10/20/26: Harmless error analysis applies when a court fails to submit a forfeiture question to the jury

In United States v. Mumma, --- F.4th ---, No. 24-6987 (9th Cir. 2026), the Court (1) affirmed the district court’s denial of Mumma’s motion to dismiss the indictment; (2) affirmed the district court’s “personal forfeiture money judgment” in the amount of $160,000, which represented the proceeds from the sale of Mumma’s house where he committed the offense; and (3) vacated the district court’s restitution order and remanded to the district court to recalculate the restitution amount.

Defendant Todd Mumma appeals his conviction and sentence for sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a). After a jury found Mumma guilty of this offense, the district court imposed a 252-month prison term and ordered Mumma to pay restitution to the victim, M.V., in the amount of $71,200. The district court also entered a “personal forfeiture money judgment” against Mumma in the amount of $160,000, which represented the proceeds from the sale of Mumma’s house, where he had committed the offense. On appeal, we reject Mumma’s challenge to the adequacy of the indictment, and we further conclude that any error by the district court in failing to ask the parties whether the forfeitability of Mumma’s house should be submitted to the jury was harmless. We conclude, however, that at least one of Mumma’s challenges to the calculation of the restitution award is meritorious, and we therefore vacate the restitution order and remand to the district court to recalculate the amount of restitution in accordance with our instructions. We therefore affirm in part, vacate in part, and remand.

For several years, Defendant Todd Mumma resided with his then-wife and his two stepdaughters in a home in Fresno, California. After being contacted by a private investigator who turned over a memory card showing Mumma’s older stepdaughter, M.V., being surreptitiously recorded in her bedroom as she undressed, law enforcement agents obtained a warrant to search Mumma’s home. The search, which occurred on May 9, 2020, revealed that an iPhone-style charger containing a hidden camera was plugged into the wall under a table in M.V.’s bedroom.

Mumma argues that the district court erred in denying his motion to dismiss the indictment. According to Mumma, the indictment provided insufficient notice, because its language was too barebones and failed to allege any specific facts that would establish the elements of the charged offense. Reviewing the sufficiency of an indictment de novo, see we reject this contention. 

This case [] falls within the general rule that “an indictment parroting the language of a federal criminal statute is often sufficient.”

Mumma also contends that the district court committed reversible error by failing to inquire, as assertedly required by Federal Rule of Criminal Procedure 32.2(b)(5)(A), whether the parties wanted the jury to determine the forfeitability of Mumma’s house. We disagree and affirm the district court’s forfeiture order.

We ultimately need not decide whether Mumma is correct in contending (1) that he had a right to a jury trial on the issue of the forfeitability of Mumma’s house and (2) that the district court erred in failing sua sponte to inquire whether the parties wanted the jury to determine that issue. As we explain in the next section, even assuming arguendo that Mumma is correct on these points, we conclude that any error was harmless, although our reasoning differs from that given by the district court and the Government.

[W]e conclude that, even assuming that Mumma would have chosen a jury if asked and that the asserted violation of the court’s rule-based obligation to inquire therefore had the effect of denying Mumma his asserted right to a jury trial under the rule, any error may still be harmless. The resulting scenario, in our view, is directly analogous to the situation in which the court fails to include an element of an offense in the jury instructions, such that the jury never makes a finding as to that element. The Supreme Court has squarely held that such errors are amenable to harmless error analysis, see Neder v. United States, 527 U.S. 1 (1999), and its reasoning is fully applicable here.

We therefore apply Neder’s harmless error standard, but with one important qualification that takes account of the differing burden-of-proof standards that apply in the forfeiture context. For cases in which the indictment seeks forfeiture, we have held that, once guilt for the underlying offense is established beyond a reasonable doubt, the Government need only “prove, by a preponderance of the evidence, a nexus between the property and the crime.” Mancuso, 718 F.3d at 799 (citation omitted). Moreover, because there is no constitutional right to a jury determination of nexus, and any error in failing to submit that element to the jury entails only a violation of a rule and not a constitutional violation, the “Chapman standard” for evaluating the harmlessness of constitutional errors, which asks whether the error “was harmless beyond a reasonable doubt,” Fry v. Pliler, 551 U.S. 112, 116 (2007) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)), does not apply. Instead, we apply “the more forgiving standard of review” for “nonconstitutional errors on direct appeal from federal convictions.” Id. Under that standard, an error is harmless if the Government has shown that “it is more probable than not that the error did not materially affect the verdict.” 

Because it was uncontested and incontestable that, if Mumma committed the offense, he used his home to do so, we have little difficulty holding that it is more probable than not that any rational jury would have found the nexus requirement to be satisfied as to Mumma’s home. Any violation of Rule 32.2 with respect to whether to submit the nexus issue to the jury was therefore harmless in this case. 

Mumma also challenges the district court’s determination of the amount of restitution.

Mumma contends, and the Government concedes, that the district court made an apparent mathematical error in totaling up the components of the restitutionary requests made by the victim, M.V., because the district court’s total is $2,500 higher than the sum of those component parts. 

As Mumma notes, the victim has a pending civil suit against him, and a ruling from this court that the amount of restitution was overpaid by $2,500 would give him the ability to seek an offset against any damages that the victim might recover in that civil action. That possibility is enough to save this issue from mootness, even if the occurrence of that eventuality “is not assured.” Id. Accordingly, we must, at a minimum, remand the restitution order to the district court with instructions to correct this mathematical error. 

For the foregoing reasons, we vacate the district court’s restitution order and remand with instructions to eliminate the excess $2,500 that was erroneously included and to recalculate, as necessary, the victim’s temporary housing expenses covered by the order. In all other respects, we affirm the district court’s judgment and sentence, including the order of forfeiture. 

10/16/26: three nautical miles & replacing a juror during deliberations

In United States v. Lee, --- F.4th ---, No. 23-1814 (9th Cir. 2026), the Court vacated Hoang Xuan “Wayne” Le’s convictions for first-degree murder, conspiracy to commit murder, and possession of a firearm in furtherance of murder, and remanded for further proceedings.

After local fishermen alerted law enforcement that they had encountered a corpse floating in the Pacific Ocean, the Oceanside Police Department recovered the body of Tri Minh “James” Dao. Dao had drowned after suffering two gunshot wounds and blunt force trauma to the head. A jury convicted Defendant Hoang Xuan “Wayne” Le of first-degree murder, conspiracy to commit murder, and possession of a firearm in furtherance of murder, for his role in Dao’s death, under 18 U.S.C. § 1111, § 1117, and § 924(c), respectively. Le now appeals his convictions. He first argues that the federal government lacked jurisdiction to prosecute him because Dao’s death occurred within three nautical miles off the coast of California, an area that he contends is within the state’s exclusive jurisdiction. He further argues that, even if the federal government did have jurisdiction to prosecute him, a new trial is warranted because the district court violated the Sixth Amendment when it replaced a juror during deliberations for reasons stemming from the juror’s views on the merits of the case. 

We hold that, under section 901(a) of the Antiterrorism and Effective Death Penalty Act of 1996, the special maritime and territorial jurisdiction of the United States includes the first three nautical miles from the shoreline. Nonetheless, we vacate Le’s convictions because the replacement of the juror occurred for reasons stemming from the juror’s views on the merits and therefore violated unwaivable Sixth Amendment protections. 

Given the cellphone location data from the boating trip, the Government conceded that “it cannot prove beyond a reasonable doubt that the alleged murder was committed more than three nautical miles from the California shore.” For that reason, the parties stipulated that, if the first three nautical miles from the shoreline are outside the special maritime and territorial jurisdiction of the United States, the murder, conspiracy to commit murder, and firearm charges “should be dismissed for lack of jurisdiction.”

In relevant part, 18 U.S.C. § 7 defines the “special maritime and territorial jurisdiction of the United States” to include “[t]he high seas” and “any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.” 18 U.S.C. § 7(1). Several crimes enumerated in Title 18 of the U.S. Code reference the “special maritime and territorial jurisdiction of the United States.”

In 1988, President Ronald Reagan expanded the territorial sea of the United States beyond three nautical miles from the shoreline. He signed a proclamation that stated: “The territorial sea of the United States henceforth extends to 12 nautical miles from the baselines of the United States determined in accordance with international law.”

Less than a decade later, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1317 (“AEDPA”). Section 901 of AEDPA is titled “Expansion of Territorial Sea” and subsection (a) states:

TERRITORIAL SEA EXTENDING TO TWELVE MILES INCLUDED IN SPECIAL MARITIME AND TERRITORIAL JURISDICTION.—The Congress declares that all the territorial sea of the United States, as defined by Presidential Proclamation 5928 of December 27, 1988, for purposes of Federal criminal jurisdiction is part of the United States, subject to its sovereignty, and is within the special maritime and territorial jurisdiction of the United States for the purposes of title 18, United States Code.

Section 901(a) proclaims that, “for purposes of Federal criminal jurisdiction,” “all the territorial sea of the United States” is “within the special maritime and territorial jurisdiction of the United States for the purposes of title 18, United States Code.” AEDPA § 901(a) (emphasis added). By using the word “all,” the plain text of the statute brings the entire territorial sea designated by Proclamation 5928 within the special maritime and territorial jurisdiction, at least for purposes of Title 18 crimes. 

The territorial sea of the United States is [] defined as the first twelve nautical miles off the shoreline. That definition was, in turn, incorporated by the language of section 901(a) of AEDPA: “The Congress declares that all the territorial sea of the United States, as defined by Presidential Proclamation 5928 of December 27, 1988, for purposes of Federal criminal jurisdiction is part of the United States, subject to its sovereignty, and is within the special maritime and territorial jurisdiction of the United States for the purposes of title 18, United States Code.” AEDPA § 901(a).

Contrary to Le’s assertions, our interpretation does not fail to give effect to the words “out of the jurisdiction of any particular State” in 18 U.S.C. § 7(1). Those words mean that 18 U.S.C. § 7(1) does not grant authority to the federal government to prosecute crimes within the first three nautical miles from shore—because that area is within the states’ jurisdictions. But AEDPA provides federal authority over some crimes committed in that area—at least those enumerated in Title 18 that require that the crime have occurred within the special maritime and territorial jurisdiction of the United States. By its express language, AEDPA applies only to crimes defined in Title 18, but there are also crimes defined elsewhere in the U.S. Code that are not affected by AEDPA given their placement outside Title 18.

Having determined that the Government had jurisdiction to bring this prosecution, we turn to the juror removal issue.

Dismissal of a juror is appropriate only if the available evidence is “sufficient to leave one firmly convinced that the impetus for a juror’s dismissal is unrelated to [his or her] position on the merits.” Symington, 195 F.3d at 1087 n.5. The trial record here leaves us far from “firmly convinced.” Id. BJR directly confirmed, in response to the district court’s question, that her mental health crisis was “based on pressure from other jurors to reach a specific verdict.” That statement reflects a causal connection between the jury pressure and BJR’s mental health deterioration. The rest of the record further bolsters the conclusion that BJR’s removal stemmed from her view of the merits. 

[W]here, like here, the record reveals that a juror’s mental health crisis stems from her disagreement with other jurors about the merits of the case, those mental health concerns cannot be treated as an independent basis for removing the juror. If a juror whose mental health deteriorated as a direct consequence of being pressured to change her vote could be dismissed on that basis, that would create a dangerous mechanism for circumventing the unanimity guarantee. Jurors could then pressure a holdout until her resulting distress provided the apparent “independent” ground for her removal.  

We recognize that the district court faced a genuinely difficult situation in supervising a juror in evident distress. It is undisputed that BJR could not have continued serving on the jury. And it is clear the district court was trying to be as fair as possible. But faced with a juror whose distress both stemmed from her view of the prosecution’s case and was severe enough to preclude her from continuing to deliberate, our caselaw instructs that the only constitutionally permissible path forward was to declare a mistrial.

To determine whether the error affected Le’s substantial rights, we ask whether there is “a reasonable probability that, but for the error, the result of the proceeding would have been different.” Greer v. United States, 593 U.S. 503, 507– 08 (2021) (citation omitted). That standard is satisfied here.

We now turn to the final prong of the plain error standard—whether letting the error stand would seriously undermine confidence in the judicial process. Few things could more seriously affect the fairness, integrity, and public reputation of judicial proceedings than removing a juror because she does not agree with other jurors on whether the defendant should be found guilty. See id. at 1169. We cannot permit jurors to accomplish indirectly what the Sixth Amendment plainly forbids them from accomplishing directly.

The Government contends that because Le was aware of his right to a unanimous jury and intentionally did not invoke it at the appropriate time, he waived his ability to raise this issue on appeal.  But some rights cannot be waived, and some waivers cannot be enforced. 

Simply put, removing a juror based on her view of the merits violates the same core protections as the unwaivable errors in Lopez and Ullah. We thus conclude that a defendant cannot waive a challenge to a juror’s removal when the removal violates Symington and runs afoul the Sixth Amendment’s unanimity guarantee. In light of our holding that the record reflects a reasonable possibility that BJR’s removal stemmed from her views on the merits and thus violated Symington, Le’s consent to her removal does not foreclose our review of the Sixth Amendment error.  

10/13/26: The law on 18 U.S.C. § 922(g)(3) is still the law

In United States v. Youngblood, --- F.4th ---, No. 24-7629 (9th Cir. 2026), the Court affirmed Dylan Youngblood’s conviction under 18 U.S.C. § 922(g)(3) for possessing a firearm while being an unlawful user of or addicted to a controlled substance.  Basically, the Opinion says the law on § 922(g)(3) is still the law. 

Following his entry of a conditional guilty plea, Dylan Youngblood appeals the district court’s denial of his motion to dismiss his indictment for possessing a firearm while being an unlawful user of or addicted to a controlled substance in violation of 18 U.S.C. § 922(g)(3). Youngblood contends that § 922(g)(3) is both facially unconstitutional and unconstitutional as applied to him under the Second Amendment. 

After Youngblood filed his Opening Brief and before the government filed its Answering Brief, our court held that § 922(g)(3) is facially constitutional. United States v. Stennerson, 150 F.4th 1276, 1285 (9th Cir. 2025). Then, after Youngblood filed his Reply Brief, the Supreme Court ruled that § 922(g)(3) was unconstitutional as applied to an individual who “used marijuana ‘about every other day.’” United States v. Hemani, 608 U.S. 772, 778, 795 (2026). Because Stennerson remains binding on this court post-Hemani and Youngblood has waived his as-applied challenge, we affirm.

10/5/26: Case on tolling orders under 18 U.S.C. § 3292

In United States v. So, --- F.4th ---, No. 24-5085 (9th Cir. 2026), a divided Court affirmed Hyoung Nam “Brian” So’s conviction on one count of conspiracy to commit federal funds bribery, in violation of 18 U.S.C. § 371.  The majority held that the district court did not err in denying So’s motion to dismiss the indictment as untimely. 

The offense of conspiracy has a five-year statute of limitations. See 18 U.S.C. §§ 371, 3282(a). The limitations period for conspiracy “starts to run on the date of the last overt act alleged” in the indictment.

Tolling under § 3292 does not take effect in the absence of an order from “the district court before which a grand jury is impaneled to investigate the offense” that makes two findings pertaining to the offense: (1) that an “official request” has been made to a foreign governmental authority for “evidence of [the] offense,” and (2) “that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country.” If those findings are made, then the district court “shall suspend the running of the statute of limitations for the offense.”

We hold that tolling under § 3292 applies to every offense—that is, a course of conduct in violation of a particular statutory prohibition—that is covered by the district court’s tolling order and for which the required statutory findings have been made. Although the tolling order must identify which offenses are tolled, it need not do so by citation to the relevant statutory prohibition. Whether a particular offense is embraced by the tolling order is a question of construction. And similar to how we construe an indictment, we determine the identity of the offenses covered by a tolling order based on their substance, not their label.

Although the tolling order here did not list by name or citation the charged offense of conspiracy to commit federal funds bribery, it is clear from context that this offense was covered by the tolling order. The district court ordered that the statute of limitations be suspended “for the offenses set forth in the government’s ex parte application.” And in providing detail on those offenses, the government’s application described conduct that embraced not only the essential facts of So’s conspiracy charge, but also other key facts alleged in the indictment. The offense charged is thus substantively the same as one of the offenses for which tolling was sought and ordered. The failure to identify this offense by the correct statutory citation was merely an “error, defect, irregularity, or variance that does not affect substantial rights.” Fed. R. Crim. P. 52(a). 

However, as Judge Lee's dissent points out: 

The problem here is that the federal government in its ex parte application never specified “the offense”—conspiracy to commit offense or to defraud United States under 18 U.S.C. § 371—that became the basis of the guilty verdict. Instead, the government listed five other offenses that were never charged. Based on the government’s application, the district court tolled the statute of limitations for those five offenses only—but not the actual offense that defendant Brian So committed.

We must apply the law as written by Congress: Section 3292 requires the government to specify “the offense” for which it wants the statute of limitations tolled. While I agree with the majority that Section 3292 does not require a specific U.S. Code citation, the government must provide sufficient information for the court to understand which offense is at issue. Nothing in the government’s application or the court order suggests that “the offense” being tolled was the conspiracy to defraud the United States. I reluctantly believe that So’s conviction must be overturned. I respectfully dissent. 

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.