Beginning with the Guidelines case, in United States v. Gonzalez-Loera, --- F.4th ---, No. 24-1013 (9th Cir. 2025), the Court affirmed the district court’s denial of Gonzalez-Loera’s motion for a sentence reduction under the new zero-point offender provision of U.S.S.G. § 4C1.1.
Roberto Gonzalez-Loera appeals from the district court’s order denying his motion for a sentencing reduction under the new zero-point offender provision of the United States Sentencing Guidelines (“U.S.S.G.”) § 4C1.1. 1 Section 4C1.1 allows a court to adjust a defendant’s offense level downward if he “meets all of the [listed] criteria.” U.S.S.G. § 4C1.1(a). Here, we are concerned only with the criteria in § 4C1.1(a)(10) (“subsection (10)”): “[T]he defendant did not receive an adjustment under [U.S.S.G.] § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.” Id. § 4C1.1(a)(10).Because of subsection (10)’s plain and unambiguous text, we hold that it contains two distinct requirements, and a defendant must satisfy both to obtain relief. Thus, a defendant is ineligible for relief under § 4C1.1 if he either received an adjustment under § 3B1.1 or engaged in a continuing criminal enterprise. Because Gonzalez-Loera received an adjustment under § 3B1.1, he is ineligible for relief, and we affirm the district court’s denial of his motion to reduce his sentence.
Of note, "Effective November 1, 2024, the Commission amended § 4C1.1 by dividing the criteria in subsection (10) into two subsections. U.S.S.G. supp. app. C, amend. 831, at 287 (Nov. 2024) (striking paragraph (10) and inserting two new paragraphs: “(10) the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role); and (11) the defendant was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848”). The Commission explained that the purpose of the amendment was “[t]o clarify the Commission’s intention that a defendant is ineligible for the adjustment if the defendant meets either of the disqualifying conditions.” Id. at 288. The Commission’s clarifying amendment makes clear that subsection (10) sets forth two separate requirements."
Next, in United States v. Pangang Group Company, Ltd., --- F.4th ---, No. 22-10058 (9th Cir. 2025), the Court affirmed the district court’s denial of a motion to dismiss an indictment charging four affiliated companies (“the Pangang Companies”) with economic espionage in connection with their alleged efforts to steal from DuPont trade secrets relating to the production of titanium dioxide.
This is a lengthy opinion. And if you have a case involving a foreign government owned company, the decision is a must read. But for purposes of this summary, here are the key points:
Section 66(g) of the Restatement extends “[t]he immunity of a foreign state” to “a corporation created under its laws and exercising functions comparable to those of an agency of the state.” RESTATEMENT, supra, § 66(g). “The term ‘agency’ as used in this Section means a body having the nature of a government department or ministry.” RESTATEMENT, supra, § 66 cmt. a.We hold that the Pangang Companies have not made a prima facie showing that they exercise functions comparable to those of an agency of the PRC. They therefore are not the kinds of entities eligible for foreign sovereign immunity from criminal prosecution.Neither the allegations in the indictment nor anything else in the record establishes a prima facie claim that the Pangang Companies exercise functions comparable to those of an agency of the PRC.Because the record does not suggest that the Pangang Companies are anything more than conventional corporate entities engaged in commercial activities, the Pangang Companies fail to establish a prima facie case that they are entities “exercising functions comparable to those of an agency of the state.”
