8/17/26: Case on the authority to appoint Acting United States Attorneys

In United States v. Jackson, et al., --- F.4th ---, No. 25-6470 (9th Cir. 2026), the Court affirmed the district court’s order disqualifying Sigal Chattah, the putative Acting United States Attorney for the District of Nevada, from supervising the prosecutions of the defendants in three cases; and dismissed for lack of appellate jurisdiction defendants’ cross-appeals from the district court’s denial of their motions to dismiss their indictments. 

These cases present the question whether the Attorney General can make someone an Acting United States Attorney—bypassing the usual requirement that a U.S. Attorney be confirmed by the Senate—by designating that person as the first assistant to an already-vacant office of U.S. Attorney. We hold that the Attorney General cannot do so. Although the Federal Vacancies Reform Act of 1998 (FVRA) provides that a first assistant automatically succeeds to a vacant office, that rule of automatic succession applies only to a first assistant who held that position at the time the vacancy arose; it does not apply to a first assistant who never served under a validly appointed official. 5 U.S.C. § 3345(a)(1). Nor can the Attorney General create a de facto Acting U.S. Attorney by delegating all of the functions and duties of the U.S. Attorney to someone else. The FVRA is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office,” so it prohibits a complete delegation of all of the U.S. Attorney’s powers to a single person. Id. § 3347.

Applying those principles, we affirm the district court’s order disqualifying Sigal Chattah, the putative Acting U.S. Attorney for the District of Nevada, from supervising the prosecutions of the defendants in these cases. We dismiss defendants’ cross-appeals because we lack appellate jurisdiction to review the district court’s denial of defendants’ motions to dismiss their indictments.

The government argues that when the Attorney General designated Chattah as the first assistant to the vacant office of U.S. Attorney, section 3345(a)(1) automatically elevated her to Acting U.S. Attorney. But section 3345(a)(1) does not apply to an official who, like Chattah, was not serving as the first assistant at the time the vacancy arose. In the alternative, the government argues that Chattah may exercise all of the powers of the U.S. Attorney by delegation from the Attorney General. But the FVRA is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency.” 5 U.S.C. § 3347(a). The Attorney General therefore cannot rely on general delegation statutes to make Chattah the de facto U.S. Attorney.

The government’s primary argument on appeal is that Chattah automatically became the Acting U.S. Attorney under the FVRA when the Attorney General designated her as the first assistant to the vacant office of U.S. Attorney. The district court rejected that theory, concluding that “subsection (a)(1) operates only on first assistants in place when vacancies begin.” We agree. The FVRA’s text and structure are unambiguous: The statute does not permit the executive to fill an existing vacancy by designating a new first assistant.

Because the statutory text is unambiguous, our analysis could stop here. See Milner v. Department of the Navy, 562 U.S. 562, 574 (2011) (“Legislative history, for those who take it into account, is meant to clear up ambiguity, not create it.”). But the parties also extensively discuss the legislative history and executive practice under the statute, so we address those matters for the sake of completeness. The legislative history is fully consistent with our conclusion that only first assistants already in place at the time a vacancy arose can serve as acting officers under subsection (a)(1). Thus, even if we were to consider legislative history, it would only reinforce our reading of the statute. And although the government points to some evidence of contrary Executive Branch practice following the passage of the FVRA, that evidence does not persuade us to depart from the unambiguous meaning of the statutory text.

Although Chattah was not lawfully serving as the Acting U.S. Attorney, the government argues that the Attorney General validly delegated to her the authority to oversee the U.S. Attorney’s office. That argument is foreclosed by the FVRA’s exclusivity provision. 5 U.S.C. § 3347(a). The general delegation statutes governing the Department of Justice do not allow the Attorney General to appoint Chattah as a de facto U.S. Attorney despite her ineligibility under the FVRA.

We need not decide what kinds of more limited delegations might be permissible in the absence of a Senate-confirmed U.S. Attorney. To resolve these cases, we hold only that that the Attorney General’s authority to delegate does not permit him to vest all of the functions and duties of a vacant office in a single person. See Giraud, 160 F.4th at 406.

Whether Chattah was lawfully appointed the Acting U.S. Attorney under the FVRA or lawfully delegated the functions of that office does not tell us the remedy to which defendants are entitled for an unlawful appointment, and, conversely, we need not answer the remedial question to conclude that Chattah was not lawfully appointed. See Gantt, 194 F.3d at 998. Because “[r]eview of one order does not require review of the other,” we lack jurisdiction over the cross-appeals.

8/3/26: Honest services fraud and federal programs bribery

In United States v. Ridley-Thomas, --- F.4th ---, No. 23-2200 (9th Cir. 2026), the Court affirmed Mark Ridley-Thomas’s convictions for one count of conspiracy in violation of 18 U.S.C. § 371, one count of bribery concerning programs receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B), and five counts of honest services mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, 1346, and 2(b).

Mark Ridley-Thomas (Ridley-Thomas), a former Supervisor on the Los Angeles County Board of Supervisors (Board of Supervisors), appeals his convictions for one count of conspiracy in violation of 18 U.S.C. § 371, one count of bribery concerning programs receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B), and five counts of honest services mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, 1346, and 2(b). The convictions stemmed from charges related to a quid pro quo scheme between Ridley-Thomas and Marilyn Flynn (Flynn), the then-Dean of the School of Social Work at the University of Southern California (USC), for the benefit of Ridley-Thomas’s son Sebastian. Of the Government’s honest services fraud and bribery quid pro quo theories, the jury rejected all but one: that Flynn facilitated a $100,000 donation of university funds to the nonprofit that employed Sebastian in exchange for Ridley-Thomas voting in favor of a “telehealth contract” between the County and USC. For the reasons discussed below, we affirm the convictions.

Ridley-Thomas challenges the Government’s theory of honest services fraud under 18 U.S.C. § 1346 and federal programs bribery under 18 U.S.C. § 666(a)(1)(B). He argues that the Government relied on a legally invalid “thing of value” as an element of both honest services fraud and bribery. According to Ridley-Thomas, § 1346 criminalizes only traditional bribery and kickback schemes, and the “secret funneling” scheme on which the Government relied as one of the quids—the transfer of $100,000 from RidleyThomas’s ballot committee through USC to United Ways and PRPI for Sebastian’s benefit—does not fit within this traditional paradigm of criminal bribery schemes. RidleyThomas also contends that this funneling scheme cannot constitute a “thing of value” under § 666(a)(1)(B). We disagree.

Jurors were instructed that to convict Ridley-Thomas of honest services mail fraud, the Government was required to prove that he “devised or knowingly participated in a scheme or plan to deprive the residents of the County of Los Angeles of their right of honest services;” and that “[t]he scheme or plan consisted of a bribe in exchange for at least one official act by [Ridley-Thomas].” Ridley-Thomas contends that this theory of honest services fraud was legally invalid because perceived reputational benefits cannot constitute a “thing of value” under Skilling. Additionally, he asserts that the Government failed to prove that he engaged in deception that was material to the residents of Los Angeles County. We consider each of these challenges in turn.

Although admittedly not the usual bribery scheme involving the transfer of money to a public official, the transfer of $100,000 from Ridley-Thomas to USC to United Ways for Sebastian’s benefit constitutes a “thing of value” under our precedent. The Government’s evidence established that Ridley-Thomas subjectively valued the ability to transfer $100,000 from his campaign fund to United Ways, specifically to a program that would benefit Sebastian by providing him with employment after he resigned from the legislature. The evidence showed that Ridley-Thomas was aware of the ethics inquiry that coincided with Sebastian’s resignation, and that he valued the ability to indirectly transfer funds for Sebastian’s benefit, swiftly, while concealing the source of the funds. Ridley-Thomas argues strenuously that he broke no campaign finance laws by making this payment, and that because he could have made the donation directly, the funneling service provided by USC cannot constitute a “thing of value.” But this argument overlooks the Government’s evidence showing that Ridley-Thomas attempted to send a payment directly from his campaign fund to another non-profit where Sebastian hoped to be employed, and the funds were returned because the non-profit director was concerned about “nepotism and being seen as doing special favors for special people.” Thus, contrary to Ridley-Thomas’s contention that he could have made the payment directly himself, the Government’s evidence showed that Ridley-Thomas needed a third-party intermediary to effectuate the transfer. Flynn supplied that service.  

Ridley-Thomas contends that the Government’s theory of bribery was predicated on his desire to avoid the nepotistic optics that had hampered his previous attempt to provide $100,000 to AACEP through Community Partners. This argument misstates the Government’s theory regarding the alleged “thing of value.” The Government explicitly alleged in the indictment that the transfer of $100,000 was one of the quids in the quid pro quo scheme between Ridley-Thomas and Flynn, and it maintained this argument throughout trial.

The Government’s consistent argument of a quid pro quo bribery scheme fits within Skilling’s articulation of honest services fraud cases that are consistent with the pre-McNally core of bribery and kickback schemes.

Ridley-Thomas insists that a public official must derive some type of “personal enrichment” to commit honest services fraud. But § 1346 contains no such requirement, and we have held that “private gain is not an element of honest services fraud.”  Nor is there a requirement that each participant in the scheme personally benefit. Although the benefit of the $100,000 transfer accrued most directly to Sebastian, this benefit is a sufficient “thing of value” to support a conviction for honest services fraud.

Ridley-Thomas contends that the Government failed to present sufficient evidence of materiality. Stated differently, Ridley-Thomas emphasizes the lack of evidence that his “constituents would have wanted or expected him to disclose the source of the donation to PRPI or Flynn’s role in facilitating it.” We reject this argument. At a minimum, a rational trier of fact could have determined that had the other County Supervisors been aware of the scheme, one or more of them would have changed their vote (conduct) on the Telehealth amendment. The Government was not required to present direct evidence of Ridley-Thomas’s constituents’ approval or disapproval of his actions.

As with the honest services fraud convictions, Ridley-Thomas contends that the acceptance of perceived reputational benefits is not a “thing of value” under 18 U.S.C. § 666(a)(1)(B).

The transfer [] of $100,000 from Ridley-Thomas’s ballot committee through USC to United Ways for the benefit of Sebastian’s nonprofit constitutes a “anything of value” sufficient to support Ridley-Thomas’s conviction for violating § 666(a)(1)(B). Sufficient evidence also supports a finding that the transaction involved “anything of value of $5,000 or more.” At trial, the Government provided evidence that the Telehealth amendment exceeded $5,000 because the amendment, maintained funding for the contract at $530,323. The Government’s evidence that the value of the Telehealth amendment is more than $5,000, was sufficient for the jury to conclude that the bribe related to a transaction of more than $5,000. Thus, the district court did not err in denying Ridley-Thomas’s motion for judgment of acquittal for his bribery conviction.

The opinion also rejects several instructional challenges and a Batson claim. 

7/29/26: Case on the third point for acceptance and uncharged California wobblers

 In United States v. Yates, --- F.4th ---, No. 25-2987 (9th Cir. 2026), the Court affirmed the sentence imposed on Darneko Yates following a stipulated-facts bench trial at which the district court found Yates guilty of possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1).

On appeal, Yates challenged the government's decision not to move for an extra one-point reduction under U.S.S.G. § 3E1.1(b) because the government had to allocate its resources to preparing for a bench trial.  He also argued that the district court erred in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(7)(B) for possessing the firearm in connection with another felony offense—child endangerment under California Penal Code § 273a(a).

The Ninth Circuit rejected both claims. 

The government was within its discretion to decline to move for an additional one-level reduction under § 3E1.1(b). Because we have yet to substantively interpret § 3E1.1(b) following amendments to that guideline in 2013 and 2023, we do so here and affirm that our precedent remains good law.

Section 3E1.1(a) provides that if a “defendant clearly demonstrates acceptance of responsibility for his offense,” the district court should “decrease the offense level by 2 levels.” Further, “upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently,” the court should “decrease the offense level by 1 additional level.”

“With authority over the third acceptance-ofresponsibility point now firmly in the government’s hands, courts were faced with questions about the scope of the prosecutor’s discretion.” Orona, 118 F.4th at 865. We held in Espinoza-Cano that the government “cannot refuse to file a motion on the basis of an unconstitutional motive (e.g., racial discrimination) or arbitrarily.”

Espinoza-Cano reaffirmed that “there is nothing improper about the government providing an incentive to plea bargain.” Id. at 1138. “Even if [this court] were to equate a stipulated bench trial with an outright guilty plea, the government still would not be compelled to file” a § 3E1.1(b) motion because there are “rational reasons for the government to prefer an outright guilty plea to a stipulated bench trial”—including not “expending resources[,] [and] anticipating, and ultimately defending, a complete appeal.” Id. (cleaned up). In short, “the PROTECT Act makes the third level reduction subject to the discretion of the government, rather than mandatory, upon a timely plea of guilty.”

A few years later, we held in Johnson that “the allocation and expenditure of prosecutorial resources for the purposes of defending an appeal is a rational basis for declining to move for the third reduction point.” 581 F.3d at 1002. Johnson entered a conditional guilty plea, seeking to preserve his right to appeal the denial of a motion to suppress. Id. at 998. We agreed with the government that Johnson had not “accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner.” Id. at 1003 (quoting U.S.S.G. § 3E1.1, cmt. backg’d.). The government was within its discretion not to move for the extra reduction because “[a]voiding the expenditure of additional resources in anticipation of and defending against an appeal is a legitimate governmental interest.” Id. (citation omitted). 

In United States v. Sahagun-Gallegos, we vacated and remanded—considering Amendment 775—so the district court could assess whether the defendant should receive a third point for acceptance of responsibility. 782 F.3d 1094, 1097 (9th Cir. 2015). The PSR stated that the government “would have moved for a third-level reduction if SahagunGallegos had waived his appeal rights.” Id. And, because the amended application note stated that the motion should not be withheld “based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal,” we remanded. Id. (quoting § 3E1.1, cmt. n.6 (2014)). We also stated in a section heading that “[r]emand is required because the Government improperly withheld a motion for a third-level reduction for acceptance of responsibility.” Id.

Amendment 775 is no longer in effect. The Commission adopted Amendment 820 to § 3E1.1 in 2023. U.S.S.G. supp. to app. C, amend. 820 (Nov. 1, 2023) (codified at § 3E1.1). Amendment 820 deleted the statement that Amendment 775 added to Application Note 6.

[A]s we noted in Espinoza-Cano, the PROTECT Act’s language providing for a downward departure “upon motion of the government,” PROTECT Act, § 401(g)(1)(A), 117 Stat. at 671, vests the government “with broad discretion to determine when the adjustment is appropriate,” and this discretion may be leveraged to provide a defendant with an incentive to waive his right to an appeal. 456 F.3d at 1135, 1137–38. Those two features do not depend on the meaning of “preparing for trial,” and thus Amendment 820 supplies no basis to depart from these holdings. Espinoza-Cano and Johnson are still good law. Those decisions—and the plain language and statutory history of the PROTECT Act—confirm that Congress intentionally gave the government extremely broad discretion to decide whether to move for the extra reduction under § 3E1.1(b).

[Here,] [t]he government properly exercised its discretion not to file a motion under § 3E1.1(b). The government declined to move for the extra point because, “although the trial was limited in scope, the government was not able to avoid preparing for trial and still had to allocate its resources to that trial, including by having a second attorney learn the case to be able to try it.”

The district court properly applied the four-level enhancement under § 2K2.1(b)(7)(B) because Yates possessed a firearm in connection with another felony offense. Despite being a wobbler offense, child endangerment under California Penal Code § 273a(a) qualifies as “another felony offense” under § 2K2.1(b)(7)(B) here because the district court properly exercised its discretion to decide that Yates’s conduct was felonious.

Denton’s rationale applies with equal force to determine whether uncharged wobbler conduct constitutes a “felony offense” under § 2K2.1(b)(7)(B). When a defendant uses or possesses a firearm in connection with “a wobbler offense, but the offense is uncharged, no presumption applies as to whether the offense is punishable as a felony (more than one year’s imprisonment) or a misdemeanor (less than one year’s imprisonment).” Denton, 611 F.3d at 652. Consistent with Denton, “the district court must exercise its discretion to  decide whether the offense was punishable by more than one year’s imprisonment.” Id. But the district court need not say any magic words or take an overly formulaic approach. It simply must determine whether a state trial court likely would have punished the offense as a misdemeanor or a felony. See id. To do so, the district court should examine the Alvarez factors, including the nature and circumstances of the offense, the defendant’s attitude towards the offense, the defendant’s character, and the objectives of sentencing. 

The court cannot know for certain whether a wobbler offense will be punishable by imprisonment for a term exceeding one year until the defendant is arrested and charged. If the defendant were arrested and charged with a misdemeanor offense from the outset, the offense would not be punishable by over a year in prison and therefore would not qualify as “another felony offense” under § 2K2.1(b)(7)(B). In other words, with uncharged wobbler conduct, the district court cannot say whether the offense is a misdemeanor or felony without exercising its discretion. Thus, the Denton approach applies equally here. The district court appropriately exercised its discretion under Denton.  

7/28/26: Important categorical analysis decision

In United States v. Lopez, --- F.4th ---, No. 24-3268 (9th Cir. 2026), the Court vacated the sentence imposed on Jonathan Lopez following his guilty plea to possessing a firearm as a prohibited person, in violation of 18 U.S.C. § 922(g)(1), and remanded for resentencing. 

Jonathan Lopez pleaded guilty to possessing a firearm as a prohibited person in violation of 18 U.S.C. § 922(g)(1). The district court enhanced his sentence, under U.S.S.G § 2K2.1(a)(2), after determining that Lopez had previously been convicted of two felony “crimes of violence,” under California Penal Code § 273.5,1 a domestic violence offense that punishes a person who “willfully inflicts corporal injury resulting in a traumatic condition.” 

Lopez appeals his sentence, arguing that a conviction under Cal. Penal Code § 273.5 is not a categorical crime of violence. We have previously held that § 273.5 is a categorical crime of violence, but these decisions are clearly irreconcilable with the Supreme Court’s ruling in Borden v. United States, 593 U.S. 420 (2021), and our recent en banc decision in United States v. Gomez, 165 F.4th 1199 (9th Cir. 2026) (en banc), cert. denied, No. 25-7193, 2026 WL 1377030 (U.S. May 18, 2026). Together, Borden and Gomez make clear that to qualify as a categorical crime of violence an offense requires a mens rea greater than recklessness as to the use of force directed at another person. Thus, in light of Borden and Gomez, we hold that convictions under Cal. Penal Code § 273.5 do not categorically qualify as crimes of violence. 

Our prior precedent holding that § 273.5 is categorically a crime of violence must be overruled under Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), because it is clearly irreconcilable with the Supreme Court’s opinion in Borden, and our en banc decision in Gomez. Thus, we hold that the district court incorrectly applied the sentencing enhancement for two felony crimes of violence in this case.

In Borden, a plurality of the Supreme Court2 held that the elements clause does not include an offense that “requires only a mens rea of recklessness.” 593 U.S. at 423. Notably, the Court also defined what it meant by recklessness for purposes of the violent felony definition: reckless conduct requires that an individual “‘consciously disregard[] a substantial and unjustifiable risk’ attached to his conduct, in ‘gross deviation’ from accepted standards.” Id. at 427 (citing Model Penal Code § 2.02(2)(c)). Thus, as compared to the mental states of purpose and knowledge, “[r]ecklessness” is “less culpable” because it “instead involve[s] insufficient concern with a risk of injury.” Id.

Before Borden, our circuit had also held that “crimes of recklessness cannot be crimes of violence.” Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130 (9th Cir. 2006) (en banc). But we did not distinguish which element of a crime required a mens rea greater than recklessness to qualify as a crime of violence. This distinction is important because crimes with multiple elements may require a different mens rea with respect to each. For example, a battery statute may require that “the force involved” is “volitional,” meaning that an “involuntary motion” would not qualify. Voisine v. United States, 579 U.S. 686, 692–93 (2016). But even if the initial act of force is intentional, the defendant may have acted without intending that the force be directed at anyone else; a defendant may intentionally throw an object, but not know, or intend, that the object would hit another person. Even then, however, the defendant may be guilty of battery if the thrown object hits another person. In such a scenario, the mens rea with respect to the initial act (the throw) is intent, though the statute is “indifferent as to whether the actor has the mental state of intention, knowledge, or recklessness with respect to the harmful consequences of his volitional conduct.”

Borden makes clear that, to qualify as a crime of violence, an offense requires a mens rea greater than recklessness (e.g., purpose or knowledge)4 as to the use of force directed at another person—rather than merely any volitional act involved with the crime. 

Accordingly, the elements clause includes only those crimes that require a mens rea greater than recklessness as to the use of violent force directed at another person—meaning that when the defendant used force, he intended or knew that the force would touch another. 5 Borden explains that “violent felon[ies]” are “best understood to involve not only a substantial degree of force, but also a purposeful or knowing mental state—a deliberate choice of wreaking harm on another, rather than mere indifference to risk.”

In sum, to qualify as a categorical “crime of violence,” an offense must require a mens rea greater than recklessness both as to the use of force sufficient to cause pain or injury and to the fact that the use of force is directed at another person.

While the text of Cal. Penal Code § 273.5 may appear to suggest that the statute requires that the defendant intentionally injure the victim, California appellate courts have consistently explained that § 273.5 “requires only the mens rea of intending to do the assaultive act” that is likely to result in bodily harm and does not require a separate intent to cause injury.

Cal. Penal Code § 273.5(a) is not a categorical crime of violence because the offense “requires only the mens rea of intending to do the assaultive act,” and does not require intent, or knowledge, that the use of force is directed at another.

As a three-judge panel, we are generally bound by our circuit’s precedent. Kohler v. Presidio Int’l, Inc., 782 F.3d 1064, 1070 (9th Cir. 2015). However, we “should reject the prior circuit” precedent when it is “clearly irreconcilable with the reasoning or theory of intervening higher authority.” Miller, 335 F.3d at 893. Our previous caselaw holding that § 273.5 is categorically a crime of violence is clearly irreconcilable with Borden and Gomez.

Convictions under California Penal Code § 273.5 are not crimes of violence. We overrule our prior precedent to the contrary under Miller v. Gammie. See 335 F.3d at 889. The district court, while properly applying our prior precedent, should not have applied U.S.S.G. § 2K2.1(a)(2) to enhance to Lopez’s sentence. We REMAND with instructions to the district court to resentence Lopez consistently with this opinion. 

7/27/26: Two decisions today: ACCA and True Threats

 First, in United States v. Patterson, --- F.4th ---, No. 22-30088 (9th Cir. 2026), the Court affirmed the ACCA sentence imposed on James Patterson following his guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

James Patterson pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Finding that Patterson had previously committed three violent felonies on different occasions, the district court imposed a mandatory minimum sentence under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(1). Patterson appeals, arguing first that his Fifth and Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 (2000), were violated because the judge, rather than a jury, determined that his prior offenses occurred on different occasions, and second that the court erred in holding that his prior Oregon convictions—two for third-degree assault and one for strangulation—are violent felonies. In light of the Supreme Court’s decision in Erlinger v. United States, 602 U.S. 821 (2024), we conclude that the district court violated Apprendi, but that the error was harmless. We also conclude that Patterson’s Oregon state felony convictions are violent felonies. We therefore affirm. 

The district court’s determination that Patterson committed his prior offenses “on occasions different from one another” made him subject to the ACCA, thereby increasing both the statutory minimum and the statutory maximum sentence for his violation of section 922(g). Patterson argues that the district court violated Apprendi because the indictment did not allege that the offenses were committed on different occasions and because the court found that fact itself instead of submitting the question to a jury.

A sentencing court has no “authority [to] . . . assume for itself the responsibility of deciding whether [a defendant’s] past offenses differed enough in time, location, character, and purpose to have transpired on different occasions . . . with an eye toward increasing his punishment.”

Applying Erlinger, we agree with both parties that the district court violated Apprendi by determining whether Patterson committed his prior offenses on different occasions. Making that determination required the court to ascertain facts beyond “a prior conviction and the thenexisting elements of that offense,” and Patterson did not admit those factsin his guilty plea. Erlinger, 602 U.S. at 839; see Mathis, 579 U.S. at 511. Our prior decision in Grisel is “clearly irreconcilable” with Erlinger and has “been effectively overruled” by it.

Based on the record, we are confident that no reasonable jury could determine that offenses committed three years apart were committed on the same occasion. The Apprendi error was therefore harmless beyond a reasonable doubt.

Patterson also disputes the district court’s determination that his Oregon assault and strangulation convictions are violent felonies constituting ACCA predicates.

To determine whether an offense constitutes an ACCA predicate, we employ a “categorical approach” under which “the facts of a given case are irrelevant” and “[t]he focus is instead on whether the elements of the statute of conviction meet the federal standard.”

We first consider Patterson’s third-degree assault conviction. In Oregon, third-degree assault, which carries a punishment of up to five years of imprisonment, is committed by anyone who, “[w]hile being aided by another person actually present, intentionally or knowingly causes physical injury to another.” Or. Rev. Stat. § 163.165(1)(e) (1995); see id. § 163.165(2) (defining third-degree assault as a class C felony); id. § 161.605 (specifying the punishment for class C felonies). Patterson’s conviction is an ACCA predicate because the Oregon statute requires that a defendant intentionally or knowingly cause “physical injury,” so it has “as an element the use . . . of physical force.” 

Finally, we reject Patterson’s argument that Oregon’s strangulation offense is not categorically violent. 

Of note, Judge Berzon has a thorough concurrence regarding the application of the harmless-error standard in cases where no jury trial took place.  She calls for en banc review, so we should be doing the same. 

I write separately to express my continued concerns regarding this court’s application of the harmless error review standard established in Neder v. United States, 527 U.S. 1 (1999), to cases, like this one, in which no jury trial took place.

“If the defendant did not admit an essential fact during his plea colloquy and evidence concerning the fact was not put to a jury, it violates Apprendi for a court to allow the government, postconviction, to introduce new evidence, find that evidence of the fact would have been introduced in a hypothetical jury trial, and then determine that the essential fact would have been found by the hypothetical jury had thenewly produced evidence been before it.” Guerrero-Jasso, 752 F.3d at 1204 (Berzon, J., concurring). This court’s precedents—now extended into the Erlinger context— permit the government to do just that. So I renew my call for this court to reconsider en banc “our Apprendi harmless error cases, particularly Zepeda-Martinez.” Id.

Next, in United States v. Anten, --- F.4th ---, No. 24-7261 (9th Cir. 2026), the Court affirmed Mark William Anten’s jury conviction for transmitting threats to injure another in interstate commerce, in violation of 18 U.S.C. § 875(c).

In an escalating barrage of emails to the Federal Bureau of Investigation (FBI), Mark William Anten eventually declared himself the “UNABOMBER” and stated, “I WILL UNABOMB THE LOS ANGELES FBI HQ.” A jury convicted Anten of transmitting threats to injure another in interstate commerce, in violation of 18 U.S.C. § 875(c). Anten now appeals, arguing that the district court’s jury instructions omitted an objective element required by the statute. We decide that the statute requires an objective element, but the jury instructions covered it. Anten’s other challenge, that the district court invaded the province of the jury, lacks merit too. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We now confirm what we have previously assumed—that § 875(c) requires an objective threat element as well as a subjective mental state element.

To parse out the elements of 18 U.S.C. § 875(c), we begin with the text. Section 875(c) states: “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” The text contains at least two elements: (1) “a communication be transmitted” and (2) “the communication contain a threat.” 

The statute specifies no “mental state with respect to these elements.” Id. In Elonis, the Supreme Court held that a mental state element must be read into § 875(c). 

In Counterman, the Court addressed the constitutional constraints around the mental state element in true threats cases generally, holding that “a mental state of recklessness is sufficient” to satisfy the First Amendment.

A threat is a threat, whatever the speaker’s mental state. To secure a conviction under § 875(c), the government must prove that a defendant both made an objective “threat,” and that he did so with the necessary subjective mental state. 

We next examine what constitutes an objective “threat.” “What is a threat must be distinguished from what is constitutionally protected speech.” Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam). Thus, the statement at issue must be a “true” threat. Id. at 708. “The ‘true’ in that term distinguishes what is at issue from jests, ‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that violence will follow (say, ‘I am going to kill you for showing up late’).”

The Supreme Court has provided less guidance on whose perspective must be considered to determine whether a statement is a “true threat”: the speaker’s, the victim’s, or a hypothetical reasonable person’s. Process of elimination reveals the answer. 

The answer cannot be the defendant speaker’s perspective, or the “threat” element would be no different than the defendant’s subjective mental state requirement. See id. (“Whether the speaker is aware of . . . the threatening aspect of the message is not part of what makes a statement a threat . . . .”). The answer also cannot be the victim’s perspective. The victim of a threat could be a particularly sensitive or paranoid individual, unable to determine whether the statement “taken in context” “convey[s] a real possibility that violence will follow.” See id. (citing Watts, 394 U.S. at 708) (italics added). Thus, whether a statement is a “threat” must be judged through the eyes of a reasonable person. Indeed, without a reasonable-person standard, a defendant could be convicted without ever having uttered a true threat—both the threat’s author and the threat’s target could have made unreasonable assessments.

Having determined that § 875(c) requires both an objective and a subjective element, we now turn to the jury instructions. Anten is correct that the district court’s instructions could have been clearer. In describing what constitutes a “threat,” the instructions did not mention the “reasonable person” standard and did not define a “threat” as a “serious expression.” Nonetheless, we disagree with Anten that the district court omitted the statute’s objective threat element.

We hold that § 875(c) requires both an objective threat element and a subjective mental state element. The district court did not err in its jury instructions, which included both elements. The district court also did not err in its response to the jury’s note. We therefore affirm. 

7/23/26: Fourth Amendment parolee exception case

In United States v. Pereda, --- F.4th ---, No. 25-4461 (9th Cir. 2026), a divided Court reversed the district court’s order granting Binisio Nicolas Pereda’s motion to suppress evidence found in a trailer and a pickup truck and remanded for further proceedings. 

One morning, police officers found Binisio Nicolas Pereda—a state early-release supervisee subject to warrantless search conditions—in a trailer located near his girlfriend’s parents’ home. Officers then searched the trailer and a nearby pickup truck thought to be used by Pereda. They found ammunition in the trailer and drugs in the truck. We must decide whether officers had probable cause to believe that Pereda (1) resided in or controlled the trailer, and (2) owned or controlled the pickup truck. Because the officers had probable cause for both searches, the searches were consistent with the Fourth Amendment. We thus reverse the district court’s order granting Pereda’s motion to suppress and remand for further proceedings.

The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” U.S. Const. amend. IV. Warrantless searches are generally “per se unreasonable.” United States v. Estrella, 69 F.4th 958, 964 (9th Cir. 2023) (simplified). But there are exceptions to this rule. United States v. Brown, 996 F.3d 998, 1004 (9th Cir. 2021). One of the recognized exceptions to the warrant requirement is the so-called parolee exception. Estrella, 69 F.4th at 964. Under the parolee exception, “[a] search of a parolee that complies with the terms of a valid search condition will usually be deemed reasonable under the Fourth Amendment.”

Pereda’s post-release community supervision search conditions authorized a search of his “residence.” When a search condition permits a warrantless search of a parolee’s “residence,” “law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched.” United States v. Grandberry, 730 F.3d 968, 973 (9th Cir. 2013) (simplified). The probable cause needed to search a parolee’s residence is the same well-established probable-cause standard used throughout criminal law. It “is not a high bar[.]”

Considering the whole picture, the officers had ample probable cause to believe that the trailer was Pereda’s residence.

Applying that fact-intensive standard, we conclude that there was a fair probability that Pereda was residing in the trailer. So the officers had probable cause to search the trailer according to Pereda’s parole conditions. The search was thus consistent with the Fourth Amendment.

The officers also reasonably searched the truck parked next to the trailer. As noted above, Pereda’s post-release community supervision terms permitted a warrantless search of any “property under [Pereda’s] control.” That provision applies to the search of a parolee’s vehicle. See id. at 981. So Pereda’s supervised release conditions permitted a search of his vehicle if the officers had probable cause to believe that he owned or controlled the vehicle searched. Dixon, 984 F.3d at 822. Once again, probable cause is “not a high bar” and “requires only the kind of fair probability on which reasonable and prudent people, not legal technicians, act.” Kaley, 571 U.S. at 338 (simplified).

Based on the totality of the circumstances, the facts available to the officers established a fair probability that Pereda owned or controlled the white pickup truck. Armed with probable cause, the officers validly searched the truck according to Pereda’s supervised release terms.  

Judge Paez dissented in a thorough opinion that would have affirmed the district court.

7/21/26: Actual juror bias

In United States v. Collar, --- F.4th ---, No. 23-2939 (9th Cir. 2026), the Court vacated Attila Colar’s conviction on 44 counts arising from an alleged scheme to defraud the Paycheck Protection Program and efforts to obstruct the investigation, reversed the district court’s judgment, and remanded for a new trial based on the district court's failure to adequately address a juror bias.

The Sixth Amendment guarantees criminal defendants the right to trial by an impartial jury. The participation of even a single biased juror in rendering a guilty verdict is structural error requiring reversal. To safeguard this right, a district court must address any signs of bias during jury selection and throughout trial. The court has broad discretion over how to investigate a juror’s impartiality. That discretion, however, governs the form of the inquiry, not whether to conduct one. Once a colorable issue of juror bias arises, the court must investigate before the juror continues to serve, and the inquiry must match the seriousness of the claim. The court cannot defer that obligation simply because the juror is an alternate. 

A jury convicted Attila Colar on 44 federal counts arising from an alleged scheme to defraud the Paycheck Protection Program and efforts to obstruct the investigation. At voir dire, Colar advanced a defense theory that he maintained throughout his trial: law enforcement targeted him based on his race and religion. After the jury was impaneled, an alternate juror expressed actual bias against Colar. He told the court that he had a strong negative reaction to Colar’s defense and that he had concluded that the defense lacked substance and credibility. 

The district court abused its discretion by deferring any meaningful investigation into the juror’s bias until he was needed on the regular panel. And its belated inquiry did not confirm that the juror could set aside the bias he previously expressed or that continued exposure to the defense theory would not revive it. The juror’s resulting participation in the verdict was structural error. We reverse and remand for a new trial.

A district court’s duty to protect against juror bias begins, but does not end, at voir dire. Voir dire allows the parties and the court to identify and investigate prejudice at the outset. Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981). But the court’s obligation does not end when the jury is impaneled; trial courts must remain “ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Smith v. Phillips, 455 U.S. 209, 217 (1982). When information casting doubt on a sitting juror’s impartiality comes to the court’s attention during trial, its continuing obligation to ensure an impartial jury can be described in two steps.

First the court must assess whether the information before it amounts to a “colorable claim of juror bias.” Dyer, 151 F.3d at 974. A colorable claim is not “wholly insubstantial and frivolous.” See Keniston v. Roberts, 717 F.2d 1295, 1298 (9th Cir. 1983). If the information does not rise to a colorable claim, the inquiry ends. But a court presented with a colorable claim of juror bias must take a second step and inquire further. It “must undertake an investigation of the relevant facts and circumstances” and “erect[], and employ[], a suitable framework for investigating the allegation of bias and gauging its effects.” 

The court has considerable discretion in how it investigates juror bias. It may attempt a rehabilitative colloquy,see United States v. Alexander, 48 F.3d 1477, 1484 (9th Cir. 1995), hold an evidentiary hearing, see Hendrix, 549 F.2d at 1227⁠–⁠29, or excuse the juror outright, see Gonzalez, 214 F.3d at 1114. Still, this discretion is “not unbounded.” United States v. Eubanks, 591 F.2d 513, 516 n.3 (9th Cir. 1979). Which framework fits depends on “the content of the allegations, including the seriousness of the alleged misconduct or bias, and the credibility of the source.” Hendrix, 549 F.2d at 1227⁠–⁠28; Dyer, 151 F.3d at 975 (noting that an in camera hearing to investigate potential bias must “be reasonably calculated to resolve the doubts” about a juror’s impartiality). The more serious the claim, the more in-depth the inquiry must be. See Hendrix, 549 F.2d at 1229. In conducting this inquiry, the court “must find facts, not make assumptions,” Dyer, 151 F.3d at 976, resolving any doubts about the juror’s impartiality against the juror, Gonzalez, 214 F.3d at 1114. And the court should promptly investigate such claims, rather than “leaving the matter in doubt” and the juror in place. See Dyer, 151 F.3d at 976. 

Applying this framework, we hold that the district court abused its discretion. We appreciate the difficulty of addressing a pro se defendant’s challenge to a vocal alternate juror. But Juror 48’s statements raised a colorable issue of whether he was biased. That demanded a searching inquiry before he continued to serve on the jury as an alternate. Instead, the court deferred an investigation until Juror 48 was needed for the regular jury panel. This was legal error. See Hinkson, 585 F.3d at 1261⁠–⁠62. And the court’s belated investigation, after Juror 48 had heard evidence, failed to establish that he set aside the bias he previously expressed or that continued exposure to the defense theory would not revive it. Its finding that Juror 48 was not actually biased thus lacked sufficient support in the record. Id. at 1262.