8/12/25: Due process and Rule 702

 The Ninth released seven published decisions today.  There was one habeas opinion, but the rest were civil.  The habeas decision is worth noting because it is a grant and one of the civil cases is worth summarizing because it deals with experts under Fed. R. Evid. 702. 

First, in Bieganski v. Shinn, --- F.4th ---, No. 23-1982 (9th Cir. 2025), the Court reversed the district court’s denial of Bradley Bieganski’s habeas petition challenging his Arizona jury conviction for child molestation and remanded with instructions to issue a writ of habeas corpus under 28 U.S.C. § 2254.

The Court held that Arizona’s statutory scheme unconstitutionally shifted the burden of disproving an essential element of the crime of child molestation to the defendant, contrary to the Due Process Clause of the Fourteenth Amendment.  It is a long opinion.  Here is some of the key language.  

The question in this habeas case is whether Arizona’s statutory scheme unconstitutionally shifted the burden of disproving an essential element of the crime of child molestation to the defendant, contrary to the Due Process Clause of the Fourteenth Amendment as established in the Supreme Court’s decisions in, inter alia, Patterson v. New York, 432 U.S. 197 (1977); Mullaney v. Wilbur, 421 U.S. 684 (1975); and In re Winship, 397 U.S. 358 (1970). The district court concluded that the scheme did not violate the Due Process Clause. We reverse. 

The sole issue on appeal is whether Arizona’s former child molestation scheme—in which any knowing or intentional touching of a child was considered child molestation unless the defendant proved by a preponderance of the evidence that he lacked any sexual motivation—shifts the burden of proving an essential element of the offense of child molestation to the defendant in violation of the Due Process Clause of the Fourteenth Amendment. 

“[T]here are obviously constitutional limits beyond which the States may not go . . . .” Patterson, 432 U.S. at 210. But the constraints are few. The two principal constraints on state criminal laws are the Equal Protection and Due Process Clauses of the Fourteenth Amendment, which secure equality and fairness to “any person” subject to the state’s jurisdiction. U.S. Const. amend. XIV, § 1. Only the Due Process Clause is at issue here. That Clause provides that “no State shall . . . deprive any person of life, liberty, or property, without due process of law.” Id. The phrase “due process of law” is a capacious phrase including “the best ideas of all systems and of every age . . . to draw its inspiration from every fountain of justice.” Hurtado v. California, 110 U.S. 516, 531 (1884).

The principle of due process at issue here is that “[g]uilt in a criminal case must be proved beyond a reasonable doubt,” Brinegar v. United States, 338 U.S. 160, 174 (1949), as to “every fact necessary to constitute the crime charged,” Davis v. United States, 160 U.S. 469, 493 (1895). That standard preserves “the presumption of innocence.” Winship, 397 U.S. at 363. The states, as we have noted, have broad leeway in determining what facts are “necessary to constitute the crime charged.” Id. The Court has warned that “we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States,” as it is their business “to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion.” Patterson, 432 U.S. at 201 (quoting Speiser v. Randall, 357 U.S. 513, 523 (1958)). 

Nevertheless, the Court has also been clear that even if “the Due Process Clause d[oes] not invalidate every instance of burdening the defendant with proving an exculpatory fact,” Patterson, 432 U.S. at 203 n.9, there is “some limit upon state authority to reallocate the traditional burden of proof,” Jones v. United States, 526 U.S. 227, 241 (1999) (citations omitted).

A state is not required to prove “the nonexistence of all affirmative defenses[.]” Patterson, 432 U.S. at 210. Rather, “[t]he State is foreclosed from shifting the burden of proof to the defendant only ‘when an affirmative defense does negate an element of the crime.’” Smith, 568 U.S. at 110 (quoting Martin v. Ohio, 480 U.S. 228, 237 (1987) (Powell, J., dissenting)). A state cannot exercise “unlimited choice over characterizing a stated fact as an element,” because that “would leave the State substantially free to manipulate its way out of Winship.” Jones, 526 U.S. at 240–41.

These are necessarily general prescriptions. In Morrison, the Court acknowledged that “[t]he decisive considerations are too variable, too much distinctions of degree, too dependent in last analysis upon a common sense estimate of fairness . . . to be crowded into a formula.” 291 U.S. at 91. Nevertheless, just this year the Court reminded us that “[g]eneral legal principles can constitute clearly established federal law for purposes of AEDPA” even if those principles lack “precise contours.” Andrew, 145 S. Ct. at 82 (quoting Lockyer, 538 U.S. at 72). We must therefore determine whether the Arizona Supreme Court unreasonably applied these general principles.

We have profound concerns with the substance of the Arizona scheme, and with the Arizona Supreme Court’s analysis in Holle II. Those concerns persuade us that Arizona has shifted the burden of proving the only fact that really matters in child molestation cases—whether the defendant touched the child’s private parts with some kind of sexual motive. That fact is the only evidence that is morally inculpatory, what the Supreme Court referred to in the burden-shifting cases as the proof of “sinister significance.” 

Without the affirmative defense, child molestation in Arizona would be a strict liability crime: touch the child, you are a child molester. That is a dramatic, but not a hyperbolic, conclusion. And it was in its discussion of the affirmative defense that the Arizona Supreme Court sowed the undoing of its own analysis. The court acknowledged that “the criminal code should clearly differentiate between unlawful conduct and innocent, acceptable behavior.” Holle II, 379 P.3d at 206. The problem is that § 13-1410 contemplates no “innocent, acceptable behavior.” The statute is so broad that every knowing or intentional touching of a child’s genitals is “unlawful conduct.” 

First, citizens are not left to “the mercy of noblesse oblige.” United States v. Stevens, 559 U.S. 460, 480 (2010). The Supreme Court has warned us that courts should not “construe a criminal statute on the assumption that the Government will ‘use it responsibly.’” McDonnell v. United States, 579 U.S. 550, 576 (2016) (quoting Stevens, 559 U.S. at 480). And, most recently, in Trump v. United States, the Court repeated that courts should not “decline to decide significant constitutional questions based on the Government’s promises of good faith” in prosecutorial decisions. 603 U.S. 593, 637 (2024). The Arizona Supreme Court cannot avoid the implications of its analysis by assuring us that Arizona prosecutors will act responsibly.

Arizona’s child molestation scheme is not just broad, it is pernicious. It criminalizes every knowing or intentional touching of a child’s private parts, no matter the reason. Everyone who knowingly changes a diaper could be convicted of child molestation, even when the state’s proof of that fact is not proof of any evil interest, but only of “traditionally lawful conduct.”

Arizona has foisted the burden of proving the sexual motivation of the defendant on the defendant himself. This the state cannot do consistent with the Due Process Clause. “[E]very fact necessary to constitute the crime” charged must be proven by the state “beyond a reasonable doubt.” Winship, 397 U.S. at 364. The Supreme Court cases clearly establish that Arizona cannot shift the burden of proof to the defendant. See Smith, 568 U.S. at 110; Mullaney, 421 U.S. at 698; Morrison, 291 U.S. at 88, 90. Although the prohibition on burden-shifting is a general principle, “[g]eneral legal principles can constitute clearly established federal law for purposes of AEDPA . . . .” Andrew, 145 S. Ct. at 82. That said, we think there are several Supreme Court cases that amply demonstrate that Arizona has crossed the line in this instance.  

These cases clearly establish that the state is responsible for proving beyond a reasonable doubt the critical facts that establish the crime. Although § 13-1410 defines child molestation as “any touching” of a child’s genitals, the statute only requires the state to prove that the defendant “intentionally and knowingly” touched the child. In Arizona the fact of touching is essential to proving the crime, but everyone implicitly understands that it is not the sine qua non of child molestation and, absent some indication that the defendant touched the child with sexual interest, the touching will not be prosecuted. 

The core of child molestation in Arizona is that the defendant did so with sexual interest. That has historically been true in Arizona, see Part I.A., supra, and “Arizona stands alone among all United States jurisdictions in allocating the burden of proof this way,” May, 245 F. Supp. 3d at 1149. Without the element of sexual interest, the Arizona Supreme Court told us, we only have a “technical[]” violation of the statute that would be “improper[]” to prosecute. See Holle II, 379 P.3d at 206. What distinguishes a technical from a non-technical violation is, precisely, whether the defendant can successfully assert the affirmative defense of lack of sexual motivation. But the state is not required to prove the defendant’s sexual interest. Holle II makes clear that the fact is effectively presumed. This is a straightforward violation of clearly established due process principles, as determined by the U.S. Supreme Court. “Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.” Patterson, 432 U.S. at 215. 

In the end, once we pierce the form of the state’s scheme, we have little difficulty concluding that Arizona has shifted the burden of proof from the state to the defendant to prove a core element of child molestation—that the defendant touched the child’s private parts with some kind of sexual interest. Arizona has done so in violation of the Due Process Clause of the Fourteenth Amendment, as clearly established in decisions of the United States Supreme Court. 28 U.S.C. § 2254(d)(1). In Bieganski’s case, the Arizona Court of Appeals was bound by Holle II. For the reasons we have explained, Holle II identified the correct legal principles in the Supreme Court’s cases, but its application of those principles to § 13-1410 was an objectively unreasonable one. See Williams, 529 U.S. at 413.  

Next, in Engilis v. Monsanto Company, --- F.4th ---, No. 23-4201 (9th Cir. 2025), the Court affirmed the district court’s summary judgment in favor of Monsanto Company.  It held that the district court did not abuse its discretion in excluding the opinion of an expert witness.  Here is some of the relevant language.

Here, the district court concluded the expert’s differential etiology was unreliable pursuant to Federal Rule of Evidence 702 because the expert failed to reliably rule out obesity as a potential cause of Peter Engilis’s cancer. We affirm.  

The parties agree that the admissibility of expert testimony is controlled by Federal Rule of Evidence 702. See Elosu v. Middlefork Ranch Inc., 26 F.4th 1017, 1023 (9th Cir. 2022). That Rule provides that, “before admitting expert testimony, the district court must perform a gatekeeping role to ensure that the [proffered] testimony is both relevant and reliable.”

In 2000, Rule 702 was amended for the first time to codify the holdings of the Daubert trilogy, and to resolve conflicts that had arisen within the courts about the meaning of that trilogy. Fed. R. Evid. 702 advisory committee’s note to 2000 amendment; Fern M. Smith, Report of the Advisory Committee on Evidence Rules 6–7 (1999) [hereinafter May 1, 1999 Report], https://perma.cc/LH3V-5GBB. The amendment “clearly envision[ed] a more rigorous and structured approach” to Rule 702 than some courts were then employing. May 1, 1999 Report at 7. It “affirm[ed] the trial court’s role as gatekeeper and provide[d] some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony.” Fed. R. Evid. 702 advisory committee’s note to 2000 amendment.

The Rule was [] amended again in December 2023 to expressly require a proponent of expert testimony to “demonstrate[] to the court that it is more likely than not that” the four admissibility requirements are satisfied. Fed. R. Evid. 702 (2023). The amendment also modified subsection (d), which now requires that “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” Id.

This amendment sought to “clarify and emphasize” that proffered expert testimony must meet the admissibility requirements of Rule 702 by a preponderance of the evidence. Fed. R. Evid. 702 advisory committee’s note to 2023 amendment. Before the amendment, “many courts” had erroneously held “that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility.” Id. Properly applied, Rule 702 requires that challenges to an expert’s opinion go to the weight of the evidence only if a court first finds it more likely than not that an expert has a sufficient basis to support an opinion. Id. The amendment also aimed “to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.” Id. “Judicial gatekeeping is essential” to ensure that an expert’s conclusions do not “go beyond what the expert’s basis and methodology may reliably support.” Id. As the Advisory Committee’s note explains, the amendment did not “impose[] any new, specific procedures,” and was “simply intended to clarify” existing law. Id.

[I]nsofar as the parties argue about the degree to which the amendments establish, or refute, that Rule 702 is a “liberal” standard that favors admission as “the rule, not the exception,” we confirm that a proponent of expert testimony must always establish the admissibility criteria of Rule 702 by a preponderance of the evidence and that there is no presumption in favor of admission.  

Several of our cases have stated that “Rule 702 should be applied with a ‘liberal thrust’ favoring admission.” Messick, 747 F.3d at 1196 (quoting Daubert, 509 U.S. at 588); Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1232 (9th Cir. 2017). Rule 702 liberalized the admission of expert testimony as compared to the Frye test, but it did not establish a categorical preference for admitting expert testimony. 

Our case law should not be understood to suggest a presumption of admission. There is no such presumption, as a proponent of expert testimony must always establish the admissibility requirements of Rule 702 by a preponderance of the evidence. See Fed. R. Evid. 702 (2023). 

We have also stated that, where experts’ opinions “are not the ‘junk science’ Rule 702 was meant to exclude,” Wendell, 858 F.3d at 1237 (citation omitted), “the interests of justice favor leaving difficult issues in the hands of the jury and relying on the safeguards of the adversary system . . . to ‘attack[] shaky but admissible evidence,’” id. (quoting Daubert, 509 U.S. at 596). To be sure, Rule 702 is concerned with “the soundness of [the expert’s] methodology,” rather than “the correctness of the expert’s conclusions.” Primiano, 598 F.3d at 564 (citation omitted). But “shaky” expert testimony, like any expert testimony, must still be “admissible,” and this requires a determination by the trial court that it satisfies the threshold requirements established by Rule 702.  

Only “[i]f the proposed testimony meets the thresholds of relevance and reliability” is its proponent “entitled to have the jury decide upon its credibility.” Elosu, 26 F.4th at 1024 (citation modified). The district court “cannot abdicate its role as gatekeeper,” nor “delegat[e] that role to the jury.”

Consistent with the 2023 amendment, our precedent establishes that Rule 702 requires a proponent of expert testimony to demonstrate each of the requirements of Rule 702 by a preponderance of the evidence.

The district court’s “responsibility to screen expert testimony,” Elosu, 26 F.4th at 1020, encompasses the requirement that expert testimony be “based on sufficient facts or data,” Fed. R. Evid. 702(b). This element “requires foundation.” Elosu, 26 F.4th at 1025. The “key inquiry” is “whether an expert had sufficient factual grounds on which to draw conclusions.” 

8/4/25: Duplicity

In United States v. Bradford, --- F.4th ---, No. 23-4111 (9th Cir. 2025), the Court affirmed Donavin Dwayne Bradford’s conviction and sentence for multiple crimes related to sex trafficking several victims, including minors.

A duplicitous indictment can result in numerous “vice[s].” United States v. Starks, 515 F.2d 112, 116–17 (3d Cir. 1975). For example, if an indictment contains a duplicitous count, then “a general verdict for a defendant on that count does not reveal whether the jury found him not guilty of one crime or not guilty of both,” and such an outcome “could prejudice the defendant in protecting himself against double jeopardy.” Id. at 116. Conversely, “a general verdict of guilty does not disclose whether the jury found the defendant guilty of one crime or of both,” which “could prejudice the defendant in sentencing and in obtaining appellate review.” Id. “Duplicity may also give rise to problems regarding the admissibility of evidence, including its admissibility against one or more codefendants.” UCO Oil, 546 F.2d at 835. And further, “there is no way of knowing with a general verdict on two separate offenses joined in a single count whether the jury was unanimous with respect to either.” Starks, 515 F.2d at 117.

Here, Bradford argues that Counts 1 and 2 of the superseding indictment were duplicitous because, in addition to charging him with violating § 1591 by sex trafficking a minor according to the statute’s lengthy list of other verbs,3 they also charged him with violating § 1591 by advertising—something that he argues is a separate crime prohibited by the same statute. Bradford argues that, consequently, he may have been subjected to several of the vices of duplicity.

We reject Bradford’s arguments because § 1591 does not proscribe sex trafficking a minor via advertising as a separate and distinct crime; therefore, neither count in the superseding indictment is duplicitous and Bradford was not deprived of any defense.

[C]ase law does not support Bradford’s broad argument that a statute that includes multiple scienter requirements always establishes multiple crimes.  

Because sex trafficking a minor by advertising the minor for commercial sex with the knowledge that the minor is under the age of eighteen is merely an alternate means by which a defendant can violate § 1591, the statute defines only one offense. We hold that Counts 1 and 2 of the superseding indictment are not duplicitous.

We hold that sex trafficking a minor by advertising is not a separate and distinct crime under 18 U.S.C. § 1591; rather, it is one of the various means by which the statute can be violated. Therefore, Counts 1 and 2 of the superseding indictment are not duplicitous. We also hold that Bradford failed to show procedural or substantive error in his sentence.

7/22/25: Case on proving the defendant's identity

In United States v. Hassan, --- F.4th ---, No. 24-263 (9th Cir. 2025), the Court affirmed Mohamed Ahmed Hassan’s benchtrial convictions on four counts of bank robbery. 

Mohamed Ahmed Hassan appeals from his bench-trial convictions on four counts of bank robbery, in violation of 18 U.S.C. § 2113(a). All four robberies were caught on surveillance cameras. We address today the narrow question of whether the Sixth Amendment’s guarantee of a fair trial permits the trier of fact to compare photographs or video recordings of the culprit with the defendant’s in-court appearance for identification purposes. For the reasons below, we hold that it does.

Hassan raises two issues on appeal. First, Hassan argues that the district court impermissibly relied on extrinsic evidence in violation of his Sixth Amendment right by comparing the video footage to his in-court appearance, descriptions of which were not introduced into the record. Second, and in the alternative, Hassan argues that the evidence was insufficient to support his conviction. 

We are not persuaded. We conclude that the trier of fact may properly identify a defendant by comparing his observable appearance to photographic representations of the culprit. The visual comparison made by the district court, along with other available information about the robber, was sufficient evidence of Hassan’s guilt. We affirm. 

The Sixth Amendment guarantees “the defendant’s right of confrontation, of cross-examination, and of counsel.” Turner v. Louisiana, 379 U.S. 466, 473 (1965). This right to a fair trial entails that “a jury’s verdict must be based upon the evidence developed at the trial.” Id. at 472 (internal quotation marks omitted). We have thus held that “[e]vidence not presented at trial, acquired through out-of-court experiments or otherwise, is deemed ‘extrinsic.’” United States v. Navarro-Garcia, 926 F.2d 818, 821 (9th Cir. 1991). A new trial is warranted if there is “a reasonable possibility that the extrinsic material could have affected the verdict.”

[T]he district court did not rely on extrinsic evidence by observing Hassan in person and comparing his appearance with the robber in the surveillance video footage. The very point of evidence like the video footage presumes such a comparison. 

“Identification of the defendant as the person who committed the charged crime is always an essential element which the government must establish beyond a reasonable doubt.” United States v. Alexander, 48 F.3d 1477, 1490 (9th Cir. 1995). A witness’s in-court identification is not necessary; “[i]dentification can be inferred from all the facts and circumstances that are in evidence.” Id. (quoting United States v. Weed, 689 F.2d 752, 754 (7th Cir. 1982)). We conclude that sufficient evidence supported Hassan’s identity as the robber, the only element challenged by Hassan on appeal.

The district court did not rely on extrinsic evidence to identify Hassan as the culprit, and sufficient evidence supported that finding. We therefore affirm the judgment of conviction on all counts. 

7/21/25: Compassionate release case on what is an “extraordinary and compelling” reason for relief under U.S.S.G. § 1B1.13.

In United States v. Bryant, --- F.4th ---, No. 24-3039 (9th Cir. 2025), the Court affirmed the district court’s denial of Donnie Bryant’s motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). 

When he was sixteen, Donnie Bryant participated in a gang-related shooting for which he was sentenced to 70 years’ imprisonment. Decades later, he moved for compassionate release, arguing that his youth at the time of his offense is an “extraordinary and compelling” reason for relief. 18 U.S.C. § 3582(c)(1)(A)(i). Because youth does not qualify as “extraordinary and compelling” under § 1B1.13 of the Sentencing Guidelines, we affirm.

This appeal raises three questions, all with the same answer. Is a defendant’s youth at the time of his offense an extraordinary and compelling reason for compassionate release? No. How about a sentencing disparity with a codefendant? Also no. And were Bryant’s § 924(c) convictions “stacked” in violation of the First Step Act? No again.

Start with youth. 2 Section 1B1.13 defines “extraordinary and compelling” in several subsections. See U.S.S.G. § 1B1.13(b)(1)–(5). Because § 1B1.13 now binds 2 The Government argues that Bryant did not properly raise the youth issue in his compassionate release motion. We disagree. The motion consistently framed Bryant’s juvenile status as an independent reason for a reduced sentence. defendant-filed motions, see supra, at 6, we must decide whether any of its subsections can be read to encompass a defendant’s youth. If not, then youth cannot satisfy the first condition for compassionate release. See Wright, 46 F.4th at 945 (citing § 3582(c)(1)(A)(i)).

[T]he only way youth can qualify as extraordinary and compelling is through subsection (b)(5): the “Other USA V. BRYANT 11 Reasons” provision. Subsection (b)(5) is narrow. It only covers a “circumstance or combination of circumstances” that is “similar in gravity” to those described above. Id. § 1B1.13(b)(5). The question, then, is whether a defendant’s youth at the time of his offense is “similar in gravity” to the other circumstances in § 1B1.13. Id. 

We think not. The circumstances in § 1B1.13 address situations where continued incarceration risks a defendant’s health or safety, § 1B1.13(b)(1)–(2), (4), or would severely burden third parties unable to care for themselves, § 1B1.13(b)(3). That a defendant was a minor when he committed his crime—which, in many cases, occurred years or even decades ago—does not raise similar concerns.

That does not mean, however, that youth can never be considered in ruling on a motion for compassionate release. As the preceding discussion shows, the fact that a defendant was a minor at the time of his offense can be considered when weighing the § 3553(a) factors at the third step of the compassionate release analysis. See 18 U.S.C. § 3553(a) (considerations include the “history and characteristics of the defendant”). The third step is where district courts consider facts that existed at sentencing. But youth is not an extraordinary and compelling reason at step one, which focuses instead on developments that occur after a defendant USA V. BRYANT 13 has been sentenced. So long as a defendant identifies an extraordinary and compelling reason that fits within § 1B1.13’s binding framework, a district court could decide under § 3553(a) that a defendant’s youth is another factor supporting compassionate release. The statute allows for that possibility. 

What the statute does not allow is contorting the extraordinary-and-compelling-reasons requirement to convert compassionate release into an “unbounded resentencing” mechanism. Hunter, 12 F.4th at 570. In enacting § 3582(c)(1)(A), Congress did not authorize district courts to take a second bite at the sentencing apple. Rather, compassionate release is a limited, discretionary exception to the default rule that a federal defendant will serve his entire sentence. See Dillon v. United States, 560 U.S. 817, 819 (2010).

Next is Bryant’s argument based on the 35-year disparity between his sentence and that of his codefendant, Toliver. Like Bryant, Toliver was sentenced on several VICAR and § 924(c) counts. Years later, Toliver was resentenced to 35 years’ imprisonment based on an agreement in which he pleaded guilty to a different firearm count. So while Toliver and Bryant were convicted for offenses arising out of the same incident, Toliver’s final judgment and corresponding sentence are different.

Toliver’s sentence is not 35 years shorter than Bryant’s because he benefited from changes in the law; his sentence was reduced in exchange for pleading guilty. Toliver’s cooperation is not an extraordinary and compelling reason for Bryant’s release.

Finally, we turn to Bryant’s contention that his sentence was impermissibly “stacked” as to his § 924(c) convictions, and that this is an extraordinary and compelling reason for compassionate release. Bryant’s argument rests on a false premise: he is not serving a “stacked” sentence.

Bryant, a first-time § 924(c) offender, did not receive a stacked sentence for his three § 924(c) convictions. Because he discharged a firearm, each of those convictions came with a ten-year mandatory minimum sentence, 18 U.S.C. § 924(c)(1)(A)(iii), which, by law, must run consecutively, id. § 924(c)(1)(D)(ii). The district court treated each violation as a first offense, thus imposing a 30-year sentence with ten years on each count. Bryant never received the 25- year enhanced sentence for a “second or subsequent” conviction. So Bryant’s sentence does not implicate the First Step Act’s revisions to § 924(c).

A defendant’s youth at the time of his offense is not “extraordinary and compelling” under § 1B1.13. See 18 U.S.C. § 3582(c)(1)(A)(i). Nor is a sentencing disparity that stems from a codefendant’s guilty plea. And we do not credit Bryant’s novel conception of § 924(c) stacking.

7/17/25: Interesting sentencing decision and concurrence

In United States v. Ghanem, --- F.4th ---, No. 22-50266 (9th Cir. 2025), the Court affirmed the 360-month sentence imposed at resentencing on six counts to which Rami Ghanem pleaded guilty in a case in which he sought to export military equipment from the United States to Libya. 

In a prior appeal, the Court vacated Ghanem's jury conviction for conspiring to acquire, transport, and use surface-to-air missiles in violation of 18 U.S.C. § 2332g.  The government then dismissed the charge.  But on remand for resentencing, the district court again imposed the same 360-month sentence, despite the fact that the Guidelines range was only 70-97 months.  The most interesting part of the opinion is the concurrence, discussed at the end of this email. 

After undercover federal agents conducted a sting operation in which Defendant Rami Ghanem sought to export military equipment from the United States to Libya, Ghanem pleaded guilty to two counts of violating the Arms Export Control Act (“AECA”), see 22 U.S.C. § 2778; one count of conspiring to violate the AECA and its regulations, see 18 U.S.C. § 371; one count of unlawful smuggling, see 18 U.S.C. § 554; and two counts of money laundering, see 18 U.S.C. § 1956(a)(2)(A). But Ghanem proceeded to trial on a remaining charge that he had conspired to acquire, transport, and use surface-to-air anti-aircraft missiles (again for use in Libya) in violation of 18 U.S.C. § 2332g, which carries a 25-year mandatory minimum. Ghanem was found guilty and was sentenced to 360 months of imprisonment, which was within the applicable guidelines range of 292– 365 months. The 360-month total sentence rested on two independent concurrent groups of sentences: (1) a 360- month sentence for the § 2332g count alone; and (2) a package of concurrent and consecutive sentences on the remaining six counts that also yielded an aggregate 360- month sentence. 

On appeal, we vacated Ghanem’s § 2332g conviction due to a defective jury instruction on venue, and we remanded for resentencing. United States v. Ghanem, 993 F.3d 1113 (9th Cir. 2021). At resentencing on the remaining six counts, the district court calculated the guidelines range as now being 78–97 months. Nonetheless, the court ultimately adopted the same above-described second package of sentences as before, and Ghanem was once again sentenced to 360 months of imprisonment. 

Ghanem appeals, challenging his sentence on multiple grounds. We affirm. 

Ghanem contends that the district court erred in failing to reduce his offense level by two levels under U.S.S.G. § 3E1.1 for acceptance of responsibility.

Considering the district court’s comments in full context, we reject Ghanem’s effort to attach talismanic significance to the omission of this one word. The overall thrust of the court’s recitation reflects its awareness that the central question was whether there was “conduct of [Ghanem] that is inconsistent with . . . acceptance of responsibility” and that “outweighs” the showing otherwise established by his guilty plea and truthful admission to the factual basis for the convictions. Id. We are therefore satisfied that the court applied the correct legal standards under Green. 

Moreover, we discern no clear error in the district court’s ultimate finding that there was sufficient countervailing evidence that Ghanem had failed to accept responsibility. Conduct that is “inconsistent” with acceptance of responsibility “can include, for example, falsely denying, or frivolously contesting, relevant conduct that the court determines to be true.” 

Ghanem’s remaining procedural challenges all relate to the district court’s decision to depart and vary from the guidelines range. We conclude that these challenges also fail.

First, Ghanem contends that the district court procedurally erred by “fail[ing] adequately to explain the sentence selected, including any deviation from the [g]uidelines range.” United States v. Taylor, 78 F.4th 1132, 1136 (9th Cir. 2023) (citation omitted). However, “[a] district court need not provide a lengthy explanation of the [sentencing] factors in order for its explanation to be sufficient.” United States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010). Instead, it need only “set forth enough to satisfy the appellate court that [it] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decision-making authority.” Rita v. United States, 551 U.S. 338, 356 (2007). Under that standard, the district court’s explanation was sufficient.

Second, Ghanem argues that the district court failed to address his argument that a significant upward deviation from the guidelines was inconsistent with 18 U.S.C. § 3553(a)(6), which requires courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” The record refutes this contention.

Third, Ghanem argues that, even if consideration of the conduct underlying a dismissed charge is constitutionally permissible at a sentencing on the remaining charges, such consideration should be disallowed as procedurally unreasonable where “the sentencing enhancement [is] ‘a tail which wags the dog of the substantive offense.’” We disagree.

Fourth, Ghanem argues that the district court erred “by relying on foreign conduct that may not have even been criminal.” Ghanem relies on United States v. Chao Fan Xu, 706 F.3d 965 (9th Cir. 2013), which held that, under the circumstances of that case, the district court procedurally erred in basing the defendant’s guidelines offense level on foreign fraudulent conduct that did not violate extraterritorially applicable U.S. law. Id. at 992–93.5 This principle has no application to the district court’s consideration of the conduct underlying the dismissed § 2332g charge, because we explicitly held, in Ghanem’s prior appeal, that this statute does apply extraterritorially to Ghanem’s overseas conduct.

Ghanem also argues that the district court’s 360-month sentence was substantively unreasonable. We find no abuse of discretion here. [W]e conclude that the district court did not abuse its discretion in concluding that a 360-month sentence was warranted under the § 3553(a) factors. The district court permissibly put great weight on the fact that the offense conduct, which specifically concerned planned unlawful arms exports to Libya, was part of a broader pattern of high-volume, black-market arms-trafficking. 

Finally, Ghanem argues that, under Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, his sentence is unconstitutional in violation of the Fifth Amendment Due Process Clause and the Sixth Amendment right to a jury trial.

To the extent that Ghanem argues that there is something uniquely suspect about relying on conduct underlying a dismissed charge, his argument cannot be squared with Watts. There, the Court held that conduct underlying a charge of which the defendant was acquitted may be considered at sentencing, where the burden of proof is only a preponderance of the evidence. Ghanem has presented no argument as to why conduct underlying a dismissed charge should be treated with more solicitude than conduct underlying a charge rejected by acquittal.

Ghanem also argues, however, for a broader Sixth Amendment rule that would equally apply to conduct underlying acquittals and dismissed charges and, indeed, to any conduct not found by a jury or admitted by the defendant. Specifically, Ghanem urges us to adopt Justice Scalia’s view that “any fact necessary to prevent a sentence from being substantively unreasonable [under Booker]— thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury.” Jones v. United States, 574 U.S. 948, 949–50 (2014) (Scalia, J., dissenting from the denial of certiorari) (emphasis added). Given the loadbearing weight that we have placed on the district court’s factual findings in concluding that Ghanem’s sentence is substantively reasonable, his sentence here would violate the Sixth Amendment under Justice Scalia’s view. 

But Justice Scalia’s position has not commanded a majority of the Supreme Court, and this court has squarely rejected it.

Concurring in his own opinion, Judge Collins wrote "separately only to point out how this case starkly illustrates a very troubling feature of the precedent we must apply."

As applied to the facts of this case, the two portions of the Booker opinion produce a disturbing incongruity. Under Justice Stevens’s majority opinion in Booker (which, for convenience, I will call “Booker Part I”), Ghanem has a constitutional right under the Sixth Amendment to have a jury find any fact that would increase his sentence beyond what is allowed under the guidelines regime in light of “the facts established by [his] plea of guilty or a jury verdict.” Booker, 543 U.S. at 244. Here, there are no facts established by a “jury verdict,” because the jury’s conviction of Ghanem on the § 2332g charge was vacated on appeal. Moreover, as the panel opinion explains, see Opin. at 6–8, the “facts established by [Ghanem’s] plea of guilty” are quite limited. Booker, 543 U.S. at 244. Those discrete facts support, at most, a guidelines range of 78–97 months, and therefore any upward departure from that range would require additional fact-finding that, under Booker Part I, only a jury may make. Thus, under Booker Part I, it would be a flagrant violation of Ghanem’s Sixth Amendment rights to allow a district judge to make the findings necessary to raise Ghanem’s sentence above the 97-month cap that applies under the mandatory guidelines system created by Congress. 

But under Justice Breyer’s further majority opinion (which I will call “Booker Part II”), the “remedy” for this violation of Ghanem’s Sixth Amendment rights is to eliminate the very feature of the guidelines that gives rise to that Sixth Amendment right—namely, the mandatory nature of the guidelines. That is, the “remedy” for the Sixth Amendment violation that would result from allowing the district judge to find the facts that would waive the guidelines’ 97-month cap in Ghanem’s case is simply to waive that cap in all cases—thereby allowing the district judge to freely impose a 360-month sentence that is more than triple the top of the guidelines range. The logic of this syllogism is difficult to follow: it effectively eliminates the Sixth Amendment violation by getting rid of the relevant Sixth Amendment right. That is akin to “curing” a patient’s illness by killing the patient—that certainly gets rid of the illness, but it loses sight of what is at stake. 

We are thus left with a situation in which, under the statutes enacted by Congress and under the Sixth Amendment as construed in Booker Part I, Ghanem’s sentence in this case is patently unlawful. But we must nonetheless uphold it because Booker Part II eliminated the predicate for Ghanem’s Sixth Amendment claim by “engag[ing] in a wholesale rewriting” of the Sentencing Reform Act by facially deleting two of the Act’s provisions and then adding—again, across the board—a new, judgemade “reasonableness” review requirement. Booker, 543 U.S. at 284 (Stevens, J., dissenting); see also id. at 272 (objecting that the Booker Part II majority had effectively “repeal[ed] these two statutory provisions”). Justice Stevens’s dissent explained at length why the Booker Part II remedy was wholly unprecedented, could not be justified by the severability doctrines the majority invoked, and was, at bottom, “an exercise of legislative, rather than judicial, power.” Id. at 274–91. And, as the facts of this case make clear, the two parts of Booker are logically irreconcilable.

As a judge on a court that is “inferior” to the “one supreme Court,” see U.S. CONST. art. III § 1, I am constrained to follow the clear holding of Booker Part II, no matter how flawed it may seem, and I have faithfully done so. But I cannot help but note that, in applying Booker Part II, I have been required to affirm a sentence that even the Government’s lawyer candidly conceded at oral argument was “absolutely” unlawful under the statute as written by Congress. Only the Supreme Court has the authority, if it sees fit, to address this disquieting anomaly.  

7/14/25: Case on U.S.S.G. § 2K2.1(c)(1).

In United States v. Petrushkin, --- F.4th ---, No. 23-572 (9th Cir. 2025), the Court vacated the sentence imposed on Vincent Petrushkin in a case in which Petrushkin pled guilty to possession of a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and remanded for resentencing.

The question presented in this case is whether mere possession of a firearm is sufficient to trigger the application of United States Sentencing Guideline (“U.S.S.G.”) § 2K2.1(c)(1). We hold that it is not, and we vacate and remand for resentencing. 

To begin, we must determine whether Petrushkin waived his right to appeal the district court’s application of the (c)(1) enhancement when calculating his Guidelines range. Petrushkin’s plea agreement included an appeal waiver that allowed him to “appeal only the reasonableness of his sentence.”

First, the calculation of a defendant’s Guidelines range implicates both procedural and substantive reasonableness.

Second, even if the correct application of the Guidelines were strictly a matter of procedural reasonableness, the government’s argument would fail because Petrushkin’s plea agreement allows him to appeal the “reasonableness” of his sentence without any express limitation. That is, the plea agreement does not say that Petrushkin may appeal only the substantive reasonableness of his sentence, nor does it delineate between procedural and substantive review. The reference to “reasonableness,” without limitation, plainly incorporates both the procedural and substantive aspects of reasonableness. And even if the scope of the carve-out in the appeal waiver were ambiguous, we would construe that ambiguity against the government. 

Section 2K2.1(c)(1) is a cross-reference provision: it allows a defendant charged with one crime to be sentenced under the Guideline for a different crime under specified circumstances. Here, Petrushkin was charged with unlawful possession of a firearm. Under § 2K2.1(c)(1), a defendant can be sentenced according to the Guidelines framework for another offense (instead of possession), if he either 1) possessed the firearm “in connection with the commission or attempted commission of another offense,” or 2) possessed the firearm “with knowledge or intent that it would be used or possessed in connection with another offense.”

The first clause of U.S.S.G. § 2K2.1(c)(1)[] requires that when a defendant “use[s] or possesse[s] any firearm or ammunition cited in the offense of conviction in connection with the commission or attempted commission of another offense,” the government must show that the defendant possessed the firearm in a manner that potentially emboldened or facilitated the other offense. 

In sum, we hold that both clauses of U.S.S.G. § 2K2.1(c)(1) require the government to show that a defendant possessed a firearm in a manner that potentially emboldened or facilitated another offense.

[T]he government argues that the district court did not err because Petrushkin, in his plea agreement, agreed to recommend the application of the (b)(6)(B) enhancement. The government urges us to interpret that stipulation as a factual stipulation that Petrushkin’s possession potentially emboldened or facilitated Holmes’s robbery. We reject this argument for two reasons. First, the district court has “an independent obligation to ensure that [its] sentence [is] supported by sufficient reliable evidence.” United States v. Garcia-Sanchez, 189 F.3d 1143, 1149 (9th Cir. 1999). Factual stipulations by the parties should “set forth with meaningful specificity the reasons why the sentencing range resulting from the proposed agreement is appropriate.” U.S.S.G. § 6B1.4(a)(3). 

Second, a defendant may argue that the district court erroneously applied a Guideline even when he initially agreed to its application at sentencing, particularly when “the record, reasonably read, reflects no knowledge of contrary law—let alone strategic maneuvering.”

The § 2K2.1(c)(1) enhancement applies when a defendant possesses a firearm “in a manner that permits an inference that it facilitated or potentially facilitated . . . felonious conduct.” Routon, 25 F.3d at 819. The district court did not make a finding that Petrushkin possessed a firearm in a manner that potentially emboldened or facilitated his codefendant’s robbery, and the facts in the record do not permit the necessary inference. We therefore vacate the 48-month sentence and remand for resentencing consistent with this opinion. 

7/11/25: The Eliminating Kickbacks in Recovery Act (EKRA)

In United States v. Schena, --- F.4th ---, No. 23-2989 (9th Cir. 2025), the Court affirmed Mark Schena’s convictions for violating the Eliminating Kickbacks in Recovery Act (EKRA), which criminalizes, among other things, the payment of “remuneration . . . to induce a referral of an individual to a recovery home, clinical treatment facility, or laboratory.” 18 U.S.C. § 220(a)(2)(A).

The Court held that § 220(a)(2)(A) covers marketing intermediaries who interface with those who do the referrals, and that under EKRA, there is no requirement that the payments be made to a person who interfaces directly with patients. The Court concluded that a reasonable jury could find that Schena was paying marketers with the goal that individuals would be referred to his company, Arrayit.

The Court also addressed what it means to “induce a referral” in this context. The Court held that a percentage-based compensation structure for marketing agents, without more, does not violate § 220(a)(2)(A), but the evidence is sufficient to show wrongful inducement when, as here, the defendant pays remuneration to a marketing agent to have him unduly influence doctors’ referrals through false or fraudulent representations about the covered medical services.

The disagreement between Schena and the government rests on two other aspects of § 220(a)(2)(A): (1) whether EKRA applies to payments made to marketing intermediaries, as opposed to the referring doctors or persons who otherwise interact directly with patients, and, (2) if payments to marketing intermediaries are covered, what it means to “induce a referral” in the context of that type of payment relationship.

The first question is whether 18 U.S.C. § 220(a)(2)(A) covers payments to marketers designed to induce referrals, or whether the provision is limited to payments made to the persons who are doing the actual patient referrals, most typically doctors and other medical professionals. Schena maintains it is the latter. And if payments to marketers are to be covered, he maintains they are covered only if the marketers directly engage with patients. We disagree and hold that 18 U.S.C. § 220(a)(2)(A) covers marketing intermediaries who interface with those who do the referrals.

We now turn to the connection between the payments and the goal of obtaining referrals. That connection turns on the statutory language “to induce.” 

If a payment is made directly to a person who is making the referral, such as a doctor, the payment induces the referral by the very fact of the payment itself. Such a payment is by definition unlawful under EKRA. But we must consider what it means to “induce a referral” in the context of a case such as this, in which the defendant is alleged to have made payments to a marketing agent “to induce a referral of an individual.” We conclude that a percentage-based compensation structure for marketing agents, without more, does not violate 18 U.S.C. § 220(a)(2)(A). But the evidence is sufficient to show wrongful inducement when, as here, the defendant pays remuneration to a marketing agent to have him unduly influence doctors’ referrals through false or fraudulent representations about the covered medical services.

“[I]nduce” has a “longstanding history” in criminal law. Although “[i]n ordinary parlance, ‘induce’ means [t]o lead on; to influence; to prevail on; to move by persuasion or influence,” it has a “specialized, criminal-law” meaning that “incorporat[es] common-law liability for solicitation and facilitation.” Id. at 774 (internal quotations omitted). Criminal solicitation “is the intentional encouragement of an unlawful act,” and criminal facilitation (also known as aiding and abetting) “is the provision of assistance to a wrongdoer with the intent to further an offense’s commission.” Id. at 771. We take from Hansen that the term “induce” connotes not mere causation, but wrongful causation. And it makes sense to read EKRA as incorporating the “well-established legal meaning[]” of “induce,” because “when Congress ‘borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word.’”