1/8/26: Question certified to the Supreme Court of California

In United States v. Soto, --- F.4th ---, No. 23-4072 (9th Cir. 2026), the Court certified to the Supreme Court of California the following question: 

When a defendant is charged with possession of a listed controlled substance under California Health & Safety Code § 11378, must the state prove, and must the jury unanimously agree, that the defendant possessed the actual listed controlled substance, and not an analog of that substance as defined under California Health & Safety Code § 11401? Or may the jury convict if it finds the state has proven the defendant possessed either the actual controlled substance or an analog of that substance, without unanimous agreement as to which?

"The issue in this case is whether defendants Anthony Soto ('Soto') and Stephen Reid ('Reid'; collectively, 'Defendants') are subject to the career-offender sentencing enhancement, U.S.S.G. § 4B1.1, because of their prior convictions under California Health & Safety Code § 11378. That issue turns on a question of California law."

"If the state must prove that a defendant possessed the actual listed controlled substance charged, and not an analog of that substance, then Defendants would be subject to the career-offender enhancement due to their prior § 11378 convictions. But if a controlled substance analog is an alternative means of proving that a defendant possessed the listed controlled substance charged, then Defendants would not be subject to the career-offender enhancement." 

The order further explains in detail why the question is important and determinative. 

1/7/26: Case on 404(b) evidence in the context of 8 U.S.C. § 1324

In United States v. Ruiz, --- F.4th ---, No. 24-386 (9th Cir. 2026), the Court affirmed Alex Ruiz’s conviction for transporting illegal aliens in violation of 8 U.S.C. § 1324, in a case in which Ruiz argued that the district court abused its discretion in admitting evidence of his previous conviction for the same crime. 

"We have developed a four-part test to decide when a prior bad act is admissible: '(1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that defendant committed the other act; and (4) (in certain cases) the act is similar to the offense charged.'"  The Court concluded the prior conviction satisfied all four prongs. 

As to the similarity prong, the Court explained, "it matters how we go about assessing similarity. One approach this court has used in answering that question is to compare the magnitude of the differences in the crimes in the current case to the differences that this court has approved as 'similar' in past cases.  Applying that framework, Ruiz’s current crime and his past conviction are similar."

"In sum, the prior conviction satisfies each prong of the test for Rule 404(b)—it tended to prove the material point of knowledge, two years is not too remote in time, the stipulation and redacted documents provided sufficient evidence of the prior bad act, and the prior crime was sufficiently similar to the offense charged. Therefore, the district court did not abuse its discretion in admitting the prior conviction under Rule 404(b)." 

1/2/26: First published criminal decision of the year

In United States v. Vazquez-Ramirez, --- F.4th ---, No. 24-3544 (9th Cir. 2026), the Court affirmed Oscar Vazquez-Ramirez’s conviction for violating 18 U.S.C. § 922(g)(5)(A), which prohibits persons “illegally or unlawfully in the United States” from possessing a firearm. Vazquez-Ramirez moved to dismiss the indictment, raising an as-applied Second Amendment challenge to § 922(g)(5)(A). 

"We join all our sister circuits in concluding that the Second Amendment does not invalidate § 922(g)(5)(A)."

As it is not necessary to resolve the issue in this case, like several of our sister circuits, we will assume without deciding that noncitizens illegally present in the United States could be considered part of “the people” protected by the Second Amendment. And like our sister circuits, we conclude that the government has met its burden to show that § 922(g)(5)(A) is consistent with the nation’s historical tradition of firearm regulation." 

Section 922(g)(5)(A) fits comfortably with the “how” and the “why” of our Nation’s regulatory tradition of disarming noncitizens and those who have not sworn allegiance to our country. See Rahimi, 602 U.S. at 692. First, the federal statute has a similar “how” to historical statutes. It disarms persons unwilling or unable to swear the oath of allegiance and loyalty to the United States. . . . Aliens cannot 'surreptitiously enter a foreign nation in violation of the immigration prerogatives of the sovereign and expect to receive all the rights and protections of the citizenry.'"

Judge Bumatay concurred because he "would hold that 'the people' refers only to 'members of the [Nation’s] political community, which categorically excludes illegal aliens."  Were that holding ultimately to carry the day in the Ninth Circuit or others, it would obviously have profound consequences for any constitutional protections currently afforded to the undocumented. 

12/22/25: Case on 2B1.1(b)(11)(A) authentication features

In United States v. Rodriguez, --- F.4th ---, No. 24-593 (9th Cir. 2025), the Court affirmed a sentence imposed on Michelle Rodriguez, who pled guilty to possession of at least 15 unauthorized access devices under 18 U.S.C. § 1029(a)(3). 

Rodriguez argued that the district court erred when it applied a four-level enhancement for possession of two California driver’s licenses under U.S.S.G. § 2B1.1(b)(11)(A)(ii), which applies if “the offense involved [] the possession or use of any . . . authentication feature.”  Her claim was that the enhancement does not apply because the prosecution did not prove that she had the requisite mens rea—that is, that she knowingly possessed the authentication features with the intent to defraud.

The Court concluded there was no error because "section 2B1.1(b)(11)(A)(ii) does not include a mens rea requirement, and thus the district court properly applied the authentication feature enhancement to Rodriguez’s sentence."

On its face, section 2B1.1(b)(11)(A) does not include a mens rea requirement. The enhancement increases a defendant’s offense level if “the offense involved [] the possession or use of any . . . authentication feature.” U.S.S.G. § 2B1.1(b)(11)(A). It does not say that the offense must involve the knowing possession of an authentication feature, or that the offense must involve the possession of an authentication feature with the intent to defraud. See id. The plain text of the enhancement requires only that the offense involve “possession,” unqualified by any descriptor of the defendant’s state of mind. 

In the end, the plain text of section 2B1.1(b)(11)(A) requires that the offense at issue involved “the possession” of an “authentication feature.” Whether Rodriguez knew she possessed the driver’s licenses bearing the authentication features or not, the authentication feature enhancement applies

We hold that section 2B1.1(b)(11)(A) applies to the simple possession of an authentication feature and does not require proof of a particular mens rea. Because Rodriguez concedes that she possessed two California driver’s licenses and that the driver’s licenses bore “authentication features,” the district court did not abuse its discretion by applying the enhancement to her sentence. 

12/19/25: Federal murder case

In United States v. Justus, --- F.4th ---, No. 24-1641 (9th Cir. 2025), the Court affirmed Robert Alvin Justus, Jr.’s convictions for aiding and abetting the murder of a person assisting a federal officer and aiding and abetting attempted murder of a person assisting a federal officer, in violation of 18 U.S.C. §§ 1114(1), 1114(3), 1111, and 1112.

During a Goerge Floyd protest in 2020, Justus drove a van while Steven Carrillo fired nineteen rounds from an assault rifle at two Protective Security Officers on duty at a federal courthouse. One officer died, and the other was permanently disabled.

At trial, the government presented 73 exhibits from Justus’s social media activity to support its theory that Justus and Carrillo pre-planned the attack as part of their anti-government ideology.

Prior to trial, the district court reviewed each piece of social media evidence and extensively questioned the government on its intended use.  On appeal, Justus argued that the district court erred in admitting this social media evidence because it was irrelevant, constituted improper character evidence, and was highly prejudicial.

We conclude that Justus’s social media posts and communications were relevant to the crime charged. First, Justus’s advocacy for violence and physical attacks of law enforcement and the courts made it more probable that he intentionally aided Carrillo in the shooting of the officers. Second, the posts in which Justus used “Boogaloo” language supported the government’s theory that Justus participated in the attack to further the Boogaloo movement."

Because the social media evidence tended to make Justus’s intent to commit the crime more probable, the district court did not abuse its discretion in finding the evidence relevant and admissible under Rule 401." 

Justus also argues that the social media posts constituted improper character evidence because the government used the evidence to “inform the jury of Justus’s ‘beliefs.’” See Fed. R. Evid. 404. 

The district court did not abuse its discretion in finding that the evidence was not impermissible character evidence because it established Justus’s growing animosity toward the federal government and desire to commit violence against government actors, and not a specific character trait or criminal propensity. Further, the evidence was not offered to establish that Justus acted in accordance with a specific character trait. 

Although the district court did not explicitly discuss Rule 403 in its written order regarding the social media evidence, the record shows that it engaged in this analysis. The district court extensively reviewed the probative value of the evidence in the context of the parties’ Rule 403-related arguments and explicitly acknowledged Justus’s argument that the evidence “would be unfairly prejudicial if admitted” when making its ruling. Further, the district court referenced Rule 403 in its written order on the other motions in limine. Finally, the court explicitly weighed the probative value and prejudice of similar evidence found on Justus’s phone during trial. Thus, the record clearly shows that the district court considered the potential prejudice of the social media evidence and implicitly conducted a Rule 403 analysis.

Finally, the district court did not abuse its discretion in admitting the social media evidence under Rule 403. The government admitted seventy-three posts and conversations, but they were not redundant. Many of the posts focused on separate issues related to Justus’s intent, including his involvement with the Boogaloo movement, his desire to harm government officials and the courts, and his intent to take specific action and make or use weapons. Additionally, the numerous posts supported the government’s theory that Justus’s statements and animosity toward law enforcement escalated over time. The evidence was therefore relevant and admissible. 

The Court also discussed and rejected several other arguments. 

12/17/25: Deciding Service officers in administrative removal proceedings are not inferior officers subject to the Appointments Clause

In United States v. Avalos, --- F.4th ---, No. 23-3944 (9th Cir. 2025), the Court affirmed the district court’s denial of Jorge Alejandro Avalos’s motion to dismiss an indictment charging him with illegal reentry under 8 U.S.C. § 1326.

The issue was whether Avalos's underlyng administrative removal proceedings were fundamentally unfair because the deciding Service officer who issued the final administrative removal order was an “inferior Officer” under the Appointments Clause of the U.S. Constitution and had not been properly appointed.

At issue on appeal is whether deciding Service officers in administrative removal proceedings are “inferior Officers” subject to the requirements of the Appointments Clause of the United States Constitution. U.S. Const., art. II, § 2, cl. 2; 8 C.F.R. § 238.1. We hold that they are not.

Avalos’s primary argument is that his underlying administrative removal proceeding resulted in the entry of a deportation order that was “fundamentally unfair” under § 1326(d)(3) because the deciding Service officer in that proceeding was an inferior officer who was not properly appointed under the Appointments Clause. The Appointments Clause provides that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Const., art. II, § 2, cl. 2.  While officers must be appointed in accordance with the Appointments Clause, the Constitution “cares not a whit” about who hires non-officer employees to their positions. 

The Supreme Court has identified two considerations for distinguishing between officers and employees. First, officers occupy “continuing position[s] established by law.” Id. (citing United States v. Germaine, 99 U.S. 508, 511–12 (1879)). Second, officers exercise “significant authority pursuant to the laws of the United States.” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam)). This inquiry “focuse[s] on the extent of power any individual wields in carrying out his assigned functions.” Id.

We turn to the two considerations for determining whether individuals are officers or employees: (1) whether the individual holds a continuing position established by law, and (2) whether the individual exercises significant authority pursuant to the laws of the United States. Lucia, 585 U.S. at 245. Considering each in turn, we hold that deciding Service officers neither occupy a continuing position nor exercise significant authority, and therefore are not inferior officers. 

12/10/25: possessing or transferring a machinegun, 18 U.S.C. § 922(o)

In United States v. Kittson, --- F.4th ---, No. 23-4132 (9th Cir. 2025), a divided Court affirmed Daniel Matthew Kittson’s conviction for possessing or transferring a machinegun in violation of 18 U.S.C. § 922(o).

Kittson was arrested as part of a sting operation.  He argued that section 922(o) was inapplicable because he transferred a machinegun to a federal agent.  The majority rejected his argument. 

Relevant here, § 922(o)(1) provides that “it shall be unlawful for any person to transfer or possess a machinegun.” But the prohibition does not apply to “a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof.” § 922(o)(2)(A). 

The majority held that the exceptions in § 922(o)(2) are “extremely limited” (citation omitted)), and only apply to transfers “authorized by the government for the benefit of federal, state, or local government entities.”  In short, "the involvement of an undercover agent does not shield a defendant from liability."  (The dissent disagreed on this point). 

The majority further held that the statute was not unconstitutional under the Second Amendment because “machine guns are ‘dangerous and unusual weapons’ that are unprotected by the Second Amendment.”