4/7/26: Jet ski case

In United States v. Verhonich, --- F.4th ---, No. 25-1407 (9th Cir. 2026), the Court affirmed the district court’s order upholding Verhonich’s misdemeanor conviction and sentence for violating National Park Service Boating and Water Use Activities regulations in connection with a jet ski accident where Verhonich was the driver and a passenger drowned.

Verhonich contends that evidence related to his failure to wear a life jacket or attach the engine cut-off lanyard to his wrist or body is irrelevant to his guilt or innocence on Count One because the plain meaning of “[o]perating a vessel,” as used in 36 C.F.R. § 3.8(b)(8), “concerns only Mr. Verhonich’s piloting of the jet ski, not external factors like safety gear.”

We are not persuaded that the act of maintaining the functioning of, or engaging, using, and controlling, a jet ski, plainly excludes external factors that impact the nature of the maintenance or use, such as safety gear. In particular, removing the safety lanyard entirely halts the operation of the vessel and therefore is encompassed by “operate,” even under Verhonich’s narrow definition to mean only piloting the jet ski itself.

Accordingly, we hold that the failure to wear a life jacket and the failure to attach a safety lanyard may both be considered in determining whether a vessel has been operated negligently pursuant to 36 C.F.R. § 3.8(b)(8). 

3/25/26: Important SCOTUS decision on Supervised Release

Today, in Rico v. United States, 607 U.S. ---, No. 24-1056 (2026), the Supreme Court overruled the Ninth Circuit's rule that a supervisee's abscondment automatically extends a term of supervised release. 

Today, most criminal defendants sentenced to federal prison must also serve a term of supervised release. If a defendant on supervised release fails to report to his probation officer, serious consequences can follow. This case poses a question about one of them.

Without question, Ms. Rico’s supervised release term was set to expire in June 2021 by court order. But, the Ninth Circuit reasoned, Ms. Rico’s abscondment “tolled” the clock so that her term continued to run until federal authorities caught up with her in 2023. Id., at 3a. As a result, her January 2022 drug offense occurred while she was on supervised release. And because of that, the district court could treat that offense as a violation and revoke her supervised release based upon it.

We agreed to review this case to resolve a circuit split. 606 U. S. 930 (2025). Some circuits, like the Ninth, hold that a defendant’s failure to report doesn’t just amount to a punishable supervised release violation but also automatically extends his term of supervised release. Others disagree, taking Ms. Rico’s view that abscondment does not automatically extend a term of supervised release.

In approaching this dispute, a preliminary note on terminology is warranted. The Ninth Circuit held that a defendant who absconds during supervised release “tolls” his existing, judicially ordered term of supervised release until federal authorities find him. This is a misnomer. In legal settings, the word “toll” often denotes some stop or pause. See Artis v. District of Columbia, 583 U. S. 71, 80–82 (2018). But under the Ninth Circuit’s approach, a defendant who absconds stops or pauses nothing. Rather, he remains subject to the conditions of his supervised release and can be held accountable for any violations he commits during his abscondment. What the Ninth Circuit’s rule really does is extend the period of supervised release beyond what a judge has ordered. On its view, an absconding defendant’s term of supervised release does not expire when a court has directed but continues to run so long as the defendant remains out of contact with his probation officer.

Whatever the wisdom of a policy like that, we see nothing in the law authorizing it. The Sentencing Reform Act provides courts with many tools to address defendants who fail to report or otherwise violate their supervised release conditions. But automatically extending a term of supervised release is not among them. An array of textual clues proves the point.

Look at it this way. When a prisoner escapes, he is in no sense serving his prison sentence. In contrast, when a defendant on supervised release fails to report, everyone agrees he remains bound by the terms of his release. That is why, for failing to report and any other violation he may commit during his judicially ordered term of supervised release, a court may send a defendant to prison and authorize more supervised release yet. §3583(e)(3). The court can do all that, too, even after the defendant’s prescribed term of supervised release expires, so long as a warrant or summons issues beforehand. §3583(i). The Act thus already provides courts with many ways to ensure a defendant does not profit from a supervised release violation. But what the Act does not do is automatically extend the defendant’s period of supervised release beyond what a judge has ordered. And that additional rule is hardly necessary to ensure that a defendant should take “no manner of advantage” from his abscondment. 

Because the Sentencing Reform Act does not authorize the rule the Court of Appeals adopted and the government advances, the judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. 

3/25/26: Two decisions - correcting error under Rule 35(a) and a categorical approach case.

First, in United States v. Depape, --- F.4th ---, No. 24-3458 (9th Cir. 2026), the Court affirmed David Wayne DePape’s sentence, holding that where the sentencing court violates Fed. R. Crim. P. 32, by not affording a defendant the right to allocute, it can correct the error as an “arithmetical, technical, or other clear error” under Fed. R. Crim. P. 35(a), by reopening the sentencing proceeding, allowing the defendant to allocute, and then reimposing a sentence.

A criminal defendant has a right to personally address the sentencing court before any sentence is imposed. Fed. R. Crim. P. 32(i)(4)(A)(ii). But what happens when a sentencing court violates Rule 32 by not affording a defendant the right to allocute? Can the sentencing court correct the error as an “arithmetical, technical, or other clear error” under Federal Rule of Criminal Procedure 35(a)? Under the plain text of Rule 35(a), the answer is yes. 

DePape [] argues that Rule 35(a) is inappropriate here because resentencing after a belated allocution requires the reexercise of the sentencing court’s discretion. According to DePape, any error requiring the use of sentencing discretion falls out of Rule 35(a)’s scope. But that’s wrong. While it’s true that correcting a Rule 32(i)(4)(A)(ii) violation may result in reconsideration of the sentencing factors, nothing in Rule 35(a)’s text limits its scope in this way. Indeed, an “arithmetical error” involving the Guidelines calculations—which unquestionably falls within Rule 35(a)’s purview—often requires reapplication of the discretionary 18 U.S.C. § 3553(a) factors. And we’ve already held that a district court commits a “clear error of a technical kind” when it sentences a defendant based on a mandatory-minimum sentence when it thought safety-valve relief applied, and that the district court would have “had the latitude under Rule 35 to correct its perceived technical error” by re-sentencing under the discretionary § 3553 factors afresh.

Next, in United States v. Chavez-Echeverria, --- F.4th ---, No. 24-4723 (9th Cir. 2026), the Court affirmed Jessie Chavez-Echeverria’s sentence, holding that the district court properly increased his base offense level pursuant to U.S.S.G. § 2K2.1(a)(1) on the ground that his prior sentence for attempted first-degree assault under Or. Rev. Stat. §§ 163.185(1)(a), 161.405 qualifies as a crime of violence.

The only issue in this sentencing appeal is whether the district court erred when it increased Jessie Chavez-Echeverria’s base offense level because it concluded that his prior Oregon conviction for attempted first-degree assault qualifies as a crime of violence. Pursuant to the Sentencing Guidelines, crimes of violence include offenses that have as an element the “attempted use” of physical force against the person of another. Under our precedent, “attempted use” of physical force means a substantial step toward the use of physical force. United States v. Linehan, 56 F.4th 693, 702 (9th Cir. 2022). Because an Oregon conviction for attempted first-degree assault requires a defendant to take a substantial step toward causing serious physical injury to another, we affirm the sentence imposed by the district court.

Resisting this conclusion, Chavez-Echeverria contends that attempted first-degree assault under Oregon law does not necessarily entail the “attempted use” of physical force because Oregon’s construction of “substantial step” is broader than the federal definition. More specifically, he argues that by citing Ninth Circuit caselaw, Linehan imported into the force clause analysis the so-called “probable desistance” test that we have applied to substantive criminal offenses. We disagree.  

The “probable desistance” test provides that “a suspect crosses the line separating preparation from attempt when his actions ‘unequivocally demonstrat[e] that the crime will take place unless interrupted by independent circumstances.’”  We integrated the common-law probable desistance test into our substantial step inquiry for substantive criminal offenses in United States v. Buffington, 815 F.2d 1292, 1302 (9th Cir. 1987).  Thus, when analyzing whether a defendant has attempted a substantive criminal offense, we have held that a defendant’s actions “constitute a substantial step” if they “unequivocally demonstrat[e] that the crime will take place unless interrupted by independent circumstances.” 

However, the Model Penal Code formulation of attempt liability, which Oregon has codified, see § 161.405(1), does not include a “probable desistance” test.

Linehan adopted the established meaning of “attempt”— requiring a “substantial step”—without importing the probable desistance test that we have applied to substantive criminal offenses. See 56 F.4th at 702–03. Because attempted first-degree assault under Oregon law requires that a defendant take a substantial step toward causing serious physical injury, it qualifies as a crime of violence under the force clause. The district court did not err by increasing Chavez-Echeverria’s base offense level pursuant to § 2K2.1(a)(1). 

3/23/26: Case on U.S.S.G. § 2K2.1(b)(5)

n United States v. Ferrari, --- F.4th ---, No. 24-6007 (9th Cir. 2026), the Court affirmed the district court’s application of a sentencing enhancement for engaging in firearms trafficking in a case in which Christian Ferrari pleaded guilty to four counts of willfully dealing firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A).

Pursuant to § 2K2.1(b)(5) of the 2021 United States Sentencing Guidelines, a sentencing enhancement applies “[i]f the defendant engaged in the trafficking of firearms.” U.S.S.G. § 2K2.1(b)(5) (2021). Application Note 13 states that “Subsection (b)(5) applies . . . if the defendant . . . knew or had reason to believe that” the defendant disposed “of a firearm to an individual (I) whose possession or receipt of the firearm would be unlawful; or (II) who intended to use or dispose of the firearm unlawfully.”1 U.S.S.G. § 2K2.1, cmt. n.13(A) (2021). The question presented is whether Application Note 13 requires that the person to whom the defendant transferred the firearm in fact was an unlawful possessor or intended to use the firearm unlawfully. We hold that it does not. Accordingly, we affirm.

Ferrari appeals the district court’s application of the firearms trafficking enhancement. On appeal . . . . Ferrari argues that in order to apply the firearms trafficking enhancement, it must also be true that the undercover agents were unlawful possessors or intended to use the firearms unlawfully. Ferrari’s argument largely relies on out of circuit cases interpreting similar language in two federal criminal firearms statutes.

The government responds with two arguments. First, the government contends that Ferrari did not preserve his argument for appeal, and thus plain error review applies. Second, the government argues that Application Note 13 requires only that the defendant “had reason to believe” the transferee was an unlawful possessor or intended to use the firearm unlawfully and does not require it to be true that the transferee was an unlawful possessor or intended to use the firearm unlawfully. We address both arguments in turn.

[As to waiver,] [t]he government’s argument conflicts with United States v. Hong, 938 F.3d 1040 (9th Cir. 2019). Hong held that a defendant’s arguments challenging the applicability of a sentencing enhancement may “shift[] on appeal” as long as the “basic claim remains the same”: the sentencing enhancement does not apply.

This case is like Hong, and the government makes no attempt to distinguish it. On appeal Ferrari presses the same basic claim that he raised below: “the [firearms trafficking] enhancement does not apply to him because his case does not fit the terms of Application Note 13.”

Because Ferrari preserved his claim challenging the applicability of the firearms trafficking enhancement, we review de novo Ferrari’s argument that the district court misinterpreted Application Note 13. 

Next, the Court held that "[a]pplication Note 13’s text does not require it to be true that the transferee was an unlawful possessor or intended to use the firearm unlawfully."

Nothing else in Application Note 13 requires that what the defendant “had reason to believe” must also be true. Ferrari does not identify a subsection that requires the transferee to in fact be an unlawful possessor, or to actually intend to use the firearm unlawfully. Subsection (ii) of Application Note 13(A) only requires that the defendant “had reason to believe” as much. Nor does Ferrari point to any specific language in the text that would require it to be true.

Because there is no reason to depart from the plain text, we hold that Application Note 13 to § 2K2.1(b)(5) of the 2021 United States Sentencing Guidelines does not require that what the defendant had reason to believe was true. On appeal, Ferrari does not dispute that he had reason to believe the undercover agents were unlawful possessors or intended to use the firearms unlawfully.  

3/18/26: Second Amendment case on 922(g)(9)

In United States v. Martinez, --- F.4th ---, Nos. 23-432, 23-2417, 23-3426 (9th Cir. 2026), the Court affirmed three appellants’ convictions under 18 U.S.C. § 922(g)(9), which prohibits a person convicted of a misdemeanor domestic violence offense from possessing a firearm or ammunition.

"Appellants’ facial challenge to § 922(g)(9) [] fails. We conclude that § 922(g)(9) may be constitutionally applied to individuals who have been previously convicted of misdemeanors based on them having used criminal force against their domestic partners."

"We similarly hold here that § 922(g)(9) categorically disarms individuals convicted of a misdemeanor crime of domestic violence. Like § 922(g)(1), § 922(g)(9) reflects Congress’s determination that members of a class of convicted criminals are dangerous. Therefore, we hold that we need not engage in a misdemeanor-by-misdemeanor inquiry under § 922(g)(9). We are not alone in so holding. As we do here, the Second Circuit rejected a defendant’s as-applied challenge to § 922(g)(9) based on Congress’s power to disarm groups of people without distinguishing between the nature of the offense underlying particular convictions."

3/16/26: Case on U.S.S.G. § 2L1.2(b)(3)

In United States v. Torres-Gonzalez, --- F.4th ---, No. 25-2897 (9th Cir. 2026), the Court affirmed the sentence imposed on Cruz Torres-Gonzalez for his 2024 conviction for illegal reentry into the United States in violation of 8 U.S.C. § 1326.

In 2014, Cruz Torres-Gonzalez was convicted of illegal reentry into the United States in violation of 8 U.S.C. § 1326 and of making false statements to the federal officers who arrested him in violation of 18 U.S.C. § 1001. He was sentenced to 35 months on each count in the same proceeding. The sentences ran concurrently. 

n 2024, Torres-Gonzalez was convicted once again of illegal reentry. At his sentencing, the district court applied two offense-level enhancements pursuant to § 2L1.2 of the Sentencing Guidelines. U.S. Sent’g Guidelines Manual § 2L1.2 (U.S. Sent’g Comm’n 2024) (U.S.S.G.). At issue in this appeal is the enhancement directed by U.S.S.G. § 2L1.2(b)(3), which provides a specific offense-level enhancement based upon the length of the sentence imposed for Torres-Gonzalez’s prior non-reentry conviction that occurred after he was first ordered removed from the United States.

Torres-Gonzalez argues that the district court erred by applying an eight-level enhancement based on his prior false-statement conviction. He does not dispute that an eight-level enhancement is triggered by a sentence of two years or more for prior non-reentry convictions, U.S.S.G. § 2L1.2(b)(3)(B), but he argues that the length of the sentence for his false-statement offense was actually determined by the sentence he received for his 2014 reentry conviction. We conclude that the district court properly interpreted the Sentencing Guidelines when it determined the enhancements applicable at Torres-Gonzalez’s 2024 sentencing. Accordingly, we affirm the sentence imposed by the district court.

It is undisputed that the sentence Torres-Gonzalez received for the false-statement offense in 2014 was due to the operation of the Guidelines’ “grouping” rules. Where a defendant has been convicted of multiple counts, U.S.S.G. § 3D1.1, the Guidelines direct that counts that are “closely related” because they “involv[e] substantially the same harm” should be “grouped.” U.S.S.G. § 3D1.2. Generally, the count with the highest offense level is the offense level for the group, U.S.S.G. § 3D1.3(a), and the offense level applicable to the grouped offenses is used to determine the appropriate sentence. U.S.S.G. § 3D1.5. The “total punishment” applies concurrently to each count in a group. 

On appeal, Torres-Gonzalez again argues that imposition of the eight-level enhancement was erroneous. He reasons that the 35-month sentence he received in 2014 for making a false statement was determined by his § 1326 felony illegal reentry conviction because the charges were grouped and the § 1326 charge carried the highest offense level. He characterizes § 1326 as “the type of offense excepted from” the U.S.S.G. § 2L1.2(b)(3) enhancement provision because the Guidelines specify a four-level enhancement for prior § 1326 convictions and a sliding-scale enhancement in subsection (b)(3) only for other felony convictions entered after an initial § 1326 conviction. Thus, according to Torres-Gonzalez, the 35-month sentence he received for making a false statement was actually predicated upon the § 1326 conviction, and that offense should not be used to determine the appropriate enhancement added pursuant to U.S.S.G. § 2L1.2(b)(3). Torres-Gonzalez urges us to direct the district court to apply the residual four-level enhancement, U.S.S.G. § 2L1.2(b)(3)(D), on remand because that enhancement is not determined by the length of a prior sentence.  

As the district court recognized, the sentence for Torres-Gonzalez’s non-reentry offense was likely higher than it would have been if he had been sentenced solely for making a false statement to a federal officer because the 2014 sentencing court was persuaded that a 35-month sentence was needed to deter him from continuing to enter the country illegally. Nevertheless, Torres-Gonzalez received a 35- month sentence for the false-statement conviction, and the district court faithfully applied the eight-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(3)(B). Contrary to Torres-Gonzalez’s suggestion, his sentence for the false-statement conviction was not “replaced” by the sentence for the reentry offense; rather, the charges were grouped consistent with the Guidelines. We discern no error in the district court’s reading of the Guidelines’ text.

3/9/26: Case on U.S.S.G. § 2D1.1(b)(12) - maintaining a premises for the purpose of manufacturing or distributing a controlled substance

In United States v. Tekola, --- F.4th ---, No. 24-5467 (9th Cir. 2026), the Court affirmed Isaac Tekola’s sentence for possession with intent to distribute fentanyl, methamphetamine, and Alprazolam in a case in which the district court imposed an enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for the purpose of manufacturing or distributing a controlled substance.

Tekola challenges the district court’s finding that he maintained his apartment “for the purpose of manufacturing or distributing” drugs, suggesting that because the apartment was his primary residence, drug trafficking was not a “primary or principal” use of the apartment. We reject this argument, which runs counter to the purpose of § 2D1.1(b)(12), and hold that the district court acted squarely within its discretion in applying the enhancement.

[C]ourts have repeatedly upheld sentencing enhancements under § 2D1.1(b)(12) where defendants regularly used the premises both as a primary residence and for substantial drug trafficking activities.

In light of this guidance from the enhancement’s history and purpose, the commentary, and decisions from previous courts, the district court acted well within its discretion in applying the § 2D1.1(b)(12) enhancement. The government pointed to a litany of drug transactions made at Tekola’s apartment. A search of the apartment turned up nearly $13,000 in cash; various drug-dealing “tools of the trade” including a pay-owe sheet, baggies, a vacuum sealer, and scales with white residue; and a large stash of various drugs in his bedroom.

We [] follow our sister circuits in affirming the application of § 2D1.1(b)(12) where a defendant regularly uses his home for substantial drug trafficking activity. See Johnson, 737 F.3d at 448; Miller, 698 F.3d at 706-07; Flores-Olague, 717 F.3d at 533. Here, overwhelming evidence suggests that Tekola used his apartment as the central hub for his drug-trafficking business, and the district court acted well within its discretion in imposing the § 2D1.1(b)(12) enhancement.

3/3/26: Case on seaman’s manslaughter under 18 U.S.C. § 1115

In United States v. Boylan, --- F.4th ---, No. 24-3077 (9th Cir. 2026), the Court affirmed the conviction of Jerry Boylan, the former captain of the M.V. Conception, for seaman’s manslaughter under 18 U.S.C. § 1115, arising from a fire onboard that killed thirty-four people.

On appeal, Boylan argued that the district court’s jury instruction on § 1115 misstated the law, as it provided that guilt could follow if Boylan “engaged in misconduct and/or acted with gross negligence.” According to Boylan, the term “misconduct” permitted the jury to convict him of something less that gross negligence, contrary to what § 1115 requires.

The Court held that "§ 1115 does not require gross negligence. Known asseaman’s manslaughter, § 1115 provides that “[e]very captain . . . by whose misconduct, negligence, or inattention to his duties on [a] vessel the life of any person is destroyed . . . shall be . . . imprisoned not more than ten years.” 18 U.S.C. § 1115. Nowhere in the text is “gross negligence” required.

"Given a captain’s heightened obligations, an ordinary negligence standard is sensible in the seaman’s manslaughter context."

"Because the district court’s instruction held the government to a higher standard than what § 1115 requires, and the evidence of gross negligence was overwhelming, there was no reversible error."

2/24/26: Very helpful 1028A decision

In United States v. Motley, --- F.4th ---, No. 23-3971 (9th Cir. 2026), the Court vacated Tamara Motley’s aggravated identity theft conviction and remanded for resentencing in a case in which a jury convicted Motley of defrauding Medicare by submitting millions of dollars in false and fraudulent claims for durable medical equipment and related services.

Motley’s underlying healthcare fraud was not in dispute. The sole question was whether Motley also committed aggravated identity theft under 18 U.S.C. § 1028A(a)(1) because the companies Motley used to submit the false claims were enrolled in Medicare under her relatives’ names, not her own.

The Court held that Motley’s § 1028A(a)(1) conviction cannot stand because the government failed to advance a theory at trial that the use of her relatives’ names was “critical to the success” of the scheme and that the use itself was fraudulent or deceitful.

The Court explained that under 1028A, "'use' entails purporting “to pass [oneself] off as another person' or 'tak[ing] some other action on another person’s behalf through impersonation or forgery.'"

Thus, when the predicate offense involves fraud or deceit, Dubin requires that the manner through which the underlying offense is carried out also involve the 'fraudulent or deceitful' use of another’s means of identification." 

Dubin held that the “fraudulent or deceitful” use of another’s identification must be in addition to, and not duplicative of, the fraud or deception of the underlying crime; the use of another’s identity cannot just form part of (or be used in) the scheme, as this is inevitable in almost all healthcare fraud. Instead, a “fraudulent or deceitful” use requires the means of identification itself to be used as the vehicle of misrepresentation in the predicate offense. After all, Dubin directed courts to focus on “offenses built around what the defendant does with the means of identification in particular.”

We will observe here that it is easy to conflate the fraud and deception in the underlying scheme with the fraudulent and deceitful misuse of another’s identity. So a counterfactual may help us separate the strands of ordinary fraud from a fraudulent use of another’s identity: If, after removing the underlying predicate criminal behavior from the equation, the use of the means of identification is still considered fraudulent or deceitful, then the use stands on its own as a fraudulent or deceitful use. If, however, the use of the means of identification, considered apart from the predicate offense, is no longer fraudulent or deceptive, then the use falls outside the ambit of § 1028A(a)(1) because any fraud or deceit was merely residual to the fraud and deceit inherent in the predicate crime. 

Let’s consider how this mode of analysis worked in Dubin and our pre- and post-Dubin cases. In Dubin, without the predicate criminal conduct of inflating Medicare claims by misrepresenting the psychologist’s qualifications, there is nothing wrong with using real patients’ identifiers on claims; the overall scheme is Medicare fraud, but there has been no fraudulent use of the patients’ names. Similarly, in Ovsepian, absent the fraudulent prescription mill, keeping a patient’s records in an onsite file in case of an audit is not fraudulent or deceitful. The same is true in Hong: without the fraud of the predicate healthcare offense— misrepresenting massages as medically necessary physical therapy—the inclusion of a patient’s identifiers on Medicare claims is not fraudulent or deceitful. In Dubin, Ovsepian, and Hong, the Supreme Court and we reversed the aggravated identity theft enhancement. By contrast, in Parviz, apart from the criminal act of applying for a fraudulent passport, forging a medical professional’s signature on a false letter is still a fraudulent and deceptive use of another’s identity. 

In short, the predicate offense must be accomplished through the deployment of a fraudulent or deceptive use of means of identification—most often by impersonating or passing oneself off as someone else. And the fraudulent aspect of using the means of identification must stand on its own, separate from the fraud of the underlying crime. 

The government failed to present a theory at trial showing that Motley “use[d] the means of identification itself to defraud or deceive,” id. at 123 (emphasis added), and did so “in a manner that is fraudulent or deceptive,” id. at 132. Although the government showed that Motley’s use occurred within an unlawful and fraudulent scheme, it did not show that the use itself was fraudulent or deceptive, either toward the identity holders or toward Medicare. Motley did not steal or use the means of identification without permission, nor did the use induce Medicare to pay claims it otherwise would have denied, nor did it shift apparent responsibility from Motley to Muntz and Brown.

Although we do not lightly set aside a jury’s verdict, the record here leaves us with no choice. No evidence showed that Motley’s use of her relatives’ names was “critical to the success” of the scheme and that the use itself was fraudulent or deceitful—only that the names were part of a broader scheme to defraud, for which Motley will serve her time. 

Because the government failed to show that Motley’s use of her mother’s and nephew’s names was “specifically in a fraudulent or deceitful manner” and “at the crux” of the criminality of the underlying fraudulent billing, we vacate her § 1028A(a)(1) sentence and remand to the district court for further proceedings consistent with this opinion. 

2/20/26: Helpful decision on attempted drug crimes and expert testimony

In United States v. Castro Alvarez, --- F.4th ---, No. 24-1921 (9th Cir. 2026), the Court vacated the sentence and remanded, in a case in which a jury found Luis Miguel Castro Alavez guilty of one count of attempted possession with intent to distribute 500 grams of a mixture containing methamphetamine and one count of conspiracy to possess 500 grams of a mixture containing methamphetamine.

Castro Alvarez "argues that his conviction and sentence for attempted possession of a specific drug type and quantity should be reversed under United States v. Hunt, 656 F.3d 906 (9th Cir. 2011), because the district court improperly instructed the jury that 'the government does not have to prove that [Castro Alavez] knew that the controlled substance was methamphetamine or knew the quantity of methamphetamine.' We agree in part. To impose the heightened penalty prescribed by § 841(b)(1)(A)(viii), the government must prove that Castro Alavez intended to possess 500 grams of a methamphetamine mixture. On the facts of this case, the district court’s erroneous jury instruction was not harmless. We therefore vacate Castro Alavez’s sentence for attempted possession of a controlled substance, but not his conviction."

The Sixth Amendment and Due Process Clause “require[] that each element of a crime be proved to the jury beyond a reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 104 (2013). “[A]ny ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed’”—such as drug type and quantity under § 841(b)(1)—constitute “elements of the crime” that the government must prove to the jury beyond a reasonable doubt. Id. at 111 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). We applied these principles in Hunt and held that, to impose a heightened penalty under § 841(b)(1) based on a defendant’s attempted possession of a particular type and quantity of controlled substance, the government must prove that the defendant intended to possess the specified drug type and quantity. 656 F.3d at 913. Castro Alavez argues that we must vacate his sentence under Hunt. We agree.

In short, even if a substantive offense lacks an intent requirement, an attempt to commit that offense requires specific intent. Hunt applied this longstanding mens rea requirement to attempt under § 841(b)(1), and it controls here. The district court thus erred by instructing the jury that the government need not prove that Castro Alavez intended to possess 500 grams or more of a methamphetamine mixture. This error was not harmless. 1 We thus vacate Castro Alavez’s sentence for attempted possession of a controlled substance and remand for resentencing.

Hunt’s reasoning is not clearly irreconcilable with Collazo. Collazo rests on the principle that conspiracy requires no greater level of intent than the underlying crime. But that principle does not apply to attempt. While conspiracy demands “proof of the mens rea essential for conviction of the substantive offense itself,” Baker, 63 F.3d at 1493, attempt requires specific intent even when the underlying crime does not, see Gracidas-Ulibarry, 231 F.3d at 1193. This distinction makes sense.

In sum, Collazo does not apply here, and we are bound by Hunt.

Next, "[a]t trial, the government called Detective Kelly Moniz as an expert witness on drug trafficking methods and valuation. Detective Moniz testified that the drawings seized from Castro Alavez’s bag depicted Jesus Malverde and Santa Muerte, and that these are Mexican patron saints that drug traffickers pray to for protection, wealth, abundance, and silence. Castro Alavez argues the district court plainly erred by admitting this testimony."

When law enforcement officers are offered as experts, “reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind [the testimony].”

Because the reliability analysis “is a malleable one tied to the facts of each case,” district courts have “broad latitude” to decide how to test an expert’s reliability. United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1189 (9th Cir. 2019) (citation modified). But they “do not have discretion to abandon the gatekeeping function altogether.” Id. (citation modified). Here, the district court neglected its gatekeeping role when it allowed Detective Moniz to testify about religious iconography purportedly associated with drug trafficking.

Detective Moniz has twenty years of experience as a law enforcement officer and has investigated more than 300 narcotics-related cases. He no doubt has sufficient knowledge and experience to qualify as an expert in drug valuation and drug trafficking methods. But that expertise, alone, does not qualify him to testify about every matter remotely related to drug trafficking.

Detective Moniz’s minimal exposure to drug-related religious iconography rendered his opinion unreliable. See ValenciaLopez, 971 F.3d at 900. We thus hold that the district court erred by allowing him to testify on the subject. 

2/18/26: Helpful sentencing decision on U.S.S.G. § 3C1.1 and harmless-error review

In United States v. Ho-Romero, --- F.4th ---, No. 23-3848 (9th Cir. 2026), a divided Court vacated a sentence and remanded for resentencing in a case in which David Ho-Romero pleaded guilty to methamphetamine importation.

David Ho-Romero was sentenced to 60 months imprisonment and five years of supervised release after pleading guilty to methamphetamine importation. During the sentencing hearing, the district court applied an obstruction of justice enhancement on the basis of alleged threats Ho-Romero made to a witness who testified in grand jury proceedings regarding his drug charges. The enhancement requires that a “defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1.  The district judge held that this requirement could be satisfied in some circumstances without any intent to obstruct justice and found only that Ho-Romero’s threats could have been understood by the witness as attempts to obstruct justice. The district court made no finding as to whether Ho-Romero willfully obstructed or attempted to obstruct justice.

United States v. Lofton, 905 F.2d 1315 (9th Cir. 1990), held that a finding of intent to obstruct justice is required before the obstruction of justice enhancement can be applied. We conclude that Lofton is controlling in the threat context as in others, and that the district court therefore erred in applying the obstruction of justice enhancement without making any mens rea finding. 

This court long ago established that the term “willfully” in § 3C1.1 “contains a clear mens rea requirement,” which limits the Guideline’s scope to defendants who “consciously act with the purpose of obstructing justice.” Lofton, 905 F.2d at 1316–17 (emphasis in original) (quoting United States v. Stroud, 893 F.2d 504, 507 (2d Cir. 1990)). Relying on Lofton and the text of the Sentencing Guidelines, we have repeatedly affirmed that the “willfully” element in § 3C1.1 connotes a mens rea requirement.

In sum, Lofton controls here. The “willfully” element in § 3C1.1 requires a finding in threats cases that the defendant made a threat with specific intent to convey that the witness could be harmed if the witness participates in legal proceedings adversely to the defendant.

Where the district court applies the wrong legal standard and so makes no findings on a necessary element of a Guidelines provision, it is the district court, not this court, that must make those findings.

Whether the record is complete is beside the point. 7 Jimenez-Ortega and Ochoa-Gaytan—and many other cases—stand for the general principle that remand is appropriate in sentencing appeals where further factfinding is necessary to determine the proper Guidelines calculation.

This court has not established the standard for harmless error review of a district court’s Guidelines calculation under the circumstances present here–that is, where the district court did not make findings on an essential Guidelines element.

We take an approach to deriving a harmless error standard similar to Neder’s and so root our harmless error standard in the role of district courts with regards to Guidelines decisions. As the application of a Guidelines standard to a set of facts, the district court’s finding as to whether Ho-Romero acted with the conscious purpose of obstructing justice needed only to be supported by a preponderance of the evidence.

So, to conduct the harmless error analysis here, we proceed by assessing whether the district court would have abused its discretion if it concluded by a preponderance of the evidence that Ho-Romero did not “consciously act with the purpose of obstructing justice.” Lofton, 905 F.2d at 1317 (emphasis in original) (quoting Stroud, 893 F.2d at 507). If so, the error here is harmless; otherwise, it is not. By preserving the primary district court role in sentencing, this approach is appropriately stringent and helps ensure that the Guidelines process functions properly.

On the record at the sentencing proceeding, the district court would not have abused its discretion by determining that Ho-Romero did not act with the conscious purpose of obstructing justice. So the error here is not harmless.

That Ho-Romero was sentenced below the proper Guidelines calculation were the obstruction of justice enhancement excluded also does not obviate the need for remand.

Here, the district court applied the obstruction of justice enhancement without making necessary mens rea findings and so did not calculate the Guidelines sentence range correctly. The court would have calculated a different Guidelines range if it did not apply the two-level obstruction of justice enhancement. Using a different Guidelines range, the court may have arrived at a different sentence—for example, one below the new, lower Guidelines range to the same degree the previous sentence was below the higher Guidelines range originally calculated. 

Case on § 2A6.1(b)(4)(A) - substantial disruption of governmental functions.

In United States v. Brandendurg, --- F.4th ---, No. 24-5966 (9th Cir. 2025), the Court affirmed the district court’s imposition of a sentencing enhancement under U.S.S.G. § 2A6.1(b)(4)(A) for substantial disruption of governmental functions.

This appeal arises from Bryan Brandenburg’s bomb threats directed towards a Salt Lake City courthouse and a number of other governmental and educational institutions. Following his conviction by a jury, the district court imposed sentencing enhancements for substantial disruption of governmental functions and obstruction of justice and determined that he did not qualify for an adjustment for acceptance of responsibility. This opinion focuses on the enhancement related to “substantial disruption of . . . governmental . . . functions” under U.S. Sentencing Guideline (“U.S.S.G.”) 2A6.1(b)(4)(A). 

Brandenburg’s threats kickstarted a series of security measures to secure the courthouse, including creation of a threat working group, enhanced screenings, surveillance video reviews, and continuous patrols. However, he claims that the disruption did not relate to governmental functions because security is not a governmental function, the disruption was not public facing, and the courthouse continued operations. This crabbed view of the Guideline ignores the plain meaning of “disruption” and miscomprehends the role of courthouse security, which is an integral function of courthouse operations. Indeed, security functions performed behind the scenes, away from public view, are just as important as the prominent security apparatus the public sees upon entering a courthouse.

As then-Judge Kennedy wrote when he was a member of this court, “[t]he serenity of the court of appeals is not so debilitating that we fail to appreciate the real dangers posed by threats of violence directed at other courthouses and government facilities.” McMorris v. Alioto, 567 F.2d 897, 900 (9th Cir. 1978). Recent threats to judges and courthouses have only amplified this sentiment. We hold that a non-public-facing security response to a threat may qualify as a “substantial disruption of . . . governmental . . . functions” under Sentencing Guideline 2A6.1(b)(4)(A).

2/5/26: Safety valve decision

In United States v. Engstrom, --- F.4th ---, No. 24-1878 (9th Cir. 2025), the Court reversed the district court’s decision that Engstrom was eligible for safety valve relief under 18 U.S.C. § 3553(f), vacated the sentence imposed below the statutory minimum, and remanded for resentencing in a case in which Engstrom pleaded guilty to drug-related crimes.

This is a reversal in a government appeal on plain-error review.  The silverlining is that it contains helpful language we can use in our own plain-error cases. 

The government appeals the district court’s order sentencing Paul Engstrom to 46 months’ imprisonment for drug-related crimes. The district court sentenced him below the statutory minimum, granting him safety valve relief under 18 U.S.C. § 3553(f). But Engstrom was ineligible for safety valve relief since he failed to provide a complete debrief to the government before sentencing. He is also ineligible under Pulsifer v. United States, 601 U.S. 124 (2024), which applies to cases pending on direct appeal. We therefore reverse and remand to the district court for resentencing.

In this case, the district court imposed a below-minimum sentence after holding a resentencing hearing under Fed. R. Crim. P. 35.  The district court concluded it was authorized to hold a R. 35 resentencing because it clearly erred in sentencing Engstrom to 70 months during the initial sentencing. 

The parties dispute whether we can review the district court’s order holding a Rule 35 resentencing hearing. The government argues that it only forfeited its argument by not objecting. Thus, it asserts we should review for plain error. United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). But Engstrom argues that the government waived this challenge by not objecting, thus precluding our review. 

No waiver occurred. “[F]orfeiture is the failure to make a timely assertion of a right, whereas waiver is the intentional relinquishment or abandonment of a known right.” United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (cleaned up). “Forfeited rights are reviewable for plain error, while waived rights are not.” Id. If a party “invite[s] the error, and relinquishe[s] a known right, then the error is waived and therefore unreviewable.”

The government did not object to the district court’s Rule 35 hearing. But failing to object to a district court’s sentencing decision—or even affirmatively endorsing it—is not waiver. United States v. Depue, 912 F.3d 1227, 1233 (9th Cir. 2019). Waiver occurs only if “there [is] evidence indicating the [parties] knew of their rights and chose to relinquish them anyway.” Id.; see also Perez, 116 F.3d at 845 (collecting cases showing knowing relinquishment of right).

The district court’s choice to hold a Rule 35 resentencing hearing is not plain error.

The district court did not err when it concluded that it needed to resentence Engstrom. Under the safety valve provision, “a court is to sentence a defendant without regard to any statutory minimum if it finds that” the five statutory criteria in § 3553(f) are met. Pulsifer, 601 U.S. at 128 (cleaned up). The district court has an independent duty to determine whether the safety valve applies and, if so, it then sentences the defendant without regard to the statutory minimum for a particular offense.  

The district court’s actions were clear error of a “technical” kind under Rule 35(a). See Technical, OXFORD ENGLISH DICTIONARY (online ed. 2009) (sense 2.d) (involving “strict legal interpretation”); United States v. M. M., 23 F.4th 216, 221 (3d Cir. 2021) (“arithmetical and technical errors” are “easily identifiable and readily ascertained from the sentencing proceeding and judgment,” akin to misapplying “mandatory” sentencing conditions). The district court thought that it erred by considering the mandatory minimum once it made clear that it was giving Engstrom the benefit of the safety valve. See United States v. Mejia-Pimental, 477 F.3d 1100, 1109 (9th Cir. 2007). In such a situation, a district court has the latitude to conduct a Rule 35 rehearing to correct the technical error. If the district court wanted to “give [the benefit of the safety valve] to Engstrom,” then it needed to sentence him without regard to the mandatory minimum. Whether the district court was correct that Engstrom should have received the benefit of the safety valve (it was not), it had the latitude under Rule 35 to correct its perceived technical error of considering a mandatory minimum sentence for a defendant it thought should benefit from safety valve relief. Since the district court identified a clear error in the original sentencing hearing, conducting a Rule 35 rehearing was not error. The government’s argument thus fails on the first step of plain error review.

Engstrom is not eligible for safety valve relief for two reasons. First, Engstrom did not satisfy the statutory debrief requirement in § 3553(f)(5). Second, Pulsifer also precludes Engstrom from safety valve relief.

The district court failed to abide by the three “basic rules of statutory interpretation”: “(1) Read the statute; (2) read the statute; (3) read the statute!”  

To satisfy the debrief requirement, Engstrom therefore should have provided “all the information available to him, regardless of whether it was useful or already known to the government.”

[A] defendant can affirmatively meet the requirement—at least when the government refuses a meeting—without a formal debrief. But the statute still requires a defendant to affirmatively provide “all information and evidence the defendant has concerning the offense” to the government not later than the time of the sentencing hearing. § 3553(f)(5) (emphasis added). The district court read this requirement out of the statute, characterizing it as “no requirement at all,” proceeding as if virtually any truthful statement “given upon arrest,” a truthful “guilty plea allocution,” or “[a]dditional statements” may be enough. We reject this approach.

Engstrom thus did not meet the safety valve requirement. He did not provide a complete disclosure. The district court never asked him whether he had given all the information about the crime to the government, nor did the record support the existence of such disclosure. Engstrom never claimed that such disclosure occurred. Given these circumstances, Engstrom could not qualify for safety valve relief.

Engstrom cannot benefit from the safety valve for an additional reason. The Supreme Court’s decision in Pulsifer v. United States, 601 U.S. 124 (2024), forecloses such relief.  

Engstrom had a prior 3-point offense for conspiracy to distribute a controlled substance (but neither of the other two disqualifying offenses). Therefore, under Pulsifer, Engstrom is categorically ineligible for safety valve relief.

The district court rendered its sentence before the Supreme Court issued Pulsifer. But ordinarily “an error is plain if it is contrary to the law at the time of appeal.”

The opinion also contains a lengthy discussion of the Ex Post Facto Clause, its history, and its relationship to the due process notice requirement. 

At its core, the due process right to fair notice addresses “the unfairness of imposing new burdens on persons after the fact.” Id. at 270. It ensures that the government is not “free to change the law retroactively based on shifting political winds, [because] it could use that power to punish politically disfavored groups or individuals for conduct they can no longer alter.” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1146 (10th Cir. 2016) (Opinion of Gorsuch, J.). But absent any such concerns—as in this case—a federal court has an unflagging obligation to exercise the judicial power in its normal mode (i.e., retroactively). 

Applying Pulsifer here does not violate Engstrom’s due process right. The application of subsequent judicial decisions on direct appeal does not violate a defendant’s due process when, as here, Pulsifer’s interpretation of § 3553(f)(1) was foreseeable. 

1/13/26: Important en banc decision

In United States v. Gomez, --- F.4th ---, No. 23-435 (9th Cir. 2026), the en banc court affirmed Jesus Ramiro Gomez's sentence for distribution of methamphetamine.  The district court sentenced him as a career offender based on its conclusion that his prior conviction for assault with a deadly weapon under California Penal Code § 245(a)(1) was a crime of violence—a classification Gomez did not challenge until his opening brief on appeal.  Although the en banc Court held that California Penal Code § 245(a)(1) is not a crime of violence, it further determined that, based on the state of the law at the time of sentencing, the district court did not commit plain error in concluding to the contrary.  In other words, even though Gomez was erroneously sentenced as a career offender, he gets no relief.  

In reaching this result, the Court first "overrul[ed] our precedent recognizing a 'pure question of law' exception to Rule 52 and h[e]ld that unpreserved claims of legal error may be reviewed only for plain error."

The time has come for us to right our course. We “creat[ed] out of whole cloth” a pure question of law exception to Rule 52(b)—an exception that is incompatible with Supreme Court precedent and the plain language of the Rule. We now overrule our precedent establishing such an exception. Because Gomez did not object in the district court to the classification of his Section 245(a)(1) conviction as a crime of violence, his claim is reviewable only for plain error.

The Court then held, "in light of the Supreme Court’s decision in Borden v. United States, 593 U.S. 420 (2021), a conviction under California Penal Code § 245(a)(1) does not qualify as a crime of violence."

Following Borden, the elements clause is satisfied only by crimes that require uses of force with a mens rea more culpable than recklessness. Stated differently, if a person can be convicted under a criminal statute by using force against another with only the “conscious[] disregard[]” of a “substantial and unjustifiable risk,” then the crime is not a crime of violence. 

[A]s explained, Section 245(a)(1) “does not require . . . a subjective awareness of the risk that an injury might occur.” Awareness of the facts that would cause a reasonable person to “find that the act would directly, naturally and probably result in a battery,” does not equate to awareness of the risk. And a defendant who lacks a subjective awareness of any risk cannot “consciously disregard[] a substantial and unjustifiable risk.” 

Accordingly, we overrule our pre-Borden decisions holding that a conviction under Section 245(a)(1) is a crime of violence under Section 4B1.1(a). 

Finally, however, the Court held the error was not plain. 

“[T]he Supreme Court has made clear that whether an error is ‘plain’ for purposes of Rule 52(b) is judged ‘at the time of review’ by the appellate court and not at the ‘time of error.’” “The question, then, is whether the district court’s [determination], ‘even if now wrong (in light of the new appellate holding),’ should . . . be characterized as ‘questionabl[y]’ wrong rather than ‘plainly wrong.’” Id. requires us to assess “whether our analysis reveals the question at issue to have a ‘plain’ answer or whether that analysis confirms that we have instead answered a close and difficult question.”

[W]e cannot conclude that the answer we have reached today is plain. Gomez has therefore not satisfied his burden of showing that the district court committed plain error when it applied the career offender enhancement to his sentence. And, in light of that conclusion, we need not answer whether the error affected Gomez’s substantial rights.

1/8/26: Question certified to the Supreme Court of California

In United States v. Soto, --- F.4th ---, No. 23-4072 (9th Cir. 2026), the Court certified to the Supreme Court of California the following question: 

When a defendant is charged with possession of a listed controlled substance under California Health & Safety Code § 11378, must the state prove, and must the jury unanimously agree, that the defendant possessed the actual listed controlled substance, and not an analog of that substance as defined under California Health & Safety Code § 11401? Or may the jury convict if it finds the state has proven the defendant possessed either the actual controlled substance or an analog of that substance, without unanimous agreement as to which?

"The issue in this case is whether defendants Anthony Soto ('Soto') and Stephen Reid ('Reid'; collectively, 'Defendants') are subject to the career-offender sentencing enhancement, U.S.S.G. § 4B1.1, because of their prior convictions under California Health & Safety Code § 11378. That issue turns on a question of California law."

"If the state must prove that a defendant possessed the actual listed controlled substance charged, and not an analog of that substance, then Defendants would be subject to the career-offender enhancement due to their prior § 11378 convictions. But if a controlled substance analog is an alternative means of proving that a defendant possessed the listed controlled substance charged, then Defendants would not be subject to the career-offender enhancement." 

The order further explains in detail why the question is important and determinative. 

1/7/26: Case on 404(b) evidence in the context of 8 U.S.C. § 1324

In United States v. Ruiz, --- F.4th ---, No. 24-386 (9th Cir. 2026), the Court affirmed Alex Ruiz’s conviction for transporting illegal aliens in violation of 8 U.S.C. § 1324, in a case in which Ruiz argued that the district court abused its discretion in admitting evidence of his previous conviction for the same crime. 

"We have developed a four-part test to decide when a prior bad act is admissible: '(1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that defendant committed the other act; and (4) (in certain cases) the act is similar to the offense charged.'"  The Court concluded the prior conviction satisfied all four prongs. 

As to the similarity prong, the Court explained, "it matters how we go about assessing similarity. One approach this court has used in answering that question is to compare the magnitude of the differences in the crimes in the current case to the differences that this court has approved as 'similar' in past cases.  Applying that framework, Ruiz’s current crime and his past conviction are similar."

"In sum, the prior conviction satisfies each prong of the test for Rule 404(b)—it tended to prove the material point of knowledge, two years is not too remote in time, the stipulation and redacted documents provided sufficient evidence of the prior bad act, and the prior crime was sufficiently similar to the offense charged. Therefore, the district court did not abuse its discretion in admitting the prior conviction under Rule 404(b)." 

1/2/26: First published criminal decision of the year

In United States v. Vazquez-Ramirez, --- F.4th ---, No. 24-3544 (9th Cir. 2026), the Court affirmed Oscar Vazquez-Ramirez’s conviction for violating 18 U.S.C. § 922(g)(5)(A), which prohibits persons “illegally or unlawfully in the United States” from possessing a firearm. Vazquez-Ramirez moved to dismiss the indictment, raising an as-applied Second Amendment challenge to § 922(g)(5)(A). 

"We join all our sister circuits in concluding that the Second Amendment does not invalidate § 922(g)(5)(A)."

As it is not necessary to resolve the issue in this case, like several of our sister circuits, we will assume without deciding that noncitizens illegally present in the United States could be considered part of “the people” protected by the Second Amendment. And like our sister circuits, we conclude that the government has met its burden to show that § 922(g)(5)(A) is consistent with the nation’s historical tradition of firearm regulation." 

Section 922(g)(5)(A) fits comfortably with the “how” and the “why” of our Nation’s regulatory tradition of disarming noncitizens and those who have not sworn allegiance to our country. See Rahimi, 602 U.S. at 692. First, the federal statute has a similar “how” to historical statutes. It disarms persons unwilling or unable to swear the oath of allegiance and loyalty to the United States. . . . Aliens cannot 'surreptitiously enter a foreign nation in violation of the immigration prerogatives of the sovereign and expect to receive all the rights and protections of the citizenry.'"

Judge Bumatay concurred because he "would hold that 'the people' refers only to 'members of the [Nation’s] political community, which categorically excludes illegal aliens."  Were that holding ultimately to carry the day in the Ninth Circuit or others, it would obviously have profound consequences for any constitutional protections currently afforded to the undocumented.