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. 

8/21/26: Guidelines commentary and U.S.S.G. § 2C1.1(b)(3)

In United States v. Cisneros, --- F.4th ---, No. 24-6774 (9th Cir. 2026), the majority affirmed a sentence imposed on Felix Cisneros, Jr., a former special agent for the Department of Homeland Security, who was convicted of taking bribes in exchange for misusing a confidential law enforcement database to help criminals and fraudulently attempting to bring an inadmissible noncitizen into the country through immigration parole.

The issue was whether the district court erred in relying on the Guidelines' commentary to impose an enhancement under § 2C1.1(b)(3) for a bribery offense that “involved an elected public official or any public official in a high-level decision-making or sensitive position.”

Application Note 4(A) to § 2C1.1 defines “high-level decision-making or sensitive position” as “a position characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process.” Then, Application Note 4(B) provides examples of a “high-level decision-making position” and, separately, examples of a “sensitive position.” The examples of a “sensitive position” include “a juror, a law enforcement officer, an election official, and any other similarly situated individual.” 

Cisneros was a law enforcement officer.  So, if the district court properly deferred to Application Note 4, then it correctly determined that the enhancement applied.  The majority held that it did:

We may not defer to the Sentencing Commission’s commentary interpreting the Sentencing Guidelines unless the guideline itself is genuinely ambiguous. United States v. Castillo, 69 F.4th 648, 655–56 (9th Cir. 2023). Before concluding that the guideline is genuinely ambiguous, “a court must exhaust all the ‘traditional tools’ of construction.

Ambiguity alone does not warrant deference. The agency’s interpretation must be reasonable, which means it “come[s] within the zone of ambiguity the court has identified after employing all its interpretive tools.” Kisor, 588 U.S. at 575–76. And the “character and context of the agency’s interpretation” must “entitle[] it to controlling weight,” which it does if “(i) the interpretation is the agency’s official position, rather than any more ad hoc statement not reflecting the agency’s views; (ii) the interpretation implicates the agency’s substantive expertise; and (iii) the interpretation reflects the agency’s fair and considered judgment.”

We hold that U.S.S.G. § 2C1.1(b)(3)’s text is ambiguous as to whether the enhancement applies only to a “sensitive position” that is also “high-level,” that the term “sensitive position” is ambiguous, and that on both questions Application Note 4 warrants deference because it reasonably interprets the guideline. Because Cisneros, as a law enforcement officer, held a “sensitive position” identified in Application Note 4(B), the district court did not err in applying the enhancement.

With two semantically and grammatically plausible readings, we conclude that the guideline is genuinely ambiguous as to whether a “sensitive position” must be “high-level” for the enhancement to apply. See Castillo, 69 F.4th at 655–56. We therefore turn next to the commentary.

Application Note 4(B) to § 2C1.1 provides separate examples of a “high-level decision-making position” and of a “sensitive position.” This structure shows that the Commission did not intend “high-level” to modify “sensitive position.” Because this reading is consistent with both grammatical rules we reviewed above, we defer to it as a reasonable interpretation within the guideline’s zone of ambiguity. Cisneros need not have held a “high-level” position for the enhancement to apply.

[A]fter carefully considering the parties’ arguments and the tools of construction, we agree with our colleague on the district court that the term “sensitive position” as used in § 2C1.1(b)(3) is genuinely ambiguous.

Having found the guideline ambiguous, we may now turn, as the district court did, to the commentary. Application Note 4 warrants deference so long as it provides a reasonable construction of the guideline. Castillo, 69 F.4th at 655–56. We conclude that it does.

Even if rank-and-file law enforcement officers do not make the final decisions on some matters, they still have “substantial influence over the decision-making process.” U.S.S.G. § 2C1.1 cmt. n.4(A) (defining the umbrella term “high-level decision-making or sensitive position”). Thus, the zone of ambiguity of the term “sensitive position” comfortably includes sworn law enforcement officers entitled to make arrests.  Cisneros had arrest authority, which would be enough on its own for a “sensitive” position. See id. at 83. He also could initiate immigration parole requests, an authority he was convicted in this case of misusing. Accordingly, Application Note 4 is a reasonable interpretation of § 2C1.1(b)(3) as applied to Cisneros. The district court did not err in applying the enhancement.

Interestingly, Judge Rawinson's dissent is not about the merits.  Instead, she dissented "because this opinion essentially endorses the district court's cavalier disregard of our mandate. A mandate from this court is not a suggestion or a recommendation. Rather, it is a command to the district court to perform a specific task or take a particular action.  Indeed, the proper resolution for the failure of a district court to follow our mandate, is a remand for the district court to comply."

Whether I agree or disagree with the analysis conducted by the majority, or whether I conclude that the majority employed all available interpretive tools is not the point. The point is that we should not be conducting this analysis in the first instance, especially after we directed the district court to first perform the analysis. As noted on many occasions, "we are a court of review, not of first view."

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.