9/23/26: One decision, lots of issues

In United States v. Rivera, --- F.4th ---, No. 24-673 (9th Cir. 2026), the Court affirmed Marcello Rivera’s jury conviction and 25-year sentence for possessing methamphetamine and possessing ammunition as a felon.

A jury convicted Marcello Rivera of possessing methamphetamine and possessing ammunition as a felon. The district court sentenced Rivera to 300 months’ imprisonment. He appeals, arguing that his conviction and sentence were invalid because of sentencing error, trial error, and constitutional error. Because Rivera’s convictions and sentence are free of error, we affirm.

First, Rivera argues that the district court abused its discretion by converting the cash into a monetarily equivalent amount of drugs. We allow currency found in a search to be “convert[ed] . . . into drugs for sentencing purposes.” United States v. Otis, 127 F.3d 829, 836 (9th Cir. 1997); see Guidelines § 2D1.1. A sentencing court may do so “where the amount of a drug seized does not reflect the scale of the offense” at issue. United States v. GonzalezSanchez, 953 F.2d 1184, 1186 (9th Cir. 1992). But when a sentencing court converts currency in this way, there must be “evidence connecting the money to drug-related activities.” Otis, 127 F.3d at 836. In other words, the district court must find by a preponderance of the evidence that the money had a nexus to a drug transaction. See GonzalezSanchez, 953 F.2d at 1187. 

That requirement is met here. In its special verdict, the jury found that the “approximately $5,972 in U.S. currency” was “property constituting or derived from proceeds obtained, directly or indirectly, as a result of the offense charged in Count 1 of the indictment and bill of particulars.”1 And Count 1 was possession with intent to distribute methamphetamine. In other words, the jury found that every dollar of the $5,972 seized constituted methamphetamine proceeds, and the district court reasonably relied on that finding during sentencing.

The district court did not err by applying the premises enhancement to Rivera’s total offense level. 

At the time of sentencing, both parties agreed that no Ninth Circuit precedent squarely spoke to the applicability of this enhancement in Rivera’s case. Instead, the district court adopted the rationale of Johnson to find that the enhancement applied.

Johnson correctly interpreted the scope of Guideline § 2D1.1(b)(12) considering the provision’s plain text. And we have since adopted the rule laid out by the Sixth Circuit and several other circuits. See United States v. Tekola, 176 F.4th 608, 612 (9th Cir. 2026). Under Tekola, the reasoning in Johnson applies to Rivera’s direct appeal. See United States v. Engstrom, 166 F.4th 835, 848 (9th Cir. 2026) (generally courts “apply changes in precedent in cases on direct appeal.”). 

Under Tekola, the district court did not abuse its discretion by applying the drug premises enhancement to Rivera’s sentence. See Gasca-Ruiz, 852 F.3d at 1170. Rivera used his home to store and distribute methamphetamine. Rivera kept many tools of his drug trade at his home, including packaging materials for dividing methamphetamine for his customers, scales for weighing methamphetamine, and a loaded magazine ready to insert into a handgun. And evidence from Rivera’s cell phone shows that he used his home to conduct methamphetamine deals as far back as February 2021.

The district court did not err in its handling of Agent Nehring’s percipient and expert testimony. Agent Nehring testified on each of the four days that the jury heard witness testimony. The district court instructed the jury that Agent Nehring was engaged in dual-role testimony, using the Ninth Circuit’s model instruction, both before his expert testimony started and at the end of the case. And the district court separated Agent Nehring’s testimony into lay and expert phases, with several other witnesses testifying between to ensure that the jury did not get confused between percipient and expert testimony.

The district court did not err by admitting exhibits 82 and 83 into evidence at trial. The district court did not abuse its discretion in finding that the exhibits were evidence of intent permissible under Rule 404(b)(2). We have held similar testimony—when used to prove intent to distribute drugs—permissible under Rule 404(b). See, e.g., United States v. Hegwood, 977 F.2d 492, 496 (9th Cir. 1992). The district court’s decision was well within its discretion. 

The district court did not err in excluding the recorded conversation Rivera had with Agent Nehring shortly after his arrest. During trial, Agent Nehring testified that Rivera made an unrecorded inculpatory statement toward the end of his search, in which Rivera admitted that he should not have possessed the ammunition because he was a felon. Rivera argues that he should have been allowed to introduce a recorded statement from his post-arrest interview—despite it being hearsay—to impeach Agent Nehring. 

If Agent Nehring hypothetically said on the stand, “I saw X,” then Rivera could introduce any prior inconsistent statements Agent Nehring made where he told others, “I never saw X.” What Rivera cannot do is introduce statements that he made to Nehring that, if true, might undermine what Agent Nehring previously heard. The latter scenario is hearsay not admissible under any exception because Rivera is offering his statement for the truth of the matter it asserts, rather than offering a prior inconsistent statement that Agent Nehring made. Rivera’s hearsay is not valid impeachment evidence. 

Rivera also arguably attempted to introduce the recording for purposes of impeachment by contradiction. Fed. R. Evid. 607. Under this theory, Rivera’s recorded statements denying responsibility for firearms dealing would be introduced not for the truth of the matter asserted, but to contradict Agent Nehring’s claim that Rivera admitted guilt while not being recorded. At any rate, the district court did not abuse its discretion in concluding that Rivera’s recorded statements denying responsibility for firearms dealing were irrelevant to statements he made in a different conversation concerning ammunition found in Rivera’s home.

Finally, Rivera argues that his conviction for possession of ammunition under 18 U.S.C. § 922(g)(1) must be reversed because the statute is facially unconstitutional to the extent that it prohibits possession of ammunition alone by a person convicted of a crime punishable by more than one year. But Rivera did not preserve this claim.  

9/22/26: Interesting case on using a false identity

In United States v. Primrose, --- F.4th ---, No. 24-1462 (9th Cir. 2026), the panel affirmed Walter Glenn Primrose’s convictions for conspiracy to make materially false, fictitious, and fraudulent statements to the Department of Defense (DOD); aggravated identity theft; making false statements in the application for and use of a passport; and conspiracy to make false statements in applications for a passport. 

Defendant-Appellant Walter Glenn Primrose was convicted by a jury of aggravated identity theft and making false statements to the United States Government after he assumed the identity of a child named Bobby Edward Fort, who died in infancy. Primrose lived under his assumed identity for over 30 years, including serving in the United States Coast Guard. In this appeal, he challenges his convictions, raising a novel argument: a person’s identity is not just the name and birthdate on their birth certificate but “what one does with that name and birth date.” Indeed, Primrose reminds us that “Shakespeare is not known for his true name and birth date but for his body of work.” Drawing on property-law principles, Primrose contends that he has adversely possessed his assumed identity such that he now is Bobby Fort. In his words: “There should come a time when a person who has lived under an assumed name has earned the right to that name and identity.”

We reject Primrose’s premise—one cannot obtain the legal right to another person’s identity simply by using it for a long time. Therefore, we affirm his convictions.

There is no basis in law or reason for us to conclude that one may adversely possess the identity of another person. The Supreme Court has held that “[a]n individual’s identity is more than just his name or Social Security number.” Maryland v. King, 569 U.S. 435, 450 (2013). A person’s identity is a part of, not separate from, their personhood. And no matter how long one uses another person’s name, they simply do not become the other person. 

The identities that Primrose and his wife assumed belonged to infants who were not long for this world. That the infants’ lives were short does not erase their existence or their importance. And no matter what Primrose and his wife did with the infants’ identities, those identities still belonged to the infants who were born on the dates and received the names that were recorded in their birth certificates. It is not at all clear that the infants, their parents, or family were not “harmed” by Primrose’s actions. And Primrose’s contention that he is the one “who had done the work” to establish an identity under the Bobby Edward Fort name by living a life under that name for 30 years is beside the point. 

Primrose has repeatedly invoked analogies to Shakespeare and his writings in this litigation. While we do not answer, “[w]hat’s in a name,” William Shakespeare, Romeo and Juliet act 2, sc. 2, ll. 46–47, we find no error in the jury’s verdict concluding that Primrose “told a lie, an odious, damned lie,” William Shakespeare, Othello act 5, sc. 2, l. 216. 

9/16/26: Case on U.S.S.G. § 2G2.2(b)(5)

In United States v. Mendonsa, --- F.4th ---, No. 25-1517 (9th Cir. 2026), the Court affirmed Louis Mendonsa’s sentence for possessing and distributing child pornography in a case in which the district court applied the five-level sentencing enhancement in U.S.S.G. § 2G2.2(b)(5) for defendants who “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.”

Defendant Louis Mendonsa appeals his 292-month sentence for possessing and distributing child pornography. The district court applied the five-level sentencing enhancement in Section 2G2.2(b)(5) of the United States Sentencing Guidelines for defendants who “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” Consistent with the Guidelines commentary, the district court interpreted the pattern enhancement to encompass Mendonsa’s prior sex abuse convictions that were over 30 years old. 

Mendonsa contends that the pattern enhancement unambiguously applies only to conduct related to the offense of conviction, and that under Kisor v. Wilkie, 588 U.S. 558 (2019), the district court’s deference to the Guidelines commentary was inappropriate. Alternatively, he argues that even if his prior convictions may be considered for the pattern enhancement, the district court erred under the categorical approach by considering the underlying factual record from his state convictions to determine that the enhancement applied. 

We hold that the pattern enhancement is ambiguous and deference to the Guidelines commentary is appropriate. Moreover, the categorical approach does not apply because the enhancement focuses on a defendant’s conduct rather than prior convictions, and the district court neither clearly erred in finding the enhancement satisfied nor abused its discretion in considering hearsay evidence concerning Mendonsa’s state convictions.

Here, although the commentary’s definition of sexual abuse or exploitation references specific federal provisions, it applies to the “conduct described in” those statutes. U.S.S.G. § 2G2.2 cmt. n.1. The definition of a “pattern of activity” also expressly extends to “instances” of sexual abuse regardless of whether they “resulted in a conviction.” Id. The enhancement thus turns on whether the defendant engaged in qualifying conduct, not whether a prior conviction categorically qualifies. Accordingly, the categorical approach does not apply to Mendonsa’s § 288(a) convictions.

We hold that § 2G2.2(b)(5) is ambiguous as to whether the pattern enhancement reaches conduct outside the offense of conviction and that the Commission’s interpretation permitting consideration of such conduct is reasonable and entitled to deference. Because the district court properly applied the enhancement, we affirm Mendonsa’s sentence. 

9/14/26: Two decisions today

First, in United States v. Tovar-Duran, --- F.4th ---, No. 24-2328 (9th Cir. 2026), the Court reversed a district judge’s order affirming Jaime Tovar-Duran’s conviction, following a bench trial before a magistrate judge, for improper entry into the United States as a non-citizen; conditionally vacated the conviction; and remanded for further proceedings.

Mr. Tovar-Duran argues that the magistrate judge improperly determined that the government met its obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Federal Rule of Criminal Procedure 16. He also argues that the magistrate judge improperly admitted hearsay statements included in warrants of removal and written warnings to prove Mr. Tovar-Duran’s non-citizenship. We agree. 

We hold that when a defendant shows that the government may be in possession of undisclosed Brady and Rule 16 evidence and requests further discovery, courts must require the government to review evidence in its possession and disclose the Brady and Rule 16 material. We also clarify that all removal documents are not per se admissible as public records. Because, like here, some removal documents contain multiple levels of hearsay, courts must examine whether the specific statements within the documents are admissible.

The magistrate judge abused her discretion by denying Mr. Tovar-Duran’s request for additional evidence of the witnesses’ membership and activity in the Facebook group because the government was obligated to disclose the evidence under Brady and Rule 16. And because the government failed to disclose this evidence, we cannot yet determine whether its failure to disclose it prejudiced Mr. Tovar-Duran. We thus must vacate his conviction and remand for further proceedings on “whether the government’s documents in fact contain, or would have led to, information that might have altered the verdict.”

Mr. Tovar-Duran argues that Brady and Rule 16 required the government to disclose which witnesses were involved in the “I’m 10-15” group before trial and to provide documentation of their membership and activity in the group. We agree.

To start, evidence of the witnesses’ involvement in the Facebook group is Brady material because Mr. Tovar-Duran could have used it to impeach the witnesses’ credibility. In light of the derogatory material posted in the group, the witnesses’ activity on the page could be strong evidence of bias against noncitizens. Similarly, the evidence falls under Rule 16(a)(1)(E)(i), which requires the government to turn over documents “material to preparing the defense.” Materiality is a low threshold, and any document that “would have helped” the defendant prepare his defense satisfies the standard. United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013). Here, at a minimum, evidence of the witnesses’ involvement in the Facebook group would have helped Mr. Tovar-Duran “impeach the . . . agent at trial.” Doe, 705 F.3d at 1151. 

The government argues that the magistrate judge did not abuse her discretion by denying the discovery request because the “prosecution team was not aware of and had no additional information about the agents’ ‘10-15’ activity in its possession.” But Mr. Tovar-Duran pointed to “facts which would tend to show that the Government is in possession of information helpful to the defense.” See Doe, 705 F.3d at 1150 (citation modified). For example, the government originally represented that none of its witnesses were in the group and—for an unexplained reason—later confirmed that two witnesses were in the group. The government’s contradictory disclosures alone suggest that it is in possession of evidence about the witnesses’ involvement in the Facebook page and, thus, “helpful to the defense.”

Without knowing whether and to what extent additional evidence of the witnesses’ involvement in the Facebook group exists, we cannot determine whether such evidence would have undermined the witnesses’ credibility and impeached their testimony. We thus have no way to determine whether the evidence “might have altered the verdict.”

At bottom, the magistrate judge “committed a clear error of judgment” by proceeding to trial before ordering the government to review the evidence in its “possession, custody, or control,” and produce any additional Rule 16 evidence. Doe, 705 F.3d at 1150 (citation modified). This was an abuse of discretion. And the government’s failure to produce the evidence likewise constituted a Brady violation. We thus reverse the district court, conditionally vacate Mr. Tovar-Duran’s conviction, and remand for further proceedings.

We are now left with Mr. Tovar-Duran’s hearsay claims. Mr. Tovar-Duran argues that the magistrate judge abused her discretion by admitting the prior warrants of removal and written warnings to prove Mr. Tovar-Duran’s citizenship status under the public records exception to hearsay. 

When a public record contains additional layers of hearsay statements, each statement must fall under a hearsay exception to be admissible. Fed. R. Evid. 805. We have explained that the “mere fact that a document qualifies as a public record . . . does not ipso facto overcome the hearsay objection unless the document relates to an event to which the author could himself testify.” United States v. Chu Kong Yin, 935 F.2d 990, 999 (9th Cir. 1991) (citation modified). This is because “the public documents exception to the hearsay rule is only the substitute for the appearance of the public official who made the record.” Id. (citation modified). 

Under a straightforward application of these rules, the removal documents contain inadmissible hearsay statements. 

Here, the government relied on these documents, which contain multiple layers of hearsay, to make that showing. Each document references a prior removal order issued by “a designated official” or a finding that Mr. Tovar-Duran “reentered the United States illegally.” And the magistrate judge relied on the truth of the statements—that Mr. TovarDuran was subject to a final order of removal by a designated official or had been found to have reentered the United States illegally—to conclude that Mr. Tovar-Duran is not a United States citizen. But the government failed to show that any of the forms were prepared by someone with firsthand knowledge of the removal order or finding of illegal reentry. Cf. Fed. R. Evid. 805. The government thus relied on hearsay statements to prove alienage without providing any exception under which they are admissible.

In sum, the magistrate judge did not examine the admissibility of the specific statements pertaining to Mr. Tovar-Duran’s citizenship status and instead generally concluded that the warrants of removal and written warnings were admissible. This was an abuse of discretion.

This error was not harmless.  It is more probable than not that admitting the removal documents materially affected the verdict. Had these statements been excluded as hearsay, the record would have contained minimal evidence of Mr. Tovar-Duran’s citizenship status, given that at least two of the witnesses’ testimony may be tainted by Brady and Rule 16 violations.  

Next, in United States v. Troiano, --- F.4th ---, No. 24-6621 (9th Cir. 2026), the Court affirmed the district court’s denial of James Troiano’s motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).

Defendant James Troiano appeals the district court’s denial of his motion for “compassionate release” under 18 U.S.C. § 3582(c)(1)(A)(i). He argues that, because of the combined effect of multiple nonretroactive changes to the Sentencing Guidelines enacted after he was sentenced, he is serving “an unusually long sentence” that is “unreasonably disproportionate” to the sentence he would receive if sentenced today, and that this disparity is an “extraordinary and compelling reason” warranting a sentence reduction and attendant compassionate release.

We conclude that the Commission acted within its statutory authority and that the policy statement is valid. Troiano also argues that, even if the policy statement validly precludes consideration of a single nonretroactive amendment to the Guidelines, it does not prohibit courts from considering the combined effect of multiple nonretroactive amendments. We conclude that the policy statement bars consideration of any nonretroactive amendments, alone or in combination. Therefore, we affirm

In sum, we conclude that the Commission may, within the scope of its statutory authority under § 994(t), exclude a nonretroactive Guidelines amendment from the definition of “extraordinary and compelling reasons for sentence reduction.” Therefore, subsections (b)(6) and (c) of the § 1B1.13 Policy Statement validly bar district courts from considering nonretroactive changes to the Sentencing Guidelines in deciding whether there are “extraordinary and compelling reasons for [a] sentence reduction.” 28 U.S.C. § 994(t). 

If the Commission intended to bar consideration of a single nonretroactive amendment to the Guidelines but allow consideration of the combined effect of multiple nonretroactive amendments, the Commission likely would have used more specific language to make that clear. We therefore conclude that the Policy Statement prohibits consideration of the combined effect of multiple nonretroactive amendments to the Guidelines.

We conclude that subsections (b)(6) and (c) of the § 1B1.13 Policy Statement validly prevent district courts from considering nonretroactive changes to the Sentencing Guidelines in deciding whether there are “extraordinary and compelling reasons for [a] sentence reduction,” 28 U.S.C. § 994(t), and that restriction is binding on district courts considering motions for compassionate release. We also conclude that the combined effect of multiple nonretroactive amendments to the Sentencing Guidelines is not an extraordinary and compelling reason for compassionate release under that Policy Statement. Accordingly, we affirm the district court’s denial of Troiano’s motion for compassionate release on that ground. 

9/8/26: Case on murder-for-hire under § 1958

In United States v. Gessen, --- F.4th ---, No. 24-2979 (9th Cir. 2026), the Court affirmed Allen Gessen’s conviction for murder-for-hire in violation of 18 U.S.C. § 1958.

In the light most favorable to the government, the evidence suggested that Gessen agreed to pay $50,000 to a broker, who agreed to arrange to kill Priscilla Chigariro, the mother of Gessen’s children. However, the supposed broker was actually undercover FBI agent David Rizzo, who posed as a member of an organized crime syndicate.

Gessen’s proposed a jury "instruction aligned with his defense theory that murder-for-hire cannot exist between a real solicitor and a fictional intermediary, like an undercover FBI agent. But the district court correctly rejected the instruction because it is contrary to the requirements of § 1958." 

We start with the text of § 1958. As relevant here, § 1958 requires that the defendant act “with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value.” 18 U.S.C. § 1958(a). The statute says nothing about the intent of the other party or parties to the proposed murder transaction. Thus, Gessen’s argument is contrary to the explicit requirements of the statute and seeks to add an element that is not contained in the statute.

Gessen asked the district court to instruct the jury that he could not be convicted without evidence of a “quid pro quo agreement.” His proposed instruction provided that “the defendant must have reached an agreement with a person who clearly understood that they themself would commit a murder in exchange for defendant’s promise to pay or payment of something of pecuniary value.” But an actual agreement is not required unless conspiracy is charged. Because Gessen’s requested instruction is unsupported by law, the district court did not err in rejecting it.

Gessen also challenged the sufficiency of the evidence.  The Court held, "[f]rom the recorded conversations between Gessen and Rizzo, which the government played at trial, a rational jury could have concluded that Gessen intended to kill Chigariro—not have her deported."

Sufficient evidence also supports the jury’s finding that Gessen intended Chigariro’s murder to be committed in exchange for something of pecuniary value. The jury heard that, before the second meeting, Rizzo asked Gessen to bring “half the amount” of $50,000 for their “project.” Then, at the meeting itself, Gessen gave Rizzo a gold coin worth $2,000 and promised to wire the remainder to a business account in San Francisco. And after the meeting, Gessen wired about $23,000 to the FBI’s undercover bank account. A rational jury could thus conclude that Gessen intended to pay $50,000 in exchange for Chigariro’s murder.

Gessen finally contends that venue was improper in the Northern District of California and that the district court erred in not giving his requested venue instruction. 

[W]e conclude that murder-for-hire may be charged as a continuing offense.

Just as a kidnapping consists of “distinct parts” in “different localities” when a perpetrator moves their victim across state lines, so too does a murder-for-hire if the offender, for example, uses interstate-commerce facilities (with the requisite intent) on more than one occasion. Similarly, the victim of a murder-for-hire is not safe until the plan is foiled or the culprits arrested. So until that point, each act of travel or use of interstate commerce facilities in furtherance of the plot continues the criminal offense. Put another way, the offense “does not terminate merely because all of the elements are met.”

In sum, murder-for-hire may be charged as a continuing offense. And the grand jury so charged Gessen. Thus, “venue lies in any district touched by the crime before the crime is completed.”

Gessen recognizes that “the charged offense ‘was begun in one district and completed in another, or committed in more than one district.’” (quoting 18 U.S.C. § 3237(a)). But he contends that he could not be tried in the Northern District of California because his offense was complete before any acts occurred in the district.

The district court made no instructional error as to venue. So we will not disturb Gessen’s conviction on this ground.

Gessen also presses that the government presented insufficient evidence for the jury to find proper venue in the Northern District of California.

Gessen’s use of interstate commerce facilities to wire money to San Francisco, in furtherance of the murder-for-hire plot, subjects him to prosecution where that money was received: San Francisco. Because San Francisco is within the Northern District of California, venue was proper in the Northern District.

9/3/26: Good case on the right not to testify.

In United States v. Valencia, --- F.4th ---, No. 24-3820 (9th Cir. 2026), the Court reversed Eduardo Valencia’s convictions for Hobbs Act robbery and brandishing a firearm during an armed robbery and remanded the case for a new trial.

Valencia had tattoos on his hands that did not appear in surveillance footage.  The district court required him to take the stand and submit to cross-examination as a condition of showing the tattoos to the jury.  This was error. 

The constitutional rights of criminal defendants cannot be determined with a roll of the dice. The right not to testify is one of the “many unassailable rights” constitutionally guaranteed to criminal defendants during trial. Villarreal v. Texas, 607 U.S. 465, 467 (2026). These rights are more than mere formalities—they form the backbone of a criminal justice system designed to provide all defendants with fair trials. This privilege against self-incrimination stands as a pillar of our Constitution and was deliberately safeguarded by the Framers as crucial to the preservation of liberty against the overreach of government power. 

Our analysis starts and ends with Valencia’s first contention: that the district court committed reversible error by compelling Valencia to take the stand as a prerequisite for showing his hand tattoos to the jury.  In United States v. Bay, we clearly held that a district court commits constitutional error by allowing a defendant to “present the clearly relevant evidence of his tattoos only at the price of forgoing his Fifth Amendment right not to testify.” 762 F.2d 1314, 1316 (9th Cir. 1984). Thus, we reverse and remand for a new trial.

Valencia maintains that the district court ignored binding Ninth Circuit law by forcing him to take the stand as a condition of showing his tattoos to the jury and, by doing so, committed reversible constitutional error. The government insists that there was no error and, in the alternative, that any error was harmless. The district court’s decision to “roll the dice” left Valencia with the impossible choice to forgo presenting exculpatory evidence or forgo his Fifth Amendment right to refuse to give testimony. We hold that this was constitutional error and that the error was not harmless.

Here, though the government brought Bay to the district court’s attention in the first instance and explained that Valencia must be permitted to show his hands to the jury without being subject to cross-examination, the government now attempts to distinguish Bay from the facts of this case. Its arguments are unpersuasive. Indeed, the government concedes that the district court “incorrectly concluded that displaying [Valencia’s] hands alone was testimonial,” yet contends that Valencia “was not presented with the same choice that Bay was” because the jury could see Valencia’s hands when he was sitting at counsel table. That the jury could see Valencia’s hands in open court misses the point. The fundamental error is that the district court forced Valencia to take the stand in order to display an identifying physical characteristic—hand tattoos—to the jury. That was precisely the error in Bay, and it is the error here. 

As for the district court’s decision not to apply Bay based on the reasoning that the government “should be allowed to question [Valencia],” “[a] district judge may not respectfully (or disrespectfully) disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue.” Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001). Published decisions from this court are binding law that must be followed within the circuit “unless and until overruled by a body competent to do so.” Bay was and is controlling law, and the district court’s decision not to apply it at the expense of Valencia’s Fifth Amendment right not to testify was error, snake eyes, by any measure. 

We apply the constitutional-error standard set forth in Chapman v. California, 386 U.S. 18, 24 (1967). Bay, 762 F.2d at 1316. Constitutional errors do not necessitate a new trial if they are harmless. Pitts v. Mississippi, 607 U.S. 1, 6 (2025) (per curiam). But “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."  The government bears the burden of establishing harmless error beyond a reasonable doubt. 

The harmless-error standard under Chapman is a high bar, one the government’s argument does not clear. Although the government introduced other evidence tying Valencia to the robbery, it obviously put a premium on Valencia’s testimony. 

Finally, the jury’s relatively brief deliberations do not establish beyond a reasonable doubt that the constitutional error was harmless. The deliberation clock is no better gauge of guilt than a coin flip. Though this court has held that longer deliberations can weigh against a finding of harmless error, see Velarde-Gomez, 269 F.3d at 1036, a short deliberation period is not enough to clear the demanding beyond-a-reasonable-doubt standard. We do not know why the jury reached its verdict with such speed, though its questions point to Valencia’s hand tattoos as a focal point. Perhaps the other evidence clinched the conviction, but for all we know, the tattoo fiasco was so damaging that it carried the day on its own.

Requiring Valencia to testify in order to display his tattoos was a consequential constitutional error. We reverse Valencia’s convictions and remand for a new trial.

8/24/26: reasonable suspicion and post-trial acceptance of responsibility

In United States v. Aguilera, --- F.4th ---, No. 25-3366 (9th Cir. 2026), the Court affirmed Fernando Aguilera’s conviction following a bench trial for being a felon in possession of ammunition under 18 U.S.C. § 922(g)(1), vacated his sentence, and remanded for resentencing.

This case arises from a police encounter following reports of an active shooter in San Francisco’s Mission District. Defendant-Appellant Fernando Aguilera was convicted of being a felon in possession of ammunition under 18 U.S.C. § 922(g)(1). His appeal raises two issues. First, Aguilera appeals the district court’s denial of his motion to suppress the ammunition evidence, asserting officers did not have reasonable suspicion to conduct a warrantless seizure of his person. Second, Aguilera appeals his sentence, arguing the district court erred by denying him an offense level reduction for acceptance of responsibility and relying on impermissible sentencing factors. 

Under the Fourth Amendment, law enforcement officers must have reasonable suspicion to conduct an investigatory stop of an individual. United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). “Reasonable suspicion is defined as ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’” United States v. Cotterman, 709 F.3d 952, 968 (9th Cir. 2013) (en banc) (quoting United States v. Cortez, 449 U.S. 411, 417– 18 (1981)). Courts measure reasonable suspicion “by what the officers knew before they conducted their search [or seizure],” Florida v. J.L., 529 U.S. 266, 271 (2000), and assess the totality of the circumstances, rather than certain factors in isolation, see United States v. Valdes-Vega, 738 F.3d 1074, 1078–79 (9th Cir. 2013) (en banc) (citing United States v. Arvizu, 534 U.S. 266, 273–74 (2002)). Reasonable suspicion requires more than a hunch, but “considerably less than proof of wrongdoing by a preponderance of the evidence.”

The district court properly found Aguilera’s seizure was supported by reasonable suspicion. The court considered the collective knowledge of the officers, see United States v. Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007), and the totality of the circumstances, in concluding the officers reasonably suspected that Aguilera was the shooter who fired a gun outside El Trebol. Eyewitnesses identified the shooter to the responding officers, and Officer Hurtado visually identified a person matching the suspect’s description, location, and direction of travel. At one point, Officer Hurtado was as little as five feet from the suspect.

In light of the totality of the circumstances described above and the officers’ collective belief that the suspect had a loaded firearm, it is clear the officers had reasonable suspicion to detain the individual hiding behind a white fence in a manner that did not jeopardize their safety. See Wardlow, 528 U.S. at 124–25 (citing Cortez, 449 U.S. at 418) (“[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.”). Contrary to what Aguilera suggests, Officer Frisk had a clear view of Aguilera’s clothing through “a large gap in the fence, and pointed his flashlight directly at defendant before detaining him,” and therefore, he would have been able to see if Aguilera matched the eyewitness descriptions. Thus, we agree with the district court’s findings that officers possessed adequate reasonable suspicion to detain Aguilera

Aguilera argues his sentence should be vacated because the district court applied the wrong legal standard and relied on impermissible factors in denying the acceptance of responsibility reduction. . . .“Whether or not the defendant has accepted responsibility . . . is a factual finding that we review for clear error.” Id. Because we conclude the district court applied the wrong legal standard, we remand for resentencing. 

“When a defendant’s ‘statements and conduct make it clear that his contrition is sincere, he is entitled to the reduction.’” United States v. Green, 940 F.3d 1038, 1042 (9th Cir. 2019) (cleaned up) (quoting United States v. Cortes, 299 F.3d 1030, 1038 (9th Cir. 2002)). Although “there can be a fine line between putting on a defense at trial, and expressing contrition at sentencing,” this determination “is not a binary, ‘either/or’ proposition.”

Like the decision to go to trial or a constitutional challenge to a criminal statute, a motion to suppress evidence under the Fourth Amendment “is an assertion of a constitutional right.” United States v. Vance, 62 F.3d 1152, 1157 (9th Cir. 1995). In Vance, the panel noted that a district court erred by “holding it against [the defendant] that he moved to suppress evidence before pleading guilty.” Id. We have repeatedly emphasized that “a sentencing court cannot consider against a defendant any constitutionally protected conduct.” Hernandez, 894 F.3d at 1109 (citation omitted) (emphasis in original). Indeed, “a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment.” 

In the full context of the proceedings, it is apparent that the district court misapprehended the law regarding the acceptance of responsibility reduction and held Aguilera’s constitutionally protected conduct against him.

It is apparent from the record that the district court believed either that a defendant must unconditionally plead guilty to be eligible for the reduction, or that it could consider Aguilera’s constitutional motions and decision to go to trial against him. As discussed above, this reflects a misapprehension of the relevant legal standard.

“To establish harmlessness, the Government must show that ‘it is more probable than not’ that the error did not affect the sentence.” “When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”

Here, the district court acknowledged what the Guidelines range would have been with the reduction, 41 to 51 months, and without it, 51 to 63 months, but analyzed only the 51- to 63-month range. The court considered the standard sentencing factors and imposed a below-range sentence of 45 months. Because the district court did not conduct a separate analysis of the alternative Guidelines range, it did not satisfy the requirements for harmless error.

A court “must explain . . . the reason for the extent of a variance” which “necessarily is different when the range is different.” Id. Contrary to our dissenting colleague’s position, a district court’s mere acknowledgment of an alternative Guidelines range or “mere statement that it would impose the same above-Guidelines sentence no matter what the calculation” is not sufficient to establish harmless error. Id. Additionally, the probation office’s recommended sentence, 41 months, was at the low end of the lower range. Thus, a reasonable probability exists that the court may have imposed a lower sentence had it started from the 41 to 51-month range.