10/27/25: Case on 18 U.S.C. § 922(g)(8)(C)(ii)

In United States v. Vandyke, --- F.4th ---, No. 24-2861 (9th Cir. 2025), on the government’s appeal, the Court reversed the district court’s order dismissing an indictment charging Ryan VanDyke with illegal firearm possession in violation of 18 U.S.C. § 922(g)(8)(C)(ii), and remanded for further proceedings.

Section 922(g)(8)(C)(ii) prohibits firearm possession by an individual subject to a court order that “by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury.”

VanDyke argued that application of the federal statute to him violated the Second Amendment.  The district court agreed.  The Ninth reversed. 

In light of intervening precedent in United States v. Rahimi, 602 U.S. 680 (2024), we reverse. As the Court wrote in Rahimi, “[s]ince the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.” Id. at 690. The Court emphasized that a historical analogue suffices; a “historical twin” is not required. Id. at 692 (quoting New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 30 (2022)). We also have a long historical tradition concerning “categories of persons thought by a legislature to present a special danger of misuse.” Id. at 698; see also United States v. Duarte, 137 F.4th 743, 756–61 (9th Cir. 2025) (en banc). Such categories include criminals facing serious pending charges on pretrial release. See United States v. Perez-Garcia, 96 F.4th 1166, 1182–84 (9th Cir. 2024), cert. denied, 145 S. Ct. 2707 (2025). VanDyke fits this description to a tee. We conclude that Section 922(g)(8)(C)(ii) is constitutional as applied to VanDyke. 

Section (C)(ii)’s “why” and “how” are analogous to two historical traditions of firearm regulation. The first tradition is individual disarmament based on a judicial determination of dangerousness, as embodied by the surety and goingarmed laws relied upon in Rahimi. 602 U.S. at 695–700. The second tradition is categorical disarmament, as manifested in laws forbidding firearm possession by whole groups of people whom “the legislature deemed dangerous.”

We conclude that the justification for the entry of the no-contact order against VanDyke—and thus this application of Section 922(g)(8)(C)(ii)—was the state court’s implicit determination that he posed a threat to the physical safety of his victim and other protected persons. This is not just analogous, but virtually identical, to the justification that the Court upheld in Rahimi. Like our sister circuits, given such a strongly implied dangerousness finding by the state court, we see no need to require further documentation. See Boyd, 999 F.3d at 187; Gordon, 137 F.4th at 1157. VanDyke’s argument ignores the terms of Section (C)(ii) and the structure of Idaho law. Cf. United States v. Reese, 627 F.3d 792, 802–04 (10th Cir. 2010), abrogated on other grounds by Bruen, 597 U.S. 1 (concluding, for similar reasons, that “no [explicit credible-threat] findings were necessary” to establish that Section (C)(ii) was intended to keep firearms out of the hands of those who pose a heightened danger of misuse towards an intimate partner or child).  

In addition to the tradition of individualized disarmament, America’s history of firearm regulation also includes “longstanding prohibitions” on firearm possession by certain categories of people. District of Columbia v. Heller, 554 U.S. 570, 626 (2008). Categorical disarmament is based on legislatively presumed danger, rather than an individualized assessment of risk. Duarte, 137 F.4th at 759 (“The historical record reveals a host of regulations that disarmed those whom the legislature deemed dangerous on a categorical basis.”). 

VanDyke falls within at least one category of people who were historically disarmed on a categorical basis: criminal defendants facing serious charges pending trial, including those eligible for pretrial release.

Section 922(g)(8)(C)(ii) is constitutional as applied to VanDyke under the historical traditions of individual disarmament and categorical disarmament. We reverse the district court’s dismissal of the indictment. 

10/20/25: Considering information from a psychological evaluation during sentencing

In United States v. Davis, --- F.4th ---. No. 24-1099 (9th Cir. 2025), the Court affirmed Davis's sentence for making a false statement during a firearms transaction, making a false statement in an application for a passport, and aggravated identity theft.

After pleading guilty to various crimes, Alexandre Zdenek Davis asked the district court to order a psychological evaluation under 18 U.S.C. § 4241 to determine his mental competency before sentencing. He also requested that his evaluation be filed with the court, as required under the statute. But when unfavorable information from the evaluation ended up in his presentencing report, Davis apparently had a change of heart and objected to the court considering that information at sentencing.

On appeal, Davis contends that the district court’s use of his psychological evaluation violated his Fifth Amendment right against self-incrimination. But the Supreme Court case that Davis invokes to support his claim, Estelle v. Smith, 451 U.S. 454 (1981), does not extend the right against self-incrimination so far. We thus hold that the district court did not err by considering Davis’ voluntary psychological evaluation during sentencing. Davis also challenges two other aspects of his sentence, but those claims are barred by the waiver of appeal in his plea agreement.  We affirm the sentence.

Before reaching the merits of Davis’ Fifth Amendment claim, we must determine whether he waived his right to appeal it. Under his plea agreement, Davis may not appeal “any aspect of the sentence, including conditions of probation or supervised release.” 

When a defendant knowingly and voluntarily waives his right to appeal his sentence, this court generally will not review the merits of an appeal. Wells, 29 F.4th at 583–84. But under the Bibler exception, we will hear an appeal despite a waiver when a sentence is “illegal.” United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). “A sentence is illegal if it . . . violates the Constitution.” Id. (citation omitted). Specifically, a defendant may escape an appeal waiver under the Bibler exception “if (1) the defendant raises a challenge that the sentence violates the Constitution; (2) the constitutional claim directly challenges the sentence itself; and (3) the constitutional challenge is not based on any underlying constitutional right that was expressly and specifically waived . . . .” Wells, 29 F.4th at 587. 

Even if the Bibler exception to an appellate waiver applies here, Davis’ Fifth Amendment claim ultimately fails on the merits.

Davis argues that by considering his psychological evaluation at sentencing, the district court forced him to incriminate himself in violation of the Fifth Amendment. Davis did not receive a Miranda warning before his evaluation, although he consented to the evaluation after the examiner reminded him that the results would be provided to the court. Because Davis did not object to the use of the evaluation on Fifth Amendment grounds during sentencing, we review his claim for plain error. See Wells, 29 F.4th at 592. We conclude that the district court did not err by considering Davis’ evaluation.

[W]e find that the Court’s holding in Estelle does not extend beyond the “distinct circumstances” of that case to Davis’ psychological evaluation here. See 451 U.S. at 466. The Estelle court made clear that its decision did not necessarily apply to “all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination,” id. at 469 n.13, and we hold that Estelle does not apply to the examination in this case. The district court did not violate Davis’ right against self-incrimination by considering the results of his voluntary examination when determining his sentence.

10/10/25: Case on facilitation and plain error

In United States v. Tainewasher, --- F.4th ---, No. 243634 (9th Cir. 2025), a divided panel affirmed Samantha Marie Tainewasher’s conviction for illegal use of a communication facility in the commission of a drug felony in violation of 21 U.S.C. § 843(b).

Tainewasher first contend[ed] that the district court plainly erred by failing to instruct the jury that, to convict her of facilitation, it must find that the underlying drug felony was actually committed.  Assuming the district court’s instruction was obvious error by not requiring that finding, we conclude it did not “affect [Tainewasher’s] substantial rights, meaning . . . there was [no] reasonable probability that it affected the outcome of the district court proceedings.” United States v. Conti, 804 F.3d 977, 981 (9th Cir. 2015) (internal quotation marks and citation omitted). Tainewasher’s Facebook messages clearly indicate that a drug felony was committed, and the defense did not dispute the underlying evidence nor ask the jury to acquit her of the communication-facility charge at trial.

Tainewasher also argues that the district court plainly erred by failing to give the jury a specific unanimity instruction regarding the drug felony she allegedly facilitated. “[A] specific unanimity instruction is required if there is a genuine possibility of jury confusion or a possibility that a conviction may occur as the result of different jurors concluding that the defendant committed different acts.” United States v. Lapier, 796 F.3d 1090, 1096 (9th Cir. 2015) (citation and internal quotation marks omitted). Courts look at the text of the indictment, the clarity of the government’s argument, the complexity of the evidence, and the intelligibility of the jury instructions to assess the “risk that different jurors voted to convict on the basis of different facts establishing different offenses.” Id. at 1097. Given the simplicity of the evidence, argument, and instructions related to the communication-facility charge in this case, Tainewasher fails to show that any error affected her substantial rights.

Judge Graber dissented:

In order to prove that Defendant was guilty of violating 21 U.S.C. § 843(b), which criminalizes the use of a “communication facility in committing or in causing or facilitating the commission” of a drug felony, the government must prove that an underlying drug offense occurred. The jury’s instructions here did not require that finding, instead allowing the jury to convict Defendant even if no drug offense occurred. The opinion nevertheless affirms on the ground that Defendant failed to show a reasonable likelihood of a different outcome. I strongly disagree with that conclusion. The government submitted nothing more than a few informal, jargon-filled Facebook chat messages: no drug evidence, no witness testimony, no tracking information—nothing other than the messages quoted in the opinion. In light of that incredibly flimsy evidence, a properly instructed jury almost certainly would harbor a reasonable doubt as to whether a completed drug offense in fact occurred. 

Additionally, the opinion has chosen merely to assume the first two prongs of the plain-error test. By doing so, the opinion fails to clarify and correct Ninth Circuit law on important legal issues that arise often. Parties in future cases, the district courts, and we deserve precedential guidance. Either in this case or in a future appropriate case, we should convene en banc in order to provide that guidance. 

If a controlling precedent by the Supreme Court or by us is on point, then the error is plain. United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2006) (en banc). But— contrary to the government’s argument here—we do not stop our analysis if no binding precedent is on point. Instead, we look to other considerations to determine whether the issue is “subject to reasonable dispute.” Puckett, 556 U.S. at 135. “We must consider whether the available authorities provide a clear answer to the question before us.”

In short, in assessing whether an error is “plain,” we must consider the views of other circuits even if no binding precedent is on point. Our objective is to determine whether the issue at hand is “subject to reasonable dispute,” Puckett, 556 U.S. at 135, not to determine simply whether the issue is controlled by binding precedent. And, as the cases above illustrate, how other circuits have decided the issue can inform our analysis as to the existence—or not—of a reasonable dispute.

In some cases, including United States v. Turman, 122 F.3d 1167 (9th Cir. 1997), we described plain error as “error that is so clear-cut, so obvious, a competent district judge should be able to avoid it without benefit of objection.” Id. at 1170. In Henderson, 568 U.S. at 279, the Supreme Court expressly rejected that formulation. Questioning whether the district judge should have caught the error asks the question at the wrong time—at the time of the error rather than at the time of appeal. Id. Moreover, as the Court explained, the purpose of Rule 52(b) of the Federal Rules of Criminal Procedure has nothing to do with measuring the competency of district judges: “[P]lain-error review is not a grading system for trial judges. It has broader purposes, including in part allowing courts of appeals better to identify those instances in which the application of a new rule of law to cases on appeal will meet the demands of fairness and judicial integrity.” Id. at 278. Rule 52(b) seeks a fair and just result, striking a balance between, on the one hand, the ordinary judicial-efficiency principle that arguments not raised initially may not be raised on appeal and, on the other hand, the liberty interests of a criminal defendant.

Our old formulation of the test, as well as its variants, is thus doubly wrong: asking a question about the wrong time (at the time of trial rather than at the time of appeal) and about the wrong subject matter (the district judge’s perspicacity rather than the obviousness of the error). Regrettably, some of our cases have continued to use such formulations even after Henderson. E.g., United States v. Hackett, 123 F.4th 1005, 1011–12 (9th Cir. 2024); United States v. Rusnak, 981 F.3d 697, 705 (9th Cir. 2020); United States v. Bain, 925 F.3d 1172, 1178 (9th Cir. 2019). The en banc court should overrule our continued application of the antiquated formulation that the Supreme Court expressly rejected. The proper inquiry is simply whether, at the time of appeal, an error is “clear” or instead is “subject to reasonable dispute.” Puckett, 556 U.S. at 135.