitled to relief under the other prongs of collateral attack: prejudice, administrative exhaustion, and deprivation of judicial review. See 8 U.S.C. § 1326(d); Martinez, 786 F.3d at 1230. The district court left these questions undecided, and we decline to consider them in the first instance.

Under Mullane and Jones, due process requires that the notice afforded to individuals subject to immigration removal proceedings must be reasonably calculated to inform them of the pendency of the proceedings and a meaningful opportunity to appear and to contest the charges. When the Government learned that its only attempt to notify Rivera-Valdes of the date, time, and location of his removal hearing had failed, it was not enough for the Government to throw up its hands and do nothing. The Government was obligated to take additional reasonable steps to effect notice, provided it was practicable to do so. See Jones, 547 U.S. at 234. We therefore vacate the district court’s judgment and remand for further proceedings consistent with this opinion. 

9/16/25: 4th Amend and other issues

In United States v. Bourdreau, --- F.4th ---, No. 23-4092 (9th Cir. 2025), the Court affirmed Christopher Todd Boudreau’s conviction and sentence for attempted coercion and enticement of a minor to engage in illegal sexual activity under 18 U.S.C. § 2422(b) and possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B).

Boudreau was convicted of attempted coercion and enticement of a minor to engage in illegal sexual activity under 18 U.S.C. § 2422(b) and possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B). On appeal, he challenges the district court’s denial of three pretrial motions: (1) his motion to suppress the child pornography seized from his residence; (2) his motion to sever the two charges in his indictment as improperly joined; and (3) his motion in limine to exclude evidence about a relationship that he pursued with a 17-yearold girl during the same month as his charged conduct. Boudreau also appeals the substantive reasonableness of his sentence. We affirm. 

Boudreau makes two arguments for suppressing the child pornography found at his residence. First, he contends that the warrant was not supported by probable cause to believe that child pornography would be found. Second, he contends that the affidavit supporting the warrant application contained knowingly false or reckless statements, demanding suppression under Franks v. Delaware, 438 U.S. 154 (1978).

To start, to the extent that the Government suggests the child pornography found at Boudreau’s residence should not be suppressed because the search warrant affidavit established probable cause to believe that officers would find evidence of enticement of a minor on Boudreau’s computer, this argument fails. For this argument to plausibly work, the Government must have argued that the child pornography inevitably would have been discovered because it was in plain view on Boudreau’s hard drive during the officers’ lawful search for evidence of enticement. But the Government did not cite or discuss either the inevitable-discovery exception or the plain-view doctrine. Cf., e.g., Nix v. Williams, 467 U.S. 431, 440–48 (1984) (adopting the inevitable-discovery doctrine); Arizona v. Hicks, 480 U.S. 321, 325–29 (1987) (explaining the requirements of the plain-view doctrine). Therefore, we do not address whether either principle applies here. See Fed. R. App. P. 28(a)(8), (b); Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). Instead, in this case the Government must show that the warrant application contained sufficient indicia of probable cause to believe that Boudreau possessed child pornography at his residence.

This case falls between Gourde and Dougherty. Unlike Gourde, the search warrant was not issued specifically to search for evidence of child pornography. Rather, similar to Dougherty, the supporting affidavit focused on facts related to Boudreau’s commission of a related but distinct crime— attempted enticement of a minor. Under our precedent, this alone does not establish probable cause to search his residence for evidence of any crime related to a sexual interest in children. See Dougherty, 654 F.3d at 899. But relevant facts and circumstances from a related offense may contribute to the totality of the circumstances supporting probable cause to search for evidence of child pornography. Such is the case here.

Given the totality of circumstances presented here, we conclude that the warrant, issued to search for evidence of a crime under Montana Code § 45-5-625, was supported by probable cause to believe not only that evidence of enticement would be found at Boudreau’s residence, but also evidence of child pornography.

Boudreau also argues that his motion to suppress should have been granted because Detective Wafstet knowingly or recklessly omitted from his affidavit that Boudreau used only his cellphone to communicate with “Mia” and that the cellphone had already been recovered by officers before the search warrant was sought. Bourdeau contends that this omission misled the issuing judge into believing that the search could locate an electronic device that was used to communicate with “Mia.”

Here, Boudreau’s Franks argument fails because even if Detective Wafstet knew and failed to disclose that Boudreau used only his cellphone to communicate with “Mia,”1 this omission was immaterial. As we have explained, there was probable cause to believe that Boudreau possessed child pornography. If Detective Wafstet lied or omitted material facts regarding Boudreau’s method of communication with “Mia,” it would have had no effect on the fair probability that Boudreau possessed child pornography. Either way, officers still had probable cause to search his home and seize any electronic devices capable of storing child pornography.

Next, Bourdeau argues that the district court erred by not severing the two charges in his indictment.

Of the applicable factors, the first factor carries the most weight in this case. Enticement of a minor and possession of child pornography both involve as an element that the defendant sought to engage in inappropriate sexual activities with minors, in person or voyeuristically. Our sister circuits that have addressed this issue have uniformly held that enticement of a minor is of the same or similar character to possession of child pornography.

While the Government may have been able to prove its case without Hope’s testimony, as Boudreau contends, that does not render the evidence unfairly prejudicial. Rather, it suggests that any error was harmless. See Lague, 971 F.3d at 1041. At trial, the jury heard properly admitted evidence of Boudreau’s predatory behavior toward someone he believed was 12-year-old girl. In this context, it is unlikely that Hope’s testimony caused the jury to convict Boudreau on an improper basis. 

On this record, the district court did not abuse its discretion in concluding that the sentence it imposed did not result in unwarranted sentencing disparity.