4/15/26: California rape under P.C. § 261(a)(2) is an aggravated felony

In United States v. Gonzalez-Reyes, --- F.4th ---, No. 23-3532 (9th Cir. 2026), a divided panel affirmed the district court’s denial of Higinio Gonzalez-Reyes’ motion to dismiss a criminal charge under 8 U.S.C. § 1326, which bars previously removed aliens from reentering the United States.  

This is a categorical approach case out of the SDCA. 

Here is how the majority started the opinion: 

Angry that his girlfriend might end their relationship, Higinio Gonzalez-Reyes strangled and raped her in view of her two young children. A jury convicted him of rape, false imprisonment by menace or violence, and domestic battery with corporal injury under the California Penal Code. After serving his prison term, he was removed to Mexico under an immigration statutory provision that allows expedited removals of aggravated felons unlawfully residing in the United States. Within three days of his removal, Gonzales-Reyes made his way back to the United States but was arrested near the border. He was criminally charged under 8 U.S.C. § 1326, which bars previously removed aliens from reentering the United States. 

Gonzalez-Reyes now collaterally challenges his criminal case, contending that his earlier expedited removal was invalid. He claims that his state conviction for rape—which was the predicate act for his removal—is not an aggravated felony under the federal immigration statute. And because he was allegedly wrongfully removed, Gonzales-Reyes argues that he cannot be charged with criminal reentry. He is wrong. He was rightly removed from our country: California’s statutory definition of rape is a categorical match with the generic federal definition of rape, and thus his state conviction qualifies as an aggravated felony.

The majority continued:

We hold that California Penal Code § 261(a)(2)—which appears to recognize rape perpetrated through threats of nonphysical force—is a categorical match with the generic federal definition of rape. And that means Gonzales-Reyes’ state rape conviction is a valid predicate offense to qualify him as an aggravated felon under federal law.

By 1996, the definition of rape had become broader across multiple jurisdictions to encompass acts committed through nonphysical force or threats of non-physical coercion. 

The dissent countered: 

To be sure, the facts underlying Gonzalez-Reyes’ conviction under Cal. Penal Code § 261(a)(2) are deplorable. Nonetheless, Cal. Penal Code § 261(a)(2) is not a categorical match to its federal analogue, rendering Gonzalez-Reyes’ predicate removal order “fundamentally unfair” under Section 1326(d)(3). Gonzalez-Reyes also satisfies § 1326(d)(1) and (d)(2)’s procedural requirements. Accordingly, I would reverse the district court’s denial of Gonzalez-Reyes’ motion to dismiss his indictment and respectfully dissent.

In sum, the majority erred in holding that the generic federal definition of rape in 8 U.S.C. § 1101(a)(43)(A) includes rape by non-physical threats and that Gonzalez-Reyes’ conviction under Cal. Penal Code § 261(a)(2) is a categorical match. 6 As a result, Gonzalez-Reyes was removed on illegitimate grounds, which is enough to demonstrate prejudice—and thus, fundamental unfairness— under Section 1326(d)(3).

4/13/26: Case on attempted online enticement

In United States v. Williams, --- F.4th ---, No. 24-5792 (9th Cir. 2026), the Court affirmed Koby Don Williams’s conviction for attempted online enticement of a minor in violation of 18 U.S.C. § 2422(b), vacated his sentence, and remanded for resentencing.

Williams was a United States Immigration and Customs Enforcement officer who claimed, after arrest, that he was conducting a human trafficking investigation.   On appeal, he challenged the sufficiency of the evidence supporting his conviction and argued that the government failed to preserve and produce material exculpatory evidence. Williams also maintained, and the government agreed, that the district court erroneously applied an obstruction of justice sentence enhancement pursuant to U.S.S.G. § 3C.1.1 without making the required specific findings of falsity, materiality, and willfulness.

Williams challenges the sufficiency of the evidence to support his conviction because, he argues, Section 2422(b) required the government to show that he attempted to “transform or overcome the will of a minor.”

Section 2422(b)’s mens rea “is subjective—it is what is in the mind of the defendant.” We have repeatedly held that “[t]he victim’s willingness to engage in sexual activity is irrelevant.”

Reviewing this claim in the light most favorable to the United States, we conclude that a “rational trier of fact could have found the essential elements of the crime [of attempted enticement] beyond a reasonable doubt,” including the contested element of knowing persuasion, inducement, enticement, or coercion. The evidence is compelling. Pretending to be “Rebecca,” Martinez “told [Williams her] age.” See Meek, 366 F.3d at 720. Williams, in turn, “used money as a negotiating tool to persuade” a person who, again, repeatedly told him that she was underage, to have sex with him. See Eller, 57 F.4th at 1120–21. His negotiation extended to bargaining with “Rebecca” about the cost and kinds of sex acts that the illicit transaction would include. 

A reasonable jury could have found that these actions, taken together, constitute persuasion, inducement, enticement, or coercion. 

Williams’s conduct more than crossed [the] line. His entreaties advanced the criminal purpose of enticement of a minor, and his conduct verified the existence of that purpose. See Goetzke, 494 F.3d at 1235–36. Williams “initiate[d] conversation with” someone representing herself as a minor and “propose[d] a rendezvous to perform” certain sexual acts, which he attended. Id. at 1237. Following up on his discussion of payments, he made a substantial cash withdrawal from a bank and brought the money to the meeting. See Eller, 57 F.4th at 1120–21. He traveled two hours to Othello, Washington, to meet with “Rebecca.” See Meek, 366 F.3d at 720 (“extensive sexual dialog, . . . repeated sexual references, . . . [and] travel to meet the minor” can constitute a substantial step). When he was arrested, Williams had $4,075 in cash, two large bottles of vodka, and generic Viagra in his car. The jury, as a reasonable factfinder, could—and did—conclude that Williams took a substantial step toward completing the offense. 

The four verbs in Section 2422(b), with their overlapping but distinct meanings, reflect Congress’s effort to capture a range of influencing conduct, which is criminal whether the minor was willing or resistant. Whatever intuitive appeal Williams’s interpretation may have in other circumstances, it finds no foothold in the language of Section 2422(b). The jury therefore only needed to find that Williams knowingly attempted to persuade, induce, entice, or coerce “Rebecca” to engage in sexual acts with him, and not that “Rebecca” had any particular mental state, which Williams transformed or overcame.

Williams contends for the first time on appeal that the government’s failure to produce the “missing published decoy advertisement” denied him his right to present a defense because that advertisement was exculpatory and material under Brady and Trombetta. Williams never states whether the “missing published decoy advertisement” is the Warning in Moses Post or the Yours or Mine Post. At oral argument, he stated that he was referring to both. We identify no viable Brady claim regarding either post.

The government agrees with Williams that the district court committed reversible sentencing error because it did not make explicit findings that his testimony was false, material, and willful. The alleged perjury concerns Williams’s assertions that he did not intend to engage in sexual acts with a minor, that he saw the Yours or Mine Post, which included the law enforcement number also listed in the Warning in Moses Post, and that he never believed “Rebecca” was a minor.

Perjury becomes an obstruction of justice when “(1) the defendant gave false testimony, (2) on a material matter, (3) with willful intent.” United States v. Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014) (quoting United States v. Garro, 517 F.3d 1163, 1171 (9th Cir. 2008)). In perjury cases like this one, “the express requirement for a finding of ‘willful intent’ means an intent to obstruct justice by lying under oath.” United States v. Ho-Romero, 167 F.4th 1037, 1046 (9th Cir. 2026). The Supreme Court has instructed that “if a defendant objects to a sentence enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice.” United States v. Dunnigan, 507 U.S. 87, 95 (1993). In the absence of those findings, Williams’s sentence must be vacated.

4/7/26: Jet ski case

In United States v. Verhonich, --- F.4th ---, No. 25-1407 (9th Cir. 2026), the Court affirmed the district court’s order upholding Verhonich’s misdemeanor conviction and sentence for violating National Park Service Boating and Water Use Activities regulations in connection with a jet ski accident where Verhonich was the driver and a passenger drowned.

Verhonich contends that evidence related to his failure to wear a life jacket or attach the engine cut-off lanyard to his wrist or body is irrelevant to his guilt or innocence on Count One because the plain meaning of “[o]perating a vessel,” as used in 36 C.F.R. § 3.8(b)(8), “concerns only Mr. Verhonich’s piloting of the jet ski, not external factors like safety gear.”

We are not persuaded that the act of maintaining the functioning of, or engaging, using, and controlling, a jet ski, plainly excludes external factors that impact the nature of the maintenance or use, such as safety gear. In particular, removing the safety lanyard entirely halts the operation of the vessel and therefore is encompassed by “operate,” even under Verhonich’s narrow definition to mean only piloting the jet ski itself.

Accordingly, we hold that the failure to wear a life jacket and the failure to attach a safety lanyard may both be considered in determining whether a vessel has been operated negligently pursuant to 36 C.F.R. § 3.8(b)(8). 

3/25/26: Important SCOTUS decision on Supervised Release

Today, in Rico v. United States, 607 U.S. ---, No. 24-1056 (2026), the Supreme Court overruled the Ninth Circuit's rule that a supervisee's abscondment automatically extends a term of supervised release. 

Today, most criminal defendants sentenced to federal prison must also serve a term of supervised release. If a defendant on supervised release fails to report to his probation officer, serious consequences can follow. This case poses a question about one of them.

Without question, Ms. Rico’s supervised release term was set to expire in June 2021 by court order. But, the Ninth Circuit reasoned, Ms. Rico’s abscondment “tolled” the clock so that her term continued to run until federal authorities caught up with her in 2023. Id., at 3a. As a result, her January 2022 drug offense occurred while she was on supervised release. And because of that, the district court could treat that offense as a violation and revoke her supervised release based upon it.

We agreed to review this case to resolve a circuit split. 606 U. S. 930 (2025). Some circuits, like the Ninth, hold that a defendant’s failure to report doesn’t just amount to a punishable supervised release violation but also automatically extends his term of supervised release. Others disagree, taking Ms. Rico’s view that abscondment does not automatically extend a term of supervised release.

In approaching this dispute, a preliminary note on terminology is warranted. The Ninth Circuit held that a defendant who absconds during supervised release “tolls” his existing, judicially ordered term of supervised release until federal authorities find him. This is a misnomer. In legal settings, the word “toll” often denotes some stop or pause. See Artis v. District of Columbia, 583 U. S. 71, 80–82 (2018). But under the Ninth Circuit’s approach, a defendant who absconds stops or pauses nothing. Rather, he remains subject to the conditions of his supervised release and can be held accountable for any violations he commits during his abscondment. What the Ninth Circuit’s rule really does is extend the period of supervised release beyond what a judge has ordered. On its view, an absconding defendant’s term of supervised release does not expire when a court has directed but continues to run so long as the defendant remains out of contact with his probation officer.

Whatever the wisdom of a policy like that, we see nothing in the law authorizing it. The Sentencing Reform Act provides courts with many tools to address defendants who fail to report or otherwise violate their supervised release conditions. But automatically extending a term of supervised release is not among them. An array of textual clues proves the point.

Look at it this way. When a prisoner escapes, he is in no sense serving his prison sentence. In contrast, when a defendant on supervised release fails to report, everyone agrees he remains bound by the terms of his release. That is why, for failing to report and any other violation he may commit during his judicially ordered term of supervised release, a court may send a defendant to prison and authorize more supervised release yet. §3583(e)(3). The court can do all that, too, even after the defendant’s prescribed term of supervised release expires, so long as a warrant or summons issues beforehand. §3583(i). The Act thus already provides courts with many ways to ensure a defendant does not profit from a supervised release violation. But what the Act does not do is automatically extend the defendant’s period of supervised release beyond what a judge has ordered. And that additional rule is hardly necessary to ensure that a defendant should take “no manner of advantage” from his abscondment. 

Because the Sentencing Reform Act does not authorize the rule the Court of Appeals adopted and the government advances, the judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. 

3/25/26: Two decisions - correcting error under Rule 35(a) and a categorical approach case.

First, in United States v. Depape, --- F.4th ---, No. 24-3458 (9th Cir. 2026), the Court affirmed David Wayne DePape’s sentence, holding that where the sentencing court violates Fed. R. Crim. P. 32, by not affording a defendant the right to allocute, it can correct the error as an “arithmetical, technical, or other clear error” under Fed. R. Crim. P. 35(a), by reopening the sentencing proceeding, allowing the defendant to allocute, and then reimposing a sentence.

A criminal defendant has a right to personally address the sentencing court before any sentence is imposed. Fed. R. Crim. P. 32(i)(4)(A)(ii). But what happens when a sentencing court violates Rule 32 by not affording a defendant the right to allocute? Can the sentencing court correct the error as an “arithmetical, technical, or other clear error” under Federal Rule of Criminal Procedure 35(a)? Under the plain text of Rule 35(a), the answer is yes. 

DePape [] argues that Rule 35(a) is inappropriate here because resentencing after a belated allocution requires the reexercise of the sentencing court’s discretion. According to DePape, any error requiring the use of sentencing discretion falls out of Rule 35(a)’s scope. But that’s wrong. While it’s true that correcting a Rule 32(i)(4)(A)(ii) violation may result in reconsideration of the sentencing factors, nothing in Rule 35(a)’s text limits its scope in this way. Indeed, an “arithmetical error” involving the Guidelines calculations—which unquestionably falls within Rule 35(a)’s purview—often requires reapplication of the discretionary 18 U.S.C. § 3553(a) factors. And we’ve already held that a district court commits a “clear error of a technical kind” when it sentences a defendant based on a mandatory-minimum sentence when it thought safety-valve relief applied, and that the district court would have “had the latitude under Rule 35 to correct its perceived technical error” by re-sentencing under the discretionary § 3553 factors afresh.

Next, in United States v. Chavez-Echeverria, --- F.4th ---, No. 24-4723 (9th Cir. 2026), the Court affirmed Jessie Chavez-Echeverria’s sentence, holding that the district court properly increased his base offense level pursuant to U.S.S.G. § 2K2.1(a)(1) on the ground that his prior sentence for attempted first-degree assault under Or. Rev. Stat. §§ 163.185(1)(a), 161.405 qualifies as a crime of violence.

The only issue in this sentencing appeal is whether the district court erred when it increased Jessie Chavez-Echeverria’s base offense level because it concluded that his prior Oregon conviction for attempted first-degree assault qualifies as a crime of violence. Pursuant to the Sentencing Guidelines, crimes of violence include offenses that have as an element the “attempted use” of physical force against the person of another. Under our precedent, “attempted use” of physical force means a substantial step toward the use of physical force. United States v. Linehan, 56 F.4th 693, 702 (9th Cir. 2022). Because an Oregon conviction for attempted first-degree assault requires a defendant to take a substantial step toward causing serious physical injury to another, we affirm the sentence imposed by the district court.

Resisting this conclusion, Chavez-Echeverria contends that attempted first-degree assault under Oregon law does not necessarily entail the “attempted use” of physical force because Oregon’s construction of “substantial step” is broader than the federal definition. More specifically, he argues that by citing Ninth Circuit caselaw, Linehan imported into the force clause analysis the so-called “probable desistance” test that we have applied to substantive criminal offenses. We disagree.  

The “probable desistance” test provides that “a suspect crosses the line separating preparation from attempt when his actions ‘unequivocally demonstrat[e] that the crime will take place unless interrupted by independent circumstances.’”  We integrated the common-law probable desistance test into our substantial step inquiry for substantive criminal offenses in United States v. Buffington, 815 F.2d 1292, 1302 (9th Cir. 1987).  Thus, when analyzing whether a defendant has attempted a substantive criminal offense, we have held that a defendant’s actions “constitute a substantial step” if they “unequivocally demonstrat[e] that the crime will take place unless interrupted by independent circumstances.” 

However, the Model Penal Code formulation of attempt liability, which Oregon has codified, see § 161.405(1), does not include a “probable desistance” test.

Linehan adopted the established meaning of “attempt”— requiring a “substantial step”—without importing the probable desistance test that we have applied to substantive criminal offenses. See 56 F.4th at 702–03. Because attempted first-degree assault under Oregon law requires that a defendant take a substantial step toward causing serious physical injury, it qualifies as a crime of violence under the force clause. The district court did not err by increasing Chavez-Echeverria’s base offense level pursuant to § 2K2.1(a)(1). 

3/23/26: Case on U.S.S.G. § 2K2.1(b)(5)

n United States v. Ferrari, --- F.4th ---, No. 24-6007 (9th Cir. 2026), the Court affirmed the district court’s application of a sentencing enhancement for engaging in firearms trafficking in a case in which Christian Ferrari pleaded guilty to four counts of willfully dealing firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A).

Pursuant to § 2K2.1(b)(5) of the 2021 United States Sentencing Guidelines, a sentencing enhancement applies “[i]f the defendant engaged in the trafficking of firearms.” U.S.S.G. § 2K2.1(b)(5) (2021). Application Note 13 states that “Subsection (b)(5) applies . . . if the defendant . . . knew or had reason to believe that” the defendant disposed “of a firearm to an individual (I) whose possession or receipt of the firearm would be unlawful; or (II) who intended to use or dispose of the firearm unlawfully.”1 U.S.S.G. § 2K2.1, cmt. n.13(A) (2021). The question presented is whether Application Note 13 requires that the person to whom the defendant transferred the firearm in fact was an unlawful possessor or intended to use the firearm unlawfully. We hold that it does not. Accordingly, we affirm.

Ferrari appeals the district court’s application of the firearms trafficking enhancement. On appeal . . . . Ferrari argues that in order to apply the firearms trafficking enhancement, it must also be true that the undercover agents were unlawful possessors or intended to use the firearms unlawfully. Ferrari’s argument largely relies on out of circuit cases interpreting similar language in two federal criminal firearms statutes.

The government responds with two arguments. First, the government contends that Ferrari did not preserve his argument for appeal, and thus plain error review applies. Second, the government argues that Application Note 13 requires only that the defendant “had reason to believe” the transferee was an unlawful possessor or intended to use the firearm unlawfully and does not require it to be true that the transferee was an unlawful possessor or intended to use the firearm unlawfully. We address both arguments in turn.

[As to waiver,] [t]he government’s argument conflicts with United States v. Hong, 938 F.3d 1040 (9th Cir. 2019). Hong held that a defendant’s arguments challenging the applicability of a sentencing enhancement may “shift[] on appeal” as long as the “basic claim remains the same”: the sentencing enhancement does not apply.

This case is like Hong, and the government makes no attempt to distinguish it. On appeal Ferrari presses the same basic claim that he raised below: “the [firearms trafficking] enhancement does not apply to him because his case does not fit the terms of Application Note 13.”

Because Ferrari preserved his claim challenging the applicability of the firearms trafficking enhancement, we review de novo Ferrari’s argument that the district court misinterpreted Application Note 13. 

Next, the Court held that "[a]pplication Note 13’s text does not require it to be true that the transferee was an unlawful possessor or intended to use the firearm unlawfully."

Nothing else in Application Note 13 requires that what the defendant “had reason to believe” must also be true. Ferrari does not identify a subsection that requires the transferee to in fact be an unlawful possessor, or to actually intend to use the firearm unlawfully. Subsection (ii) of Application Note 13(A) only requires that the defendant “had reason to believe” as much. Nor does Ferrari point to any specific language in the text that would require it to be true.

Because there is no reason to depart from the plain text, we hold that Application Note 13 to § 2K2.1(b)(5) of the 2021 United States Sentencing Guidelines does not require that what the defendant had reason to believe was true. On appeal, Ferrari does not dispute that he had reason to believe the undercover agents were unlawful possessors or intended to use the firearms unlawfully.  

3/18/26: Second Amendment case on 922(g)(9)

In United States v. Martinez, --- F.4th ---, Nos. 23-432, 23-2417, 23-3426 (9th Cir. 2026), the Court affirmed three appellants’ convictions under 18 U.S.C. § 922(g)(9), which prohibits a person convicted of a misdemeanor domestic violence offense from possessing a firearm or ammunition.

"Appellants’ facial challenge to § 922(g)(9) [] fails. We conclude that § 922(g)(9) may be constitutionally applied to individuals who have been previously convicted of misdemeanors based on them having used criminal force against their domestic partners."

"We similarly hold here that § 922(g)(9) categorically disarms individuals convicted of a misdemeanor crime of domestic violence. Like § 922(g)(1), § 922(g)(9) reflects Congress’s determination that members of a class of convicted criminals are dangerous. Therefore, we hold that we need not engage in a misdemeanor-by-misdemeanor inquiry under § 922(g)(9). We are not alone in so holding. As we do here, the Second Circuit rejected a defendant’s as-applied challenge to § 922(g)(9) based on Congress’s power to disarm groups of people without distinguishing between the nature of the offense underlying particular convictions."