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.