12/28/23: Case on Allen charges

In United States v. Sproat, --- F.4th ---, No. 22-10249 (9th Cir 2023), the Court affirmed Robert Sproat’s securities fraud conviction in a case in which Sproat argued that the district court improperly coerced the jurors into reaching a unanimous guilty verdict by sending them home at 4:30 p.m. with the instruction to return the next day.

When a defendant “offer[s] facts that fairly support an inference that jurors who did not agree with the majority felt pressure from the court to give up their conscientiously held beliefs in order to secure a verdict,” the court “must proceed to the Allen charge analysis.”  Defendant has not offered such facts here. Telling the jurors to return the next day neither explicitly nor implicitly encouraged them to reach a unanimous verdict. 

12/27/23: Lengthy decision on analogue-based drug-trafficking prosecutions

In United States v. Galecki, --- F.4th ---, No. 20-10288 (9th Cir. 2023), the Court affirmed Benjamin Galecki’s and Charles Burton Ritchie’s drug-trafficking and money-laundering convictions in connection with their distribution of “spice,” a synthetic cannabinoid product; reversed their mail and wire fraud convictions; and remanded for further proceedings. The opinion is long and covers a host of issues.  

First, the defendants argued that all of their convictions should be set aside on the ground that the district court erred in refusing to suppress evidence seized during or as a result of a raid at Zencense’s Nevada warehouse. The Court held that because the warehouse was leased by the company and not by the defendants personally, they failed to establish that they have Fourth Amendment standing to challenge the search and that the district court therefore properly denied their motions to suppress.

Next, considering the record as a whole, the Court concluded that a rational jury could find beyond a reasonable doubt that the defendants had the scienter required for an Analogue Act case.

The Court also rejected the defendants' challenge to the deliberate indifference instruction given at trial, and also rejected the defendants' as-applied vagueness challenge to the statutory definition of a “controlled substance analogue” in the Analogue Act.

The Court found no error in district court’s failure to compel the Government to grant use immunity to two potential defense witnesses who would have testified as to the defendants’ scienter concerning whether XLR-11 was covered by the Analogue Act. The Court held that defendants failed to make the requisite showing of a direct contradiction in testimony that resulted in a fundamentally unfair distortion of the fact-finding process.

Rejecting the defendants’ contention that the evidence was insufficient to support their convictions for operating a continuing criminal enterprise in violation of the CSA, the Court held that the evidence was sufficient to permit a rational jury to conclude that the defendants acted “in concert” with five or more persons.

Turning to the mail and wire fraud convictions, the Court held that "[w]hile [a] misrepresentation may be material without inducing any actual reliance,” —as in the case of a false statement to an undercover law enforcement officer who is secretly aware of the defendant’s fraudulent scheme—there can be no materially false statement when both the listener and the hearer know and intend that the words being used have the same distinctive meaning."  Thus, the defendants were entitled to judgment of acquittal on these counts, because the Government presented no evidence that the specific alleged misrepresentations were materially false to anyone who bought Zencense’s products. 

Finally, the Court addressed whether the jury’s general verdict on the money laundering offenses—which did not specify on which predicate offenses it relied—may stand. The Court held that any error under Yates v. United States, 354 U.S. 298 (1957), in allowing the money laundering convictions to be based on the mail and wire fraud conduct, rather than on the CSA offenses, was harmless beyond a reasonable doubt.

12/26/23: Venue, Vicinage, and Section 1001 Essential Conduct & another case too.

The day after Christmas brings us two decisions

First, in United States v. Fortenberry, --- F.4th ---, No. 22-50144 (9th Cir. 2023), the Court reversed former congressman Jeffrey Fortenberry’s conviction for making false statements, in violation of 18 U.S.C. § 1001(a)(2), without prejudice to retrial in a proper venue, and remanded.

"The Constitution plainly requires that a criminal defendant be tried in the place where the criminal conduct occurred. The district court determined, and the government urges on appeal, that a Section 1001 violation occurs not only where a false statement is made but also where it has an effect on a federal investigation. We conclude that an effects-based test for venue of a Section 1001 offense has no support in the Constitution, the text of the statute, or historical practice. Consequently, we reverse Fortenberry’s conviction without prejudice to retrial in a proper venue."

"[H]istory confirms what the Constitution commands. The founding generation had a deep and abiding antipathy to letting the government arbitrarily choose a venue in criminal prosecutions. Implying an effects-based test for venue in Section 1001 cases, when Congress has not so specified, would allow just that, in derogation of our historical principles. Because a Section 1001 offense is complete at the time the false statement is uttered, and because no actual effect on federal authorities is necessary to sustain a conviction, the location of the crime must be understood to be the place where the defendant makes the statement."

"Fortenberry’s trial took place in a state where no charged crime was committed, and before a jury drawn from the vicinage of the federal agencies that investigated the defendant. The Constitution does not permit this. Fortenberry’s convictions are reversed so that he may be retried, if at all, in a proper venue. See Smith, 599 U.S. 236. The case is remanded for further proceedings that are consistent with this decision."

Next, in United States v. De Leon Guerrero, --- F.4th ---, No. 22-10042 (9th Cir. 2023), the Court affirmed De Leon Guerrero's convictions on two counts of attempted enticement of a minor, but reversed, vacated, and remanded as to three special conditions of supervised release.

This case arose from a sting in Guam created by federal agents to identify individuals “with access to Andersen Air Force Base who were willing to engage in sexual conversation or attempt to meet a minor for sexual contact.”  The Court determined that it was bound by its prior opinion in United States v. Lopez, 4 F.4th 706 (9th Cir. 2021).

The Court also vacated certain conditions of supervised release related to sex offenders.  

12/12/23: Case on Fourth Amendment trespass theory.

 In United States v. Esqueda, --- F.4th ---, No. 22-50170 (9th Cir. 2023), the Court affirmed the district court’s denial of Christopher Esqueda’s motion to suppress evidence in a case in which Esqueda entered a conditional plea to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1).

The Court held that an undercover officer who physically enters a premises with express consent and secretly records only what he can see and hear by virtue of his consented entry does not trespass, physically intrude, or otherwise engage in a search violative of the Fourth Amendment. The Court held that the Supreme Court’s decisions in Jardines and Jones do not disturb this well-settled principle.

12/8/23: Good minor role decision

In United States v. Klensch, --- F.4th ---, No. 22-50222 (9th Cir. 2023), the Court vacated a sentence imposed following the defendant’s guilty plea to one count of transportation of an illegal alien, and remanded for resentencing. 

On appeal, Klensch argued that the district court applied the wrong legal standard when it determined that he was not entitled to a minor-role reduction under U.S.S.G. § 3B1.2 because he personally transported two men.

The opinion contains helpful language rejecting the government's argument for plain-error review.  As to the merits, the Court explained: 

Here, the district court’s analysis of the minor-role reduction is thin. It did not question the parties about or discuss at the sentencing hearing the factors that govern the comparative-liability analysis or the facts relevant to that analysis. Rather, after the parties’ arguments, it simply pronounced: "In this particular case, Mr. Klensch was the one transporting the individuals. And I don’t find that there is sufficient evidence that his role was minor in this case."

Here, the district court’s cursory explanation gives no indication that it considered the required factors or did any comparative analysis of Klensch’s conduct. While it was not required to mechanically analyze each factor or reference them verbatim on the record, Diaz, 884 F.3d at 914, 916, providing some explanation, even in general terms, of how the considerations embodied in the factors apply in this case “is part and parcel of considering” them.

The district court’s singular and cursory explanation for not granting a minor-role reduction, referencing only that Klensch drove the two men, indicates that the district court improperly relied “on courier conduct as dispositive,” despite the Guidelines’ clarification “that performance of an essential role . . . is not dispositive.”

While we generally assume that the district court applied the correct legal standard, we cannot do so when the record indicates the contrary.

The Court, therefore, vacated and remanded, although it affirmed the district court's imposition of a dangerous-weapons enhancement

11/8/23: Case on the leader-or-organizer enhancement under Section 3B1.1(c)

In United States v. Vinge, --- F.4th ---, No. 10300 (9th Cir. 2023), the Court affirmed a sentence for possession with intent to distribute methamphetamine, in a case in which Daniel Vinge argued that the district court should not have applied the leader-or-organizer enhancement under Section 3B1.1(c) of the Sentencing Guidelines because no evidence suggests that he “exercised control over others” in the organization.

The Court explained:  "Because our recent cases have not been entirely clear with respect to the distinction between an organizer and a leader under § 3B1.1(c), we reiterate that the level of control required to be an organizer is only 'the ability and influence necessary to coordinate the activities of others to achieve the desired result.'"

"We thus reiterate that for the organizer enhancement to apply, what is required is 'the necessary influence and ability to coordinate the behavior of others so as to achieve the desired criminal result.' These softer forms of authority or control are sufficient for a determination that a defendant is an organizer."

The Court also rejected Mr. Vinge's other sentencing arguments. 

10/6/23: Case on the Major Crimes Act and the serious bodily injury enhancement under U.S.S.G. § 2A3.1(b)(4)(B)

In United States v. Scott, --- F.4th ---, No. 21-30128 (9th Cir. 2023), the Court  (1) affirmed Luke Scott’s conviction for felony child abuse under the Major Crimes Act, 18 U.S.C. § 1153, and Mont. Code Ann. § 45-5-212; and (2) affirmed the district court’s application of a serious bodily injury enhancement under U.S.S.G. § 2A3.1(b)(4)(B) to Scott’s sentence for aggravated sexual abuse by force or threat in violation of 18 U.S.C. § 2241(a).

These were consolidated appeals arising from separate prosecutions for acts against different victims. 

In the first case, the Court held that government properly charged Scott with felony child abuse under the Major Crimes Act and the Montana statute. The Major Crimes Act provides federal jurisdiction for the prosecution of Native Americans for discrete crimes, including “felony child abuse.” It also provides that, when an enumerated offense is not defined and punished by federal law, it shall be defined and punished in accordance with the laws of the state in which such offense was committed. 

The Court rejected Scott’s argument that Congress’s 2013 amendments to the Major Crime Act—including its addition of “a felony assault under section 113”—displaced the crime of felony child abuse under the Major Crimes Act such that the government may no longer use state law to define the crime. 

In the second case, the Court rejected Scott’s argument that the district court’s imposition of the serious bodily injury enhancement under § 2A3.1(b)(4)(B) for his conviction for aggravated sexual abuse resulted in improper double counting.  This issue is a bit complicated.  But ultimately, The Court adopted the Tenth Circuit’s analysis, which reasoned that (1) § 1B1.1 provides different definitions of “serious bodily injury”—a Harm Definition and a Conduct Definition; (2) the Conduct Definition cannot be used when applying the Sexual Abuse Guideline; (3) nothing precludes a sentencing court from considering whether the victim’s injuries “resulting directly from the sexual abuse as well as those suffered during relevant conduct surrounding that offense” qualify as serious bodily injury under the Harm Definition; and (4) the serious-bodily injury enhancement can apply to a sexual abuse offender convicted under convicted under § 2241, but it must be based on the fact that the victim’s injuries meet § 1B1.1’s Harm Definition.

10/4/23: Sentencing case in the 922(g)(1) context

In United States v. Barlow, --- F.4th ---, No. 22-30030 (9th Cir. 2023), the majority affirmed a sentence imposed on John Barlow following his guilty plea to possessing a firearm as a felon.  

On appeal, Barlow raised three objections to his sentence: (1) the district court’s application of a four-level enhancement for possessing the firearm in connection with another felony violated his Fifth and Sixth Amendment rights under Apprendi, 530 U.S. 466, and Alleyne, 570 U.S. 99; (2) the application of the same four-level enhancement was clear error because there was insufficient evidence to support the finding that Barlow used or possessed a firearm in connection with the felony of assault with a weapon under Mont. Code Ann. § 45-5-213; and (3) the district court erred by determining that Barlow’s prior conviction under Georgia law for aggravated assault was a “crime of violence” resulting in an increased base offense level calculation under the Guidelines.

The majority rejected these arguments, holding: "we affirm because Barlow has not shown that the district court erred in calculating his sentence under the Guidelines. Barlow has not shown that applying the four-level enhancement violated his rights under the Fifth or Sixth Amendments. He has not shown that the district court’s factual finding that Barlow possessed the firearm in connection with his commission of assault with a weapon under Montana law is erroneous. Finally, the district court correctly determined that Barlow’s prior Georgia conviction for aggravated assault was a '"crime of violence.'"

9/29/23: Case on 1326

In United States v. Cabrera, --- F.4th ---, No. 21-50259 (9th Cir. 2023), the Court affirmed Cabrera’s 2021 convictions and sentence for attempted illegal entry and attempted illegal reentry under 8 U.S.C. §§ 1325 and 1326. 

First, the Court held that the district court did not err in denying Cabrera’s motion to suppress a statement he made to a Border Patrol agent about coming to the United States to find work. The Court explained that, on the facts before it, the questioning was permissible pursuant to Terry. 

Second, the Court held the district court did not abuse its discretion in excluding lay witness testimony about the “factual situation in Tijuana in November 2019”—specifically, the “enormous backlog of Central American migrants seeking asylum” due to the “metering” and “Remain in Mexico” policies in place at the time.

Third, the Court determined the district court did not abuse its discretion in formulating jury instructions on the requisite intent for a § 1326 conviction.  This issue had to do with the intent to enter and go about free from official restraint. 

Finally, the Court concluded that the district court did not err in calculating Cabrera’s criminal history score.  This issue had to do with how to calculate prior time-served sentences for purposes of criminal history.  

9/20/23: Case on shipping misbranded drugs in interstate commerce 21 U.S.C. §§ 331(a), 333(a)(2).

In United States v. Marschall, --- F.4th ---, No. 22-30048 (9th Cir. 2023), the Court affirmed Richard Marschall’s conviction under the Federal Food, Drug, and Cosmetic Act (“FDCA”) for shipping misbranded drugs in interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2).

On appeal, Marschall argued that the district court erred in concluding that the charged offense did not require proof that he knew that the drugs he shipped were misbranded.

The Court rejected this argument, concluding there was no mens rea requirement: 

[W]e conclude that this is the unusual case in which a public welfare offense lacks a scienter element even though it is a felony with moderately severe potential penalties. In short, (1) Congress augmented, into a felony, a predicate misdemeanor offense that concededly lacks a scienter requirement; (2) it did so by adding, not a scienter requirement, but a prior conviction requirement; (3) this action contrasts with Congress’s explicit addition of a scienter requirement in the other clause of § 333(a)(2); and (4) the prior conviction requirement, as a functional matter, largely serves the same purposes as an express scienter requirement. Under this confluence of circumstances, we conclude that the first clause of § 333(a)(2) does not require the Government to prove that the defendant knew that the drugs were misbranded. Accordingly, the indictment here did not need to allege that Marschall knew that the labeling of the “Dynamic Duo” rendered those products misbranded in the respects described in the indictment. The district court therefore properly denied Marschall’s motion to dismiss the indictment. 

9/13/23: En banc decision regarding the procedure for imposing supervised release conditions

In United States v. Montoya, --- F.4th ---, No. 21-50129 (9th Cir. 2023) (en banc), the Court considered whether a district court must orally pronounce all discretionary conditions of supervised release, including those referred to as “standard” in U.S.S.G. § 5D1.3(c), in order to protect a defendant’s due process right to be present at sentencing.  The Court held in the affirmative. 

Because a defendant has a right to be present at sentencing “to the extent that a fair and just hearing would be thwarted by his absence,” Snyder, 291 U.S. at 108, it follows that a defendant has the right to be present during the oral pronouncement of conditions of supervised release to the extent “his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against” the condition, id. at 105–06. 

A defendant’s due process right to be present at a critical stage is not violated if the district court imposes mandatory conditions of supervised release only in the written judgment. See Napier, 463 F.3d at 1043. Because these conditions are required under 18 U.S.C. § 3583(d), a defendant cannot defend against them, see Diggles, 957 F.3d 14 USA V. MONTOYA at 558, and so a defendant’s presence during the oral pronouncement of mandatory conditions “would be useless, or the benefit but a shadow,” Snyder, 291 U.S. at 106–07.13 

The situation is different when a court imposes a condition that is not mandated by 18 U.S.C. § 3583(d) and is thus discretionary. Because district judges enjoy “wide latitude” to impose non-mandatory conditions of supervised release, United States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006), which is constrained only by the requirements of 18 U.S.C. § 3583(d)(1)–(3), the defendant has a due process right to be present to defend against them, Snyder, 291 U.S. at 105.

A defendant’s right to be present for the imposition of a condition of supervised release to which a defendant could raise a defense applies to any condition imposed by the district court that is not mandated by statute, without regard to whether the Guidelines label this condition “standard” under § 5D1.3(c) or “special” under § 5D1.3(d). Although the “standard” conditions might be “boilerplate” in form, Napier, 463 F.3d at 1043, the district court retains full discretion over the decision to impose them, subject only to the requirements of 18 U.S.C. § 3583(d)(1)–(3), based on its individualized assessment of the defendant.

We therefore overrule Napier to the extent it held that a district court need not orally pronounce the standard conditions recommended by § 5D1.3(c) at the sentencing hearing.

In reaching this conclusion, we join five of our sister circuits in holding that, for purposes of determining whether a defendant has a due process right to be present for sentencing (specifically, for the oral pronouncement of a condition of supervised release), what matters is whether a condition is mandatory or discretionary under 18 U.S.C. § 3583(d).  

If a condition is mandatory, then a defendant need not be present for its oral pronouncement. If a condition is discretionary, the district court must orally pronounce it in the presence of the defendant, without regard to how it is classified by the Guidelines. This bright-line rule ensures that a defendant’s right to be present at sentencing is protected and more faithfully adheres to the text of § 3583(d).

We agree with our sister circuits that the district court may satisfy the oral pronouncement requirement when imposing discretionary conditions of supervised release at the sentencing hearing in two different ways. The district court can recite each condition it elects to impose. Alternatively, where the defendant has been informed of the proposed conditions of supervised release in advance of sentencing, the court can incorporate those conditions by reference at the hearing.

In sum, we hold that a district court must orally pronounce all discretionary conditions of supervised release in the presence of the defendant. We further hold that this pronouncement requirement is satisfied if the defendant is informed of the proposed discretionary conditions before the sentencing hearing and the district court orally incorporates by reference some or all of those conditions, which gives the defendant an opportunity to object. 

In this case, the limited remand approach is appropriate. We vacate only the conditions of supervised release that were referred to as the “standard conditions” in the written sentence but were not orally pronounced. 

Remand is required so that the district court can cure its error by orally pronouncing any of the standard conditions of supervised release that it chooses to impose and by giving Montoya a chance to object to them. Because the failure to pronounce those conditions is the only sentencing error—the district court made adequate findings supporting the reasonableness of the custodial sentence and properly imposed the mandatory conditions and orally pronounced special conditions—we exercise our discretion “to remand to the district court for the limited purpose of” reconsidering the supervised release conditions we have vacated herein.  

8/31/23: Case on 11(c)(1)(B) plea agreements

In United States v. Torres-Giles, --- F.4th ---, No. 22-50112 (9th Cir. 2023), the Court affirmed a sentence in a case in which Urbano Torres-Giles pleaded guilty to attempted reentry following removal and entered a Federal Rule of Criminal Procedure 11(c)(1)(B).  

During sentencing, the district court stated it rejected the plea agreement because of its fast-track recommendation.  On appeal, the Court explained that the defendant has no right to withdraw a Type B plea if the court does not follow the government’s recommendation or the defendant’s request, and a Type B agreement is not binding upon the court. Further, so long as the defendant is apprised of the consequences of entering into a Type B plea agreement and accedes to them voluntarily, he has no right to withdraw from the agreement on the ground that the court does not accept the sentencing recommendation or request. Accordingly, the district court’s use of the word “reject” in the context of a Type B plea agreement can have no legal effect.

The majority also held the district court did not plainly err in its factual finding that Torres-Giles had assured the court at the prior sentencing hearing that he would not return to the United States. 

There is a good dissent on this issue by Judge Mendoza.  He explains: "a district court’s speculation about statements potentially made during a prior hearing is a “clearly erroneous fact” that cannot be used as a sentencing factor."

Moreover, the attorney-client relationship “is a quintessential principal-agent relationship” where “the client retains ultimate dominion and control over the underlying claim.” Mr. Torres-Giles exercised that control by correcting his lawyer. Unlike trial management decisions, which are “the lawyer’s province,” the decision to admit or deny an aggravating sentencing factor is of the kind “reserved for the client.” The sentencing court should not have relied on the attorney’s uncertain memory given Mr. Torres-Giles’s statement that his attorney was wrong; that “I didn’t say those things.” The majority also faults Mr. Torres-Giles for not presenting a transcript from the prior hearing or other evidence to support his claim. But that is not his burden. A sentencing court may not assume an aggravating factor and require the defendant to disprove it. 

8/31/23: Case on 1326(d)

In United States v. Portillo-Gonzalez, --- F.4th ---, No. 21-10260 (9th Cir. 2023), the Court affirmed the district court’s judgment in a case in which Praxedis Saul Portillo-Gonzalez entered a conditional guilty plea to unlawful reentry by a previously removed alien, in violation of 8 U.S.C. § 1326, after the district court denied his motion under 8 U.S.C. § 1326(d) to dismiss the indictment.

Portillo-Gonzalez's argument was that his indictment should have been dismissed on the ground that the removal order underlying his unlawful reentry charge was invalid due to an error by the immigration judge at his removal hearing, as to whether he was eligible for voluntary departure. 

Portillo-Gonzalez claimed that, under controlling Ninth Circuit precedent, the IJ’s error sufficed to establish that he satisfied all of the § 1326(d) requirements for collaterally challenging a removal order in the context of a § 1326 prosecution. 

The Court rejected that argument, holding that United States v. Palomar-Santiago, 141 S. Ct. 1615 (2021) abrogated the prior Ninth Circuit case law on which Portillo-Gonzalez relied: 

Because, under Palomar-Santiago, an administrative appeal to the BIA was “available” to challenge PortilloGonzalez’s 2000 removal order, his failure to exhaust that remedy means that he did not satisfy § 1326(d)(1). Because he could have sought judicial review had he taken such an appeal, he was not “deprived . . . of the opportunity for judicial review” and therefore did not satisfy § 1326(d)(2). And because he must satisfy all three requirements to invoke § 1326(d)’s exception, see Palomar-Santiago, 141 S. Ct. at 1620–21, he remains subject to § 1326(d)’s general rule that he “may not challenge the validity” of his predicate removal order. See 8 U.S.C. § 1326(d). The district court therefore properly denied Portillo-Gonzalez’s motion to dismiss the indictment. Its judgment is therefore affirmed.

8/28/23: Case on traveling in foreign commerce with the purpose of committing illicit sexual acts

In United States v. Pepe, --- F.4th ---, No. 22-5024 (9th Cir. 2023), the Court affirmed Michael Pepe’s jury conviction on two counts of violating 18 U.S.C. § 2423(b) by traveling in foreign commerce with the purpose of committing illicit sexual acts and two counts of violating 18 U.S.C. § 2241(c) by crossing a state line to sexually abuse a child under 12 and then so doing.

On appeal, Pepe contended that no rational finder of fact could have found beyond a reasonable doubt that he violated §§ 2423(b) and 2241(c).  The Court disagreed, concluding that a jury could rationally find that the sexual abuse of children was one of Pepe’s primary motivations for returning from the United States to Cambodia.

The Court also rejected Pepe's argument about the jury instructions.  

Here's the conclusion:  "Sexually abusing children was one of Pepe’s primary activities during his time in Cambodia. A jury convicted him of traveling in foreign commerce and crossing state lines with a motivating purpose of sexually abusing those children. And also for, in fact, sexually abusing them. The most Pepe shows in this appeal is that a jury could have rationally found that he did not commit these crimes. But that is not the standard. A rational jury could have found beyond a reasonable doubt that Pepe committed the charged crimes and the district court neither erred nor abused its discretion in instructing the jury."

8/25/23: Another supervised release sentencing decision

In United States v. Taylor, --- F.4th ---, No. 22-10203 (9th Cir. 2024), the Court  affirmed the special conditions of supervised release imposed by the district court in a case in which Arnold Ray Taylor argued that the district court (1) unconstitutionally delegated its judicial authority to Taylor’s probation officer to determine the duration of the substance abuse treatment required in Special Condition 2, and (2) erred because it imposed an above-Guidelines sentence and failed to specifically explain its reasons for doing so.

It held that the district court, which ordered a specific time range for Taylor’s inpatient substance treatment with a hard upper limit of one year, did not unconstitutionally delegate its judicial authority by ordering the probation officer to supervise Taylor’s progress in inpatient treatment, and allowing the probation officer the discretion to reduce—but not increase—the duration of his inpatient treatment in consultation with Taylor’s care provider.  It further held that the district court’s imposition of Special Condition 2 in addition to a high-end Guidelines sentence did not constitute an upward variance. 

8/24/23: Case on supervised release sentencing

In United States v. Estrada, --- F.4th ---, No. 23-50012 (9th Cir. 2023), the Court affirmed the district court’s judgment on the third revocation of Carlos Armando Estrada’s supervised release.

On appeal, Estrada argued that the district court lacked jurisdiction to revoke his supervised release because, at the time of his third violation, he was serving a term of supervised release that exceeded the applicable statutory maximum.

The Court rejected this argument, concluding: "Estrada was serving a term of supervised release when he committed the instant violation. This is sufficient to confer jurisdiction on the district court. Thus, regardless of any error in the sentence imposed on his second revocation—an issue we do not decide—the district court had jurisdiction over proceedings on the third revocation of Estrada’s supervised release."

"As we have indicated, we decline to reach Estrada’s argument that the term of supervised release imposed on his previous revocation of supervised release exceeded the statutory maximum. Consistent with Castro-Verdugo and our earlier precedent, we hold that an appeal challenging a supervised release revocation is not the 'proper avenue' through which to attack the validity of the underlying sentence."

8/15/23: two decisions today

 In United States v. Eckford, --- F.4th ---, No. 17-50167 (9th Cir. 2023), the Court affirmed Leon Eckford’s conviction and sentence.

It held that aiding and abetting Hobbs Act robbery is a crime of violence that properly served as a predicate for Eckford’s conviction and mandatory minimum sentence for the use of a firearm during a crime of violence under 18 U.S.C. § 924(c).

The Court concluded that its prior precedent on the issue was not clearly irreconcilable with, and thus not overruled by, United States v. Taylor, 142 S. Ct. 2015 (2022), which held that attempted Hobbs Act robbery is not a crime of violence.  

In United States v. Sadler, --- F.4th --- No. 21-30277 (9th Cir. 2023), the Court affirmed the sentence imposed on Jason Sadler following his guilty plea to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

"After pleading guilty to a single count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1), Defendant Jason Sadler argued at his sentencing that the district court should not consider certain prior convictions in determining his sentencing range under the U.S. Sentencing Guidelines. According to Sadler, subsequent case authority made clear that the guilty plea that produced those prior convictions was not knowing and voluntary, thereby rendering those convictions constitutionally invalid. We hold that the district court properly refused to entertain such a collateral challenge to a prior conviction in the context of this federal sentencing proceeding, and that those prior convictions were therefore properly considered in determining Sadler’s sentence. We therefore affirm Sadler’s sentence."

There is also a good footnote about mootness: 

The Government has suggested in a post-argument filing that Sadler’s challenge to his underlying sentence is moot. The Government notes that, earlier in 2023, Sadler’s supervised release was revoked twice, and in connection with the second such revocation Sadler is now serving a 140-day term of imprisonment to be followed by a new 24-month term of supervised release. As a result, the Government argues, Sadler “is no longer serving” the sentence “that is the subject of this appeal,” and any error in calculating his original sentence “would thus not affect the sentence he is now serving.” We conclude that the Government—which has cited no authority that would support this mootness argument—has failed to carry its burden to show that the case is moot. “[B]ecause district courts have broad discretion to modify conditions of supervised release” under 18 U.S.C. § 3583(e)(2), United States v. Bainbridge, 746 F.3d 943, 948 (9th Cir. 2014), there is a possibility that the district court could reduce or modify Sadler’s supervised release terms in light of a correction of the calculation of the sentencing range. This ‘“possibility of the court’s reducing or modifying [Sadler’s] supervised release’ satisfies the case or controversy requirement.” United States v. D.M., 869 F.3d 1133, 1137 (9th Cir. 2017) (citation omitted). Thus, Sadler’s appeal is not moot.

8/7/23: Case on restitution orders

In United States v. Dadyan, --- F.4th ---, No. 21-50237 (9th Cir. 2023), the Court affirmed the district court’s imposition of restitution obligations on Vahe Dadyan and Artur Ayvazyan following their convictions of various offenses stemming from a conspiracy to fraudulently obtain federal Covid-relief funds. 

The Court held that, under the Mandatory Victims Restitution Act (MVRA), the district court properly imposed restitution in the full amount of the loss caused by the conspiracy instead of just the loss caused by the fraudulent loan applications Vahe and Artur personally played a role in submitting.

The Court further held that the district court properly ordered a restitution amount under the MVRA based on the “value” of fraudulently obtained property, which exceeded the amount of “actual loss” the district court found when sentencing him under U.S.S.G. § 2B1.1(b)(1).

Finally, the Court held that precedent foreclosed Artur’s argument that his Fifth and Sixth Amendment rights to due process and a jury trial required that a jury, not a district judge, find all facts underpinning restitution beyond a reasonable doubt.

8/2/23: Case on abduction under U.S.S.G. § 2A3.1(b)(5)

In United States v. Scheu, --- F.4th ---, No. 22-10044 (9th Cir. 2023), the Court affirmed the defendant's sentence for aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 2241(c), 2246(2), & 1152, in a case in which the district court applied a four-level enhancement under U.S.S.G. § 2A3.1(b)(5) because “the victim was abducted.”

The Court held that the victim was “abducted” when the defendant forced her from the roadside into a nearby cornfield to perpetrate the sexual assault.  This was true under both the plain meaning of the word abducted and under the definition in the Guidelines commentary.  

8/1/23: public right to court access and racially motivated violence in violation of 18 U.S.C. § 249(a)(1).

In United States v. Hougen, --- F.4th ---, No. 21-10369 (9th Cir. 2023), a divided Court affirmed Ole Hougen’s conviction for attempting to commit racially motivated violence, in violation of 18 U.S.C. § 249(a)(1).

First, reviewing for plain error, the Court rejected Hougen's claim that the district court violated his right to a public trial based on restrictions to access due to the COVID-19 pandemic: "In sum, the balance of costs in this case counsels against reversal. In the absence of evidence of any harm to the fairness of Hougen’s trial flowing from the alleged public trial error and in light of the costs that would be imposed by reversal, we conclude that the drastic relief that Hougen seeks is unwarranted. For these and all of the foregoing reasons, we decline to reverse on this ground."

Second, the majority rejected Hougen's argument that § 249(a)(1), as applied to his case, exceeds Congress’ authority under the Thirteenth Amendment.  The majority held "that § 249(a)(1) is a constitutional exercise of Congress’ enforcement authority under Section Two of the Thirteenth Amendment."  In reaching this conclusion the majority determined that Congress rationally determined that violence (or attempted violence) perpetrated against victims on account of the victims’ race is a badge or incident of slavery is well established.

7/18/23: Export regulations case

In United States v. Shih, --- F.4th ---, No. 20-50144 (9th Cir. 2023), a case in which the government cross-appealed, the Court reversed the district court’s judgment of acquittal on one count, and affirmed Shih’s other convictions.  

The government charged Yi-Chi Shih with various offenses arising out of the export of monolithic microwave integrated circuits (MMICs) to the People’s Republic of China. 

In affirming the convictions, the Court discusses the export regulations in detail.  It also rejects a host of evidentiary challenges specific to this case. 

I'm including the Ninth Circuit's summary below:

In a case in which a jury returned a guilty verdict on all counts in an indictment charging Yi-Chi Shih with various offenses arising out of the export of monolithic microwave integrated circuits (MMICs) to the People’s Republic of China, the panel reversed the district court’s judgment of acquittal on one count, affirmed Shih’s other convictions, and remanded. 

The Export Administration Regulations (EARs), administered by the Department of Commerce’s Bureau of Industry and Security, impose controls on certain exports to “serve the national security, foreign policy, nonproliferation of weapons of mass destruction, and other interests of the United States.” After the expiration of the Export Administration Act of 1979, the EARs were continued pursuant to Executive Order 13,222, which declared a national emergency under the International Emergency Economic Powers Act (IEEPA). 

The panel rejected Shih’s argument that Executive Order 13,222 was an improper invocation of presidential authority. The panel also rejected Shih’s argument that IEEPA violates the nondelegation doctrine. 

The judgment of acquittal on Count 2 (exporting MMICs without first having obtained the required license) rested on the district court’s construction of the term “rated for operation” in Export Control Classification Numbers 3A001.b.2.b and 3A001.b.2.c. The panel held that the district court erred in concluding that this term requires postmanufacture, pre-export testing. The panel therefore ordered reinstatement of the jury verdict on that count. 

Shih argued that the district court erred by failing to give his proposed jury instruction on the fundamental research exemption. The panel rejected this argument because other instructions given in their entirety cover the defense theory. 

The panel found no error in the district court’s evidentiary rulings because they were well within the district court’s discretion and Shih was able to present the substance of his defense. The panel found no reversible error in the admission of expert testimony. The panel held that even assuming Shih’s objection was timely, he did not establish that statements by the prosecutor during rebuttal argument so infected the trial with unfairness as to make the conviction a denial of due process. The panel found any error in the wire and mail fraud instructions harmless.

Addressing sufficiency of the evidence, the panel held: (1) as to Counts 1 and 2, a rational factfinder could find that the exported MMICs were not exempt from the EARs as fundamental research; (2) as to Counts 3 through 8, a reasonable factfinder could find Shih’s misrepresentations material, and that the evidence supports a finding that Shih deprived a manufacturer of confidential information, a cognizable property interest under mail and wire fraud statutes; (3) the wire and mail fraud convictions were not based upon the invalidated right-to-control property theory; (4) as to computer fraud (Count 9), a rational factfinder could find unauthorized access to a web portal in furtherance of a specified crime; and (5) Shih’s attacks on Count 10 (money laundering) fail because the panel rejected his attacks on the underlying counts.

The district court rejected Shih’s contention that he was denied due process in connection with the district court’s determination—on the government’s ex parte, in camera motion—that none of certain allegedly classified material was discoverable.

7/6/23: Case on sentencing reductions under 18 U.S.C. § 3582(c)(1)(A)(i)

In United States v. Roper, --- F.4th ---, No. 22-30021 (9th Cir. 2023), the Court vacated the district court’s denial of Jerramey Lyndell Roper’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), and remanding for the district court to consider the motion anew. 

The Court held that district courts may consider non-retroactive changes in post-sentencing  law affecting the applicable Sentencing Guidelines when assessing whether a defendant has established the requisite “extraordinary and compelling reasons.”

This is true, the Court held, for both statutory and decisional changes.  In other words, regardless of whether the sentencing change resulted from a modification of the relevant statute or from a court decision, the district court can consider the change in assessing whether the defendant has established “extraordinary and compelling reasons.” 

6/26/23: Case on the categorical approach

In United States v. Castro, --- F.4th ---, No. 22-30050 (9th Cir. 2023), the Court vacated Benito Castro’s sentence and remanded for resentencing in a case in which Castro pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Benito Castro pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In calculating Castro’s recommended sentence, the district court increased his offense level based on a finding that Castro had previously committed a crime of violence. Castro contends that the crime in question, a Montana conviction for partner or family member assault (“PFMA”), Mont. Code Ann. § 45-5-206(1)(a), is not a crime of violence under the federal Sentencing Guidelines. We agree. 

Montana’s PFMA statute penalizes intentionally causing “bodily injury.” Id. While bodily injury may sound like it entails “force capable of causing physical pain or injury to another person,” Johnson v. United States, 559 U.S. 133, 140 (2010), in Montana that is not necessarily true. Under that state’s unusual definition, bodily injury “includes mental illness or impairment.” Mont. Code Ann. § 45-2-101(5). Montana courts have concluded that one can cause “bodily injury” solely through the infliction of mental anguish unaccompanied by any actual or threatened physical violence. Because we must determine whether PFMA categorically requires violent force—not whether Castro actually used it in his prior offense—we hold that PFMA is not a crime of violence under the Sentencing Guidelines. Therefore, we vacate Castro’s sentence and remand for resentencing. 

6/23/23: SCOTUS Case on 8 U. S. C. §1324(a)(1)(A)(iv)

As you probably know, SCOTUS has released numerous decisions this week.  I read but generally don't summarize them.  I'm making an exception for United States v. Hansen, 599 U.S. ___ (2023), because it specifically overrules Ninth Circuit precedent. 

You may recall that, in Hansen, the Ninth held that 8 U. S. C. §1324(a)(1)(A)(iv) -- which forbids “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such [activity] is or will be in violation of law -- was unconstitutional under the First Amendment. 

The Supreme Court reversed, holding: "Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts. It does not “prohibi[t] a substantial amount of protected speech”—let alone enough to justify throwing out the law’s 'plainly legitimate sweep.'"

The issue is whether Congress used 'encourage' and 'induce' as terms of art referring to criminal solicitation and facilitation (thus capturing only a narrow band of speech) or instead as those terms are used in everyday conversation (thus encompassing a broader swath).

We hold that clause (iv) uses “encourages or induces” in its specialized, criminal-law sense—that is, as incorporating common-law liability for solicitation and facilitation. In truth, the clash between definitions is not much of a contest. “Encourage” and “induce” have well-established legal meanings—and when Congress “borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word.” 

6/20/23: Case on collateral versus direct consequences of a guilty plea

In United States v. Hollins, --- F.4th ---, No. 21-10320 (9th Cir. 2023), the Court held that Hollins’ guilty plea was knowing and voluntary, and the appellate waiver included in his plea agreement was therefore in force.

Hollins contended that his plea was invalid because the court failed to inform him of three post-release “consequences” of his guilty plea: (1) the possibility of civil commitment under state or federal law, (2) geographic restrictions imposed against sex offenders by state law, and (3) community notification required under state law. 

The Court disagreed. 

"We reaffirm that Rule 11 requires a court to inform a defendant of the direct consequences of his guilty plea, but not those that are merely collateral. Padilla did not change this. We further hold that possible civil commitment,  geographic restrictions, and community notification were collateral consequences of Hollins’ guilty plea to a sex offense. Because the district court had no duty to inform Hollins of these specific consequences, his plea was knowing and voluntary. Thus, his appellate waiver is in force, and we therefore dismiss his appeal."

6/14/24: Case about U.S.S.G. § 2K2.1(a)(4)(B) (“semiautomatic firearm that is capable of accepting a large capacity magazine.”

In United States v. Lucas, --- F.4th ---, No. 22-50064 (9th Cir. 2023), the Court reversed the district court’s sentencing order, which imposed a heightened base offense level under U.S.S.G. § 2K2.1(a)(4)(B).  The Court held that the district court committed error in finding, by clear and convincing evidence, that the subject magazine could accept more than 15 rounds of ammunition at the time of the offense.

What is more interesting about the opinion are the issues discussed but not decided.  

First, the Court left open the possibility that Application Note 2 to U.S.S.G. § 2K2.1(a)(4)(B), which defines a “semiautomatic firearm that is capable of accepting a large capacity magazine,” is inconsistent with U.S.S.G. § 2K2.1(a)(4)(B) or that U.S.S.G. § 2K2.1(a)(4)(B) is unambiguous so as to defeat resort to Application Note 2.  

In a future case, we could see the Court hold that this application note does not control.

Second, the Court left open the possibility of reconsidering the Circuit law that where the use of a sentencing enhancement has an “extremely disproportionate impact on the sentence,” due process requires facts underlying such an enhancement be proven by clear and convincing evidence.  

The Court noted, "[t]his rule was crafted before the Supreme Court altered the sentencing landscape in United States v. Booker, 543 U.S. 220 (2005), and this court stands alone in continuing to apply such a rule after Booker."  

Who knows if the Court will take this issue en banc. 

6/13/23: Case on the constitutionality of U.S.S.G. § 2D1.1(b)(1) under Bruen

In United States v. Alaniz, --- F.3d ---, No. 22-30141 (9th Cir. 2023), the Court considered whether U.S.S.G. § 2D1.1(b)(1), which provides for an enhancement of the Guidelines calculation if a defendant possessed a dangerous weapon at the time of a felony drug offense, is constitutional under the Second Amendment following New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

The Court held it was.  First, the Court "assume[d], without deciding, that step one of the Bruen test is met."  Second, it found "§ 2D1.1(b)(1) constitutional under step two because it clearly comports with a history and tradition of regulating the possession of firearms during the commission of felonies involving a risk of violence." 

"The analogues show a longstanding tradition of enhancing a defendant’s sentence for the increased risk of violence created by mere possession of a firearm during the commission of certain crimes. Drug trafficking fits squarely within that category of crimes. Like burglary or robbery, drug trafficking plainly poses substantial risks of confrontation that can lead to immediate violence."  "Section 2D1.1(b)(1), therefore, imposes a 'comparable burden' to the historical analogues and is 'comparably justified.'”

The "historical record assures us that the two-level enhancement here is of a kind that the Founders would have tolerated.  We thus conclude that application of § 2D1.1(b)(1) to Alaniz’s sentence is constitutional."

6/8/23: Major SCOTUS 1028A (aggravated identity theft) decision

In Dubin v. United States, 599 U.S. --- (2023), the vacated the judgment of the Fifth Circuit and significantly narrowed the scope of 1028A. 

This is a must read for anyone practicing in federal court.  Here are some highlights:

Section 1028A(a)(1)’s title and terms both point to a narrower reading, one centered around the ordinary understanding of identity theft. This cuts against the Government’s broad reading, which the Government admits bears little relationship to the common understanding of identity theft. In contrast, a more targeted reading accurately captures the ordinary understanding of identity theft, where misuse of a means of identification is at the crux of the criminality. 

Start at the top, with the words Congress chose for §1028A’s title: “Aggravated identity theft.” 118 Stat. 831. This Court has long considered that “‘the title of a statute and the heading of a section’ are ‘tools available for the resolution of a doubt’ about the meaning of a statute.”

[U]se of the means of identification is at the crux of the underlying criminality. These definitions refer to offenses built around what the defendant does with the means of identification in particular. In other words, the means of identification specifically is a key mover in the criminality. This central role played by the means of identification, which serves to designate a specific person’s identity, explains why we say that the “identity” itself has been stolen. 

[I]dentity theft is committed when a defendant uses the means of identification itself to defraud or deceive. This tracks the Sixth Circuit’s heuristic. When a means of identification is used deceptively, this deception goes to “who” is involved, rather than just “how” or “when” services were provided. Use of the means of identification would therefore be at “the locus of [the criminal] undertaking,” rather than merely “passive,” “passing,” or ancillary employment in a crime.

Generally, to unlawfully “possess” something belonging to another person suggests it has been stolen. And to unlawfully “transfer” something belonging to another person similarly connotes misappropriating it and passing it along.

“Transfer” and “possess” not only connote theft, but identity theft in particular. The verbs point to (1) theft of a (2) means of identification belonging to (3) another person. That tracks ordinary understandings of identity theft: “a crime in which someone [1] steals [2] personal information about and [3] belonging to another.” Black’s 894. Similarly, “the [1] fraudulent appropriation and use of [3] another person’s [2] identifying data or documents.”

In sum, §1028A(a)(1)’s title and text are mutually reinforcing. Both point toward requiring the means of identification to be at the crux of the criminality.

A far more sensible conclusion from the statutory structure is that §1028A(a)(1)’s enhancement is not indiscriminate, but targets situations where the means of identification itself plays a key role—one that warrants a 2-year mandatory minimum. This points once more to a targeted reading, where the means of identification is at the crux of the underlying criminality, not an ancillary feature of billing. 

Finally, the Government makes a familiar plea: There is no reason to mistrust its sweeping reading, because prosecutors will act responsibly. To this, the Court gives a justas-familiar response: We “cannot construe a criminal statute on the assumption that the Government will ‘use it responsibly.’” “[T]o rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute’s highly abstract general statutory language places great power in the hands of the prosecutor.” 

Taken together, from text to context, from content to common sense, §1028A(a)(1) is not amenable to the Government’s attempt to push the statutory envelope. A defendant “uses” another person’s means of identification “in relation to” a predicate offense when this use is at the crux of what makes the conduct criminal. To be clear, being at the crux of the criminality requires more than a causal relationship, such as “‘facilitation’” of the offense or being a but-for cause of its “success.”  Instead, with fraud or deceit crimes like the one in this case, the means of identification specifically must be used in a manner that is fraudulent or deceptive. Such fraud or deceit going to identity can often be succinctly summarized as going to “who” is involved.

6/6/23: Case on parole searches

In United States v. Estrella, --- F.4th ---, No. 22-10027 (9th Cir. 2023), the Court affirmed the district court’s denial of Christian Alejandro Estrella’s motion to suppress evidence in a case in which Estrella entered a conditional guilty plea to being a felon in possession of a firearm and ammunition. 

The opinion's introduction provides a good summary.  Here it is: 

On August 14, 2019, Appellant Christian Alejandro Estrella (“Estrella”) was arrested as a felon in unlawful possession of a firearm after two officers discovered a handgun and ammunition concealed in his vehicle. At the time of this encounter, Estrella was a registered gang member on California state parole, and was subject to a suspicionless search condition that has been upheld by the Supreme Court. See Cal. Penal Code § 3067(b)(3); see also Samson v. California, 547 U.S. 843, 857 (2006). After entering a plea of guilty and preserving his right to appeal, Estrella appeals the district court’s denial of his motion to suppress evidence, arguing that the officers did not have advance knowledge that he was on parole at the time of this encounter. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 

It is firmly established that “[a] search of a parolee that complies with the terms of a valid search condition will usually be deemed reasonable under the Fourth Amendment.” United States v. Cervantes, 859 F.3d 1175, 1183 (9th Cir. 2017). As a threshold requirement, we have held that “an officer must know of a detainee’s parole status before that person can be detained and searched pursuant to a parole condition.” Moreno v. Baca, 431 F.3d 633, 641 (9th Cir. 2005). However, this Court has yet to specifically address how precise that knowledge must be. 

For the reasons articulated below, we now hold that a law enforcement officer must have probable cause to believe that a person is on active parole before he may be detained and searched pursuant to a parole condition. Although a law  enforcement officer must have “advance knowledge” that the detainee remains on active parole, United States v. Cesares, 533 F.3d 1064, 1076 (9th Cir. 2008), the officer need not “know to an absolute certainty,” with precise day by-day or minute-by-minute information of the detainee’s parole status, People v. Douglas, 193 Cal. Rptr. 3d 79, 89 (Cal. Ct. App. 2015). It is sufficient for the officer to determine, using the well-established rules governing probable cause, that the individual to be detained and searched is on active parole, and that an applicable parole condition authorizes the challenged search or seizure. 

Applying this standard, we conclude that the arresting officers had probable cause to believe that Estrella remained on active parole when he was detained and searched on August 14, 2019. We further hold that this encounter did not violate California’s independent prohibition on arbitrary, capricious, or harassing searches. Accordingly, we affirm the denial of Estrella’s motion to suppress. 

5/31/23: Important career offender decision

Today's case is complicated but a must read. If you have had a career offender finding based on a conspiracy conviction predicate, it is no longer a valid career offender predicate. 

In United States v. Castillo, --- F.4th ---, No. 21-50054 (9th Cir. 2023), the Court vacated Roberto Castillo’s sentence for conspiracy to distribute at least 50 grams of methamphetamine in violation of 21 U.S.C. §§ 846 and 841, and remanded for resentencing. 

Here are some highlights from the decision. 

Roberto Castillo pleaded guilty to the crime of conspiracy to distribute at least 50 grams of methamphetamine in violation of 21 U.S.C. §§ 846 and 841. The district court concluded that this offense of conviction qualified Castillo as a career offender under United States Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1, as it was a “controlled substance offense,” as defined by U.S.S.G. § 4B1.2(b). However, the text of U.S.S.G. § 4B1.2(b) does not actually include “conspiracy to distribute” in its list of controlled substance offenses. Rather, Application Note 1 states that “controlled substance offenses” include “offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” We have previously held that Application Note 1 permissibly expands on, and is consistent with, the text of U.S.S.G. § 4B1.2(b). We must decide whether Kisor v. Wilkie, 139 S. Ct. 2400 (2019), is intervening “clearly irreconcilable” authority that requires us to examine the plain text of the guideline, determine whether there is any ambiguity, and if there is not, to disregard the interpretive gloss set forth in the guideline’s commentary. Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003). In short, we must decide which side of a growing intercircuit split is correct on the question whether Application Note 1 improperly expands the definition of “controlled substance offense” in § 4B1.2(b). 

Because we conclude that we must apply the Supreme Court’s decision in Kisor, and that Application Note 1 improperly expands the definition of “controlled substance offense” in U.S.S.G. § 4B1.2(b), we vacate Castillo’s sentence and remand for resentencing consistent with this opinion.  

***

Castillo argues that the district court erred by concluding that his offense of conviction—conspiracy to distribute—is a “controlled substance offense” that qualifies him as a career offender under U.S.S.G. § 4B1.1. We agree. 

Castillo’s sentence was for a drug conspiracy. The Sentencing Guidelines’ definition of “controlled substance offense” for career offender enhancements currently does not include inchoate crimes like conspiracies, although the commentary extends the definition to such crimes. U.S.S.G. § 4B1.2(b), application note 1. Because only the commentary includes inchoate crimes, and the text of the guideline unambiguously does not, applying the Supreme Court’s Kisor analysis, we must conclude that Castillo’s conspiracy conviction does not qualify as a “controlled substance offense” under U.S.S.G. § 4B1.2(b).

***

Castillo’s argument tees up two questions: (1) is Kisor an intervening decision, and (2) is Kisor clearly irreconcilable with our prior decisions, such that we may reexamine our precedent as a three-judge panel? We answer both questions in the affirmative. Kisor is an intervening decision of a higher authority that is clearly irreconcilable with our holdings in Vea-Gonzales and Crum.

***

Surely, issues which are “neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”

Because no prior Ninth Circuit panel has considered the effect of Kisor on the Stinson deference we previously applied to the Guidelines’ commentary, we conclude that Kisor is an intervening decision of a higher authority.

***

Kisor’s reasoning is clearly irreconcilable with Vea-Gonzales and Crum. Applying the traditional tools of statutory construction to the text of the guideline, as Kisor instructs, we conclude that § 4B1.2(b) unambiguously identifies a list of crimes that does not include inchoate offenses. 

***

Because we find that § 4B1.2(b)’s definition of “controlled substance offense” is unambiguous, the Supreme Court’s decision in Kisor now makes it impermissible to defer to Application Note 1 to determine whether conspiracy fits into this definition.

Accordingly, we hold that our precedent in Crum and Vea-Gonzales applied an inappropriate level of deference to § 4B1.2(b)’s commentary, and consequently, these cases are irreconcilable with Kisor’s instructions regarding review of agency regulations and deference to an agency’s, including the Sentencing Commission’s, interpretive commentary. To the extent that Crum and Vea-Gonzales hold that an inchoate offense is a “controlled substance offense” for career enhancement purposes under the Sentencing Guidelines, we overrule them.

***

[T][he Sentencing Commission’s lack of accountability in its creation and amendment of the commentary raises constitutional concerns when we defer to commentary such as Application Note 1 that expands unambiguous Guidelines, particularly because of the extraordinary power the Commission has over individuals.

***

Because the text of § 4B1.2(b) unambiguously does not include inchoate offenses, and because we are no longer permitted to rely on the commentary of an unambiguous guideline after Kisor, we hold that Castillo’s conspiracy conviction is not a “controlled substance offense” under the career offender enhancement, § 4B1.1.9 Accordingly, the district court erred by relying on the PSR’s recommendation that Castillo qualifies as a career offender. We vacate Castillo’s sentence and remand for resentencing consistent with this opinion.