7/2/26: Case on Sentencing Guidelines for money laundering offenses

In United States v. Shi, et al., --- F.4th ---, No. 24-2054 (9th Cir. 2026), the Court affirmed in part and vacated in part the sentences imposed on Defendants Blade Bai, Bowen Hu, and Tairan Shi following their convictions for offenses arising from their participation in a sophisticated scheme to launder Target gift cards purchased by telephone-scam victims; and remanded for a limited resentencing. 

This case is about how to properly calculate the Guidelines for these types of offenses. 

Over the course of a year, Defendants Blade Bai, Bowen Hu, and Tairan Shi (Defendants) participated in a sophisticated scheme to launder Target gift cards purchased by telephone-scam victims. The jury convicted Defendants of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) (Count 1). The jury also convicted Bai of conspiracy to commit money laundering while under release in violation of 18 U.S.C. §§ 1956(h) and 3147 (Count 2).1 Defendants appeal their sentences, challenging the district court’s calculation of the loss amount, application of the sophisticated laundering enhancement, and application of the aggravated and minor role adjustments. For the reasons below, we affirm as to the calculation of the loss amount and role adjustments but reverse as to the sophisticated laundering enhancement.

We first consider Defendants’ claims regarding the district court’s calculation of loss amount for the base offense level determination. Defendants contend that (1) as a matter of law the intended loss amount may not be included in the value of laundered funds, (2) the district court improperly calculated the amount of laundered funds, and (3) if the loss amount calculation was not error, the district court should have applied a three-level reduction under U.S.S.G. § 2X1.1(b)(2). 2 For the reasons discussed below, we reject these arguments and conclude that the district court properly applied and calculated the loss amount.

To determine the offense level, the district court applied § 2X1.1, which is the starting point for sentencing calculations of offenses involving attempts, solicitations, and conspiracies not already covered by specific offense guidelines. Under § 2X1.1(a), courts calculate the base offense level by using “[t]he base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.” (Emphases added). The “substantive offense” “means the offense that the defendant was convicted of soliciting, attempting, or conspiring to commit.” Id. cmt. n.2. 

Accordingly, the district court turned to § 2S1.1, the money laundering guideline. Section 2S1.1(a)(2) provides for a base offense level of “8 plus the number of offense levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the value of the laundered funds.” The district court found that the value of the laundered funds conspired to be laundered exceeded $1.5 million but was less than $3.5 million. It thus increased Defendants’ base offense level by 16 pursuant to § 2B1.1(b)(1)(I) for a total level of 24. 

Defendants contend this analysis was error, arguing that the term “adjustments” as used in § 2X1.1(a) refers only to specific offense characteristics under § 2S1.1(b), and does not apply to alter the base offense level. Thus, under Defendants’ theory, the district court only considers intended loss when looking at specific offense characteristics.

[W]e conclude that the district court did not err by considering the intended loss as part of the “value of the laundered funds” under § 2S1.1(a)(2). 3 Defendants’ “intended conduct is a proper basis for the enhancements the district court applied,” including an “enhancement[] for loss amount . . . based on conduct that [they] intended but did not carry out.”

Defendants also argue that even if the district court did not err by considering the intended loss in its base offense level determination, it nevertheless improperly calculated the amount of funds laundered. At sentencing, the evidence showed, and the district court agreed, that the total value of laundered funds came to $2.48 million. Defendants argue that the district court wrongfully assumed that every single card number was valued at $500, constituted proceeds of a specified unlawful activity, and was successfully laundered. 

We see no basis to disturb the district court’s findings on review. The Government presented evidence extracted from Defendants’ WeChat messages showing that over the course of 12 months, Defendants received 5,256 unique gift card numbers from Magic Lamp. After further automated extraction and manual review, the Government calculated that the average value of each card was $472. Thus, the total value came to $2.48 million.

Finally, Defendants alternatively assert that if the district court properly calculated their base offense level, it should have also granted them a three-level reduction under § 2X1.1(b)(2).

The district court did not plainly err by not applying this three-level reduction. The evidence showed that Defendants engaged in a money laundering scheme for over a year. There is no indication that they intended to stop their unlawful activities until Bai was arrested in November 2020. And the jury found in Count 2 that even the first arrest did not stop Bai from continuing to offend. Further, Magic Lamp continually supplied Defendants with cards for the duration of the conspiracy, supporting the inference that the cards they transacted were successfully laundered. In sum, we hold that the district court did not err with respect to its calculation of loss amount.

Defendants next challenge the two-level enhancement for sophisticated laundering under § 2S1.1(b)(3).

The district court determined that Defendants were engaged in the business of laundering funds and so applied subsection (b)(2)(C) to increase Defendants’ offense level by four. It also applied subsection (b)(3) on the basis that Defendants engaged in sophisticated laundering, which increased the offense level by another two levels. Defendants thus received a six-level total increase under § 2S1.1(b). The issue we must decide is whether subsection (b)(3) requires the district court to have actually imposed the two-level increase under subsection (b)(2)(B), or if it is enough simply that the defendant was convicted under 18 U.S.C. § 1956.

As an initial matter, the parties dispute the applicable standard of review.

Defendants respond that “it is claims that are deemed waived or forfeited, not arguments.” United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). They assert that de novo review applies because though their argument now includes condition (A) as a basis for why subsection (b)(3) does not apply, their general claim that subsection (b)(3) does not apply was raised to the district court. Defendants have the better argument.

[T]he plain language and structure of § 2S1.1 leads us to conclude that a district court must actually apply (b)(2)(B) before a defendant can be subject to (b)(3). Because the district court here applied (b)(2)(C), and not (b)(2)(B), it improperly imposed the two-level enhancement under (b)(3) for sophisticated laundering. This error requires that we vacate and remand for the limited purpose of adjusting the guideline computation and resentencing the Defendants. The district court is not required to conduct a plenary resentencing.

Finally, we consider the role adjustments applied to Hu’s and Shi’s sentences. For the reasons discussed below, we affirm the district court’s application of the aggravated role adjustment to Hu and Shi and its decision not to grant Shi a minor role adjustment.

6/29/26: SCOTUS on the Fourth Amendment and the Ninth on return of property

First, in Chatrie v. United States, 609 U.S. ---, No. 25-112 (2026), the Supreme Court majority held that Police officers conducted a Fourth Amendment search when they acquired Chatrie’s location data from Google because an individual has a reasonable expectation of privacy in his cell-phone location information.  In other words, the Court held that geo-fence warrants implicate the Fourth Amendment.  The majority's decision, however, is a bit unusual because it does not consider the validity of the warrant obtained, but only whether a warrant was necessary at all. 

In recent years, law enforcement officers have employed so-called geofence warrants to obtain information that technology companies collect about their users’ cell-phone locations. Suppose that investigators know a crime was committed at a particular place and time, but do not have a suspect. They may draw a “geofence”—a virtual perimeter—around the crime scene and get a warrant compelling a company to hand over data about the cell phones located in that area near the time of the crime. Following a process specified in the warrant, the company will turn over the cell-phone data and eventually identify by name one or more of the users thus disclosed. 

The geofence warrant at issue here was directed to Google, and used to solve a bank robbery. Hundreds of millions of Google users have activated a service called Location History, which records the location of a user’s cell phone every two minutes or so. Through a geofence warrant, police officers required Google to turn over Location History data revealing cell phones within the vicinity of a bank at around the time it was robbed. At the end of the multi-step process described in the warrant, Google gave the police three names. The Federal Government soon charged one of the individuals thus identified, petitioner Okello Chatrie, with committing the crime. 

Today, we consider how the Fourth Amendment applies to that use of a geofence warrant. Answering that question in full would mean deciding whether the police conducted a Fourth Amendment “search” when they acquired the cellphone data leading to Chatrie’s arrest and, if so, whether that search was reasonable given the features of the warrant they employed. We decide the first part of that inquiry today, concluding that the police conducted a search when they gained access to Location History data. An individual has a reasonable expectation of privacy in records about his cell phone’s location, and police intrude on that constitutionally protected interest when they demand the information—even though for only a limited time, and from a third-party tech company. We leave to the Court of Appeals the further question whether, given the warrant issued, the search here was reasonable, meaning that each of its steps was properly described with particularity and found to be supported by probable cause.

We granted certiorari solely on the question whether the police violated the Fourth Amendment in obtaining Chatrie’s location data, thus declining to consider the exclusionary rule issue. See 607 U. S. 1148 (2026). The disputed Fourth Amendment question divides into two parts. First, did law enforcement officials conduct a search under the Fourth Amendment when they acquired Chatrie’s location data from Google? We hold that they did because an individual has a legitimate expectation of privacy in his cell-phone location data. Second, did the multi-step geofence warrant issued here make that search reasonable? We leave that question—which requires deciding whether the warrant satisfied the Fourth Amendment’s probable cause and particularity requirements at each stage of the search process—to the Court of Appeals to address in the first instance.

Whatever the form of an attempted incursion, the Fourth Amendment protects Americans’ long-held conviction that no government official should have free access to the most closely kept aspects of their lives.

Contrary to the Government’s view, an individual has a legitimate expectation of privacy in the information Location History collects about his cell phone’s—meaning his own—movements. The police invade that expectation, and thus conduct a search, when they acquire that information, even though for only a limited period of time and even though via a third-party tech company.

Location History resembles other private materials—think of emails, documents, photographs, or calendars—that even if stored on Google’s servers, a user reasonably views as his own. And as a result, that he reasonably expects to be shielded from the “inquisitive eyes” of the government. 

The Government replies with an odd argument. It thinks that “tracking [someone] into a private residence”—yes, even for two hours—would “probably” be a search, but tells us not to worry because Chatrie did not go home. Tr. of Oral Arg. 98, 134. That approach, however, is foreign to the way the Fourth Amendment works. Whether something is a search does not depend on what it finds. See Di Re, 332 U. S., at 595 (“[A] search is not to be made legal by what it turns up. In law it is good or bad when it starts”). An officer, after all, cannot know the fruits of a given surveillance in advance. The surveillance must be either a search or not regardless. The Government’s concession thus gives away its argument that, for purposes of the Fourth Amendment, two hours of cell-phone location data is not enough.

Location History is even more “revealing” than CSLI, because it provides a yet more precise record of an individual’s movements. See supra, at 16–17. Access to that record enables officials to undertake nearly perfect, retrospective surveillance of countless persons and places. See supra, at 17–18. And for Location History, that surveillance is based on information that a user reasonably understands as his own, even though stored on Google’s servers—much like his emails, photos, and calendar entries. See supra, at 18. Likewise, the information is “not truly shared,” in the normal sense of wanting a third party to see or use it. Carpenter, 585 U. S., at 315. The exposure of that information to Google is merely what happens when a user avails himself of one of the services on his cell phone. Or said a bit differently, it is the automatic price of conventional cellphone usage—which, just as Carpenter noted, is a “pervasive and insistent part of daily life.” Ibid. So just as the third-party doctrine did not apply in Carpenter, it does not apply here.

For all those reasons, we hold that police officers invade a cell-phone user’s reasonable expectation of privacy when they access his Location History. It does not matter if the time period scrutinized was only two hours. Nor does it matter that the materials obtained were handed over by a third-party tech company. When the government “accesses historical cell phone” location information—Location History as much as CSLI—it “conducts a search under the Fourth Amendment.”

That conclusion does not resolve this case, because the Fourth Amendment prohibits only searches that are “unreasonable.” When law enforcement officials undertake a search to discover evidence of a crime, the reasonableness standard generally requires that they seek a warrant from “a neutral and detached magistrate.” Johnson v. United States, 333 U. S. 10, 14 (1948); see Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 653 (1995).11 That requirement subjects the officials’ assessment of a search’s propriety to the “deliberate, impartial judgment of a judicial officer.” United States v. Grubbs, 547 U. S. 90, 99 (2006). The magistrate, in turn, may issue a warrant only when “probable cause is properly established and the scope of the authorized search is set out with particularity.” Kentucky v. King, 563 U. S. 452, 459 (2011). 

“[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U. S. 213, 232 (1983). But a magistrate must always determine that there is a “fair probability that contraband or evidence of a crime will be found” in the place searched. Id., at 238. That means determining, to the requisite “fair probability,” both that the place searched will have the materials sought and that those materials will contain evidence “aid[ing]” in a criminal’s “apprehension or conviction.” Messerschmidt v. Millender, 565 U. S. 535, 551, 552, n. 7 (2012); see Zurcher v. Stanford Daily, 436 U. S. 547, 556 (1978) (“The critical element” is whether there is the requisite “cause to believe that the specific ‘things’ to be searched for and seized are located” in the targeted place). The particularity requirement, for its part, ensures that the search will be of an appropriate scope—that it is “carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U. S. 79, 84 (1987). That requirement typically looks to such matters as the geographic and durational expanse of the search. See id., at 84–85; Karo, 468 U. S., at 718. And it too must take account of “particular factual contexts,” including in surveillance cases the nature of the technology to be used. 

In his famed and vindicated dissent, Justice Brandeis explained why a wiretap was a search, subject to Fourth Amendment requirements. See Olmstead v. United States, 277 U. S. 438, 471 (1928). Those who drafted the Amendment could not have imagined such a technology. But they understood, Justice Brandeis wrote, a matter of more transcendent importance: that Americans had “as against the Government, the right to be let alone” and that the Fourth Amendment must protect against “every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed.” Id., at 478. 

Far more recently, this Court in Carpenter invoked Justice Brandeis’s opinion in explaining why law enforcement officials could not have “unrestricted access to a wireless carrier’s database of physical location information.” 585 U. S., at 320. Said Carpenter: “[T]he Court is obligated—as ‘[s]ubtler and more far-reaching means of invading privacy have become available to the Government’—to ensure that the ‘progress of science’ does not erode Fourth Amendment protections.” Ibid. (quoting 277 U. S., at 473–474 (dissenting opinion)). For new technological tools, the Court continued, may “risk[] Government encroachment of the sort the Framers, after consulting the lessons of history, drafted the Fourth Amendment to prevent.” 585 U. S., at 320. 

Today’s decision follows from the same judicial obligation, to guard against the same risk of undue encroachment. The Fourth Amendment applies, too, when officials tap into Google’s “database of physical location information.” Ibid. That database is new, but the principle covering it is not: That principle is instead the one our history has given. The Fourth Amendment must, as ever, protect against unjustified governmental intrusion on the privacy of the individual.

Next, in Cannon v. United States, --- F.4th ---, No. 24-1317 (9th Cir. 2026), the Court reversed the district court’s grant of summary judgment for the federal government in Lionel Cannon’s motion under Federal Rule of Criminal Procedure 41(g) seeking the return of his cash seized by the government.

The FBI was investigating Cannon on federal drug trafficking charges. During a lawful search, agents seized $585,000 in cash. FBI Special Agent Scott Bowmann pocketed $218,200. After pleading guilty to drug charges, Cannon moved under Rule 41(g) for the return of the $218,000 that Agent Bowman had stolen and had never been forfeited.

Federal Rule of Criminal Procedure 41(g) provides that a person who has been deprived of his property by the government may move for the property’s return. In Ordonez v. United States, 680 F.3d 1135 (9th Cir. 2012), we held that when property seized by the government has been lost or destroyed, “an award of money damages against the government under Rule 41(g) is barred by sovereign immunity.” Id. at 1140. The issue in this case is whether the same rule applies to cash that the government seized, lost, but then recovered in restitution proceedings. We hold that when the government has recovered money traceable to the funds it lost, the person from whom it was seized may seek its return under Rule 41(g). When its return is sought, the government bears the burden of demonstrating that it has a legitimate reason to retain the money. The government did not meet its burden here. We thus reverse the district court’s grant of summary judgment for the government.

Cannon seeks the return of the very thing to which he is entitled, namely “the property” under Rule 41(g). In this case, that is the cash the government seized but did not pursue in forfeiture proceedings. As in Bowen, Cannon’s claim is not for money damages; rather, it is “a suit seeking to enforce the statutory mandate itself, which happens to be one for the payment of money.” 487 U.S. at 900. The fact that Cannon seeks the return of cash does not make his claim one for money damages. We have long treated Rule 41(g) motions—even those for return of cash seizures—as motions in equity, not law, and equity is directed to ownership of the property itself, not to compensation, which is a legal remedy. 

But that the money the United States is recouping from Agent Bowman is not the same “physical currency”—that is, the exact same bills that were taken from Cannon’s safe—does not alter the result. Such a hyperformalistic approach misconstrues the nature of money. Money differs from other property in that its principal value lies in the unit of account; its exchange value, not its intrinsic value. 

The relevant question then is not whether the bills Agent Bowman is remitting to the government have the same serial numbers as the ones from Cannon’s safe, but whether he is remitting the value or amount traceable to the money taken from Cannon’s safe. We think it clear that he is. 

[W]e must begin with a presumption that Cannon is in lawful possession of the property taken from him; it is the government’s burden to show that he did not lawfully possess it. The government has not satisfied its burden.

Nowhere in the interview memorandum does Cannon admit that the money was drug proceeds or that he was otherwise not entitled to the money. The government’s claim to the contrary is simply an inference from silence. The bare fact that Cannon had money in a safe—admittedly, a lot of money—is not proof that the money was obtained from entirely illegitimate and unlawful sources, and Cannon’s admission in his plea deal that some of the money was drug proceeds is not an admission that all of it was.

The district court stated that Cannon’s plea deal to forfeit $366,800.00 from the safe “support[s] an inference that he agreed to forfeit all property seized from the safe in his mother’s house.” But this inference impermissibly shifts the burden of proof and misstates the parties’ bargaining position. During the plea negotiations, both Cannon and the United States understood that the government had seized far more than $366,800 from his safe that day. The $366,800 figure on the forfeiture order was no clerical error—it was the amount the parties had negotiated.

The government—not Cannon—bears the burden of demonstrating a legitimate basis for refusing to return the money; if it cannot, it must return Cannon’s property. Wright, 49 F.4th at 1225. Thus, the government bore the burden of showing that the entire amount seized was unlawful proceeds. Cannon provided evidence supporting his claim that lawful funds were intermingled with the drug proceeds subject to forfeiture. The government had the opportunity to dispute this. On this record, it has not done so, and summary judgment was in error. We return the case to the district court for additional proceedings.  

7/18/26: Important SCOTUS decisions

Two criminal decisions today from the Supremes. 

First, in Hunter v. United States, 608 U.S. ---, No. 24–1063 (2026), the Court considered whether plea agreement appellate waivers are subject to a general miscarriage of justice exception to enforceability.  Good news, they are. 

Plea agreements between a criminal defendant and the Government often include an appeal waiver—a promise by the defendant not to appeal his conviction or eventual sentence. In this case, we address a dispute about when such a promise is unenforceable in the sentencing context. We principally hold that an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice—meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute.

We thus approve the majority view among the courts of appeals that an appeal waiver is unenforceable when it would result in a miscarriage of justice. That rule, properly understood and applied, sets a high bar: The waiver may be set aside only if the sentence is marred by the kind of egregious error that would bring the judicial system into disrepute. The error must be obvious—not one a judge could reasonably make. And it must be of the type that would undermine public confidence in the judiciary. Sentencing is a complex affair in our criminal justice system, involving for example the detailed calculation of a Sentencing Guidelines range and the mandatory consideration of multiple sentencing factors. In that endeavor, it is unfortunate but inevitable that mistakes will occur. Such standard-fare errors in misapplying sentencing law cannot cancel an appeal waiver. Were they to do so, the utility of waivers in plea negotiations could plummet: such a provision would have less value to the Government, and so might induce fewer concessions to a defendant. And still more to our point, that kind of standard error is not likely to discredit the judiciary’s commitment to law. But some faults in sentencing can. So a high bar is not the same as an insurmountable one. The point of the miscarriage-of-justice limit, as many appellate courts have properly applied it, is to offer a safety valve for extreme cases—a way out of a waiver when the justice system’s basic integrity is at stake. 

The nature of the miscarriage-of-justice limit precludes any attempt to list all the situations in which it will overcome an appeal waiver. Extreme cases, after all, are hard to anticipate before they happen. But a few examples of the kinds of errors we mean—the kind that would bring the judiciary into disrepute—may provide guidance to lower courts. First, a defendant may appeal a sentence exceeding what the relevant statute allows—most commonly, a term of years above the maximum prescribed. See, e.g., Kim, 988 F. 3d, at 810–811, and n. 1; supra, at 10. Second, a defendant may appeal a sentence that is infected with a blatant constitutional error, such as when a judge takes account of a constitutionally impermissible factor (like race) or imposes a constitutionally infirm condition of supervised release (like barring a defendant from becoming pregnant). See, e.g., United States v. Elliott, 264 F. 3d 1171, 1173 (CA10 2001); supra, at 11. And third, a defendant may appeal if his sentence was imposed without “some minimum of civilized procedure” as in, yes, the “twelve orangutans” case—or less extravagantly, one in which the judge refused to hold a hearing consonant with basic principles of law. United States v. Adkins, 743 F. 3d 176, 192–193 (CA7 2014); see United States v. Behrens, 375 U. S. 162, 165–166 (1963). These examples are just examples, not intended to be exclusive, but they serve to illustrate the high bar a defendant must surmount to overcome an appeal waiver.

Justice Gorsuch has a strong concurrence that begins: 

In our times, the jury trial has given way to a conveyor belt of plea bargains. At least some responsibility for that development lies with this Court. When confronted with coercive prosecutorial tactics designed to induce defendants to take plea deals, the Court has often condoned those practices or let them pass in silence. Today, the Court begins to correct course. It rules that prosecutors may not always leverage their plea-bargaining power to induce a defendant to forego the right to contest his sentence on appeal. I agree and write separately to outline how we got here and some of the work still ahead.  

Also of note, there is some helpful language on waiver in general: "Under ordinary litigation principles, a waiver of a right requires some affirmative signal of 'abandonment.' Staying silent—as here, not picking a fight—does not qualify. "

Next, in United States v. Hemani, 608 U.S. ---, No. 24–1234 (2026), the Court considered the constitutionality of 18 U.S.C. § 922(g)(3).  Under its terms, anyone who is an “unlawful user of ” or “addicted to” a “controlled substance” is automatically banned from possessing a gun.  "Ali Hemani uses marijuana a few times a week. That fact alone, the government says, means he is automatically banned from possessing a firearm under federal law. And because Mr. Hemani admits he owns a gun despite this ban, the government now seeks to prosecute him, imprison him for up to 15 years, and disarm him for life. This case poses the question whether the government’s prosecution of Mr. Hemani is consistent with the Second Amendment."  The Court held it was not. 

In many respects, this case is a narrow one. We do not address efforts to ban addicts, see n. 2, supra, or those presently intoxicated, from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms. See n. 6, supra. We do not address 18 U. S. C. §922(g)(1)’s provision disarming individuals convicted of felonies (often including drug-related ones). Ibid. We do not even address whether the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.

All that is before us is one, if surely ambitious, theory. The government maintains that it may automatically strip Mr. Hemani of his Second Amendment right to possess a firearm because he uses marijuana a few times a week. More than that, because he possessed a gun despite this prohibition, the government insists it may imprison him for up to 15 years and disarm him for life. According to the government, none of this turns on how much marijuana Mr. Hemani uses or what effect it has on him. It makes no difference either if he keeps a firearm only in his home for self-defense, never misuses a gun while intoxicated, and never poses a danger to himself or others as a result of his marijuana use. The only thing the government must show, it says, is that an individual like Mr. Hemani regularly uses any amount of any controlled substance. 

To square that expansive theory with the Second Amendment, the government invites us to draw an analogy between its present regulation and historical laws addressing habitual drunkards. Those laws, the government contends, demonstrate a tradition of firearm regulation consistent with its effort to disarm any regular user of any controlled substance without any further showing. But the government’s analogy fails under every measure it asks us to consider: The historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways. And faced with all these shortcomings in the government’s submission, we cannot say it has carried its conceded burden of showing its prosecution of Mr. Hemani complies with the Second Amendment.  

6/11/26: SCOTUS reverses the Ninth on venue

In Abouammo v. United States, 608 U.S. ---, No. 25-5146 (2026), a unanimous Supreme Court reversed the Ninth Circuit's judgment and held, "a defendant charged with violating §1519 must be tried in the district where the falsification occurred; he cannot be tried in a different district where the investigation was located."  Here is some of the key language: 

Venue in criminal cases mattered more than might be supposed to the Nation’s Founders.

As a result, the Constitution not once but “twice safeguards the defendant’s venue right.” United States v. Cabrales, 524 U. S. 1, 6 (1998). Article III instructs that “Trial of all Crimes” shall “be held in the State where the said Crimes shall have been committed.” §2, cl. 3. And the Sixth Amendment reinforces that command, entitling criminal defendants to a jury “of the State and district wherein the crime shall have been committed.” 

To implement that constitutional rule—meaning, to decide where the crime was committed—courts generally must determine the location of the offense’s “essential conduct elements.”  

Under that framework, the venue for trying a §1519 offense must be where a document’s falsification happened— which here was in Seattle.

The only prohibited act in that statute is the falsification of a document. Once a person has committed that act (with the requisite intent), he need do nothing more to violate the law.

Contrary to the Ninth Circuit’s view, §1519’s special intent provision does not lead to a different result. This Court has never looked to a statute’s mens rea elements in considering venue. Nor would it make much sense to do so. Take the first (and more typical) of §1519’s mens rea requirements: that the falsification be undertaken “knowingly.” A knowing falsification occurs at the same place as an unknowing falsification—which is to say, at the place of the falsification. The mens rea element thus adds nothing to the conduct-focused analysis. The same is true of §1519’s demand that the falsification be done with the intent to obstruct an investigation. 

Section 1519 prohibits only one act: that of falsifying a document. Because the Government need show nothing else, a §1519 offense is relatively easy to prove. But with that ease comes one cost: Because the Government need show nothing else, its venue options are confined. The trial for falsifying a document must take place where the defendant falsified the document. Here that was in Seattle—meaning in venue terms, the Western District of Washington. The trial should not have occurred in the Northern District of California because no “conduct constituting the offense” happened in that location.  

6/3/26: Second Amendment case

In United States v. DeBorba, --- F.4th ---, No. 23-3304 (9th Cir. 2026), the Court affirmed João Ricardo DeBorba’s convictions, following a bench trial on stipulated facts, for unlawful possession of firearms and ammunition by a noncitizen illegally or unlawfully in the United States, 18 U.S.C. § 922(g)(5)(A); unlawful possession of firearms and ammunition by a person under a domestic violence restraining order, 18 U.S.C. § 922(g)(8); making false statements during purchase of firearms, 18 U.S.C. § 922(a)(6); making a false claim to U.S. citizenship, 18 U.S.C. § 911; and unlawful possession of a firearm silencer under the National Firearms Act (NFA), 26 U.S.C. §§ 5861(d), 5845(a)(7).

In affirming, the Court rejected a host of Second Amendment challenges: 

DeBorba levies challenges to Section 922(g)(5)’s prohibition on firearm possession by noncitizens, the materiality of his false statements and U.S. citizenship claim, Section 922(g)(5)’s prohibition on firearm possession by those subject to a domestic violence restraining order, and the NFA’s regulation of silencers. None are availing. We address each in turn.

Our recent decision in United States v. Vazquez-Ramirez controls DeBorba’s challenges to 18 U.S.C. § 922(g)(5). 163 F.4th 706 (9th Cir. 2026). We held in Vazquez-Ramirez that Section 922’s prohibition on the possession of firearms and ammunition by noncitizens “illegally or unlawfully in the United States,” 18 U.S.C. § 922(g)(5)(A), is “consistent with the nation’s historical tradition of firearm regulation” as required by the Second Amendment.

DeBorba’s materiality challenges to his convictions for making false statements on ATF gun purchase forms and making a false claim to citizenship on his Washington concealed carry application fail because his challenges to Section 922(g)(5) fail. DeBorba concedes that those challenges depend on a holding that the Second Amendment does not allow his disarmament based on citizenship or immigration status. That proposition is foreclosed by Vazquez-Ramirez.

DeBorba presents as-applied challenges to both prongs of Section 922(g)(8)(C). He argues that the restraining orders in his case lack analogous historical traditions of firearm regulation. In United States v. VanDyke, 157 F.4th 1082 (9th Cir. 2025), we drew upon the Supreme Court’s rejection of a 922(g)(8)(C)(i) challenge in Rahimi and rejected a challenge to 922(g)(8)(C)(ii). Together, Rahimi and VanDyke foreclose DeBorba’s arguments regarding Section 922(g)(8)(C)’s unconstitutionality, and he does not demonstrate that his circumstances are meaningfully different from those cases.

DeBorba argues the NFA’s regulation of silencers violates both the Second Amendment’s right to bear arms and the Fifth Amendment’s prohibition on vague criminal laws. Both challenges lack merit.

As we have previously explained, “optional accessories” to firearms—such as gun slings, scopes, and, importantly, silencers—fall outside of the Second Amendment’s plain text because they are “accoutrements” and not arms. Id. DeBorba’s challenge thus fails at step one of the Bruen analysis.

DeBorba’s challenge also cannot overcome the presumptive constitutionality of the NFA’s shall-issue licensing regime.

As the Fifth Circuit explained, there is “no reason to doubt” that the NFA’s licensing requirements serve to “ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’” We agree and so hold. 

DeBorba also argues that the NFA’s regulation of “any silencer,” 26 U.S.C. § 5845(a)(7)—defined as “any device for silencing, muffling, or diminishing the report of a portable firearm,” 18 U.S.C. § 921(a)(25)—is unconstitutionally vague. He invokes the Fifth Amendment’s protection against any “criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.

As applied, DeBorba’s vagueness challenge to the NFA plainly fails for two reasons. First, the stipulated facts, taken together, render DeBorba guilty of the charge under Section 5861(d) and foreclose his challenge. 

Second, DeBorba’s as-applied challenge falls short when one considers the device’s design. As the district court explained, the item was “a cylindrical device with no manufacturer marking and no serial number” in which “the front endcap of the device contained a hole to allow passage of a bullet, and the rear endcap also had a hole in its center that was internally threaded to facilitate attachment to a firearm barrel.” When the ATF attached DeBorba’s device to a portable firearm and fired the gun, the device “reduced sound reporting by at least twelve decibels.” Id. The NFA’s inclusion of any device “for silencing, muffling, or diminishing the report of a portable firearm,” 18 U.S.C. § 921(a)(25), provided “fair notice” to DeBorba that his device falls within the Act’s ambit. 

6/2/26: En banc civil forfeiture decision

In United States v. $1,106,775 in U.S. Currency, --- F.4th ---, No. 22-16499 (9th Cir. 2026) (en banc), the Court reversed the district court’s order striking Oak Porcelli’s claim for currency that was the subject of the government’s civil forfeiture action, and remanded for further proceedings.

When someone files a claim for property that is the subject of a civil forfeiture action, the government “may serve special interrogatories limited to the claimant’s identity and relationship to the defendant property without the court’s leave at any time after the claim is filed and before discovery is closed.” Fed. R. Civ. P. Supp. R. G(6). The district court in this case struck a claimant’s claim for money seized from a vehicle he was driving, reasoning that he had failed to provide sufficient interrogatory responses concerning his standing to seek the funds. We hold that the district court abused its discretion in issuing this case-ending sanction at the inception of the civil forfeiture action. We reverse and remand for further proceedings.

That Porcelli was required to respond to the Rule G(6) interrogatories does not mean that civil forfeiture claims like his—where the property was indisputably taken from him—should always be litigated through the vehicle of case-opening Rule G(6) discovery disputes. The Rules do not anticipate that all civil forfeiture litigation will be resolved through Rule G(6).

Yet, in this case, the civil forfeiture proceeding was over before it began, even though Porcelli’s interrogatory responses—which the government never rebutted—established his standing at this stage of the proceedings.

For this stage of the proceedings, some of the government’s Rule G(6) requests were also excessive. For example, Interrogatory 6 required “[a] detailed description of the circumstances of every transaction by which you acquired or obtained each interest in the property, including every name, address (residential and business), and telephone number (residential, cellular, and business) of each witness to such transaction.” And Interrogatory 7 called for Porcelli to “[d]escribe in detail every document evidencing, recording, facilitating, or otherwise relating to each transaction identified in response to Interrogatory 6.

Porcelli surely could be required to respond to these two interrogatories to some extent at an early stage in the case, and he eventually did so. But at least when sought at the outset of the civil forfeiture proceeding, the level of detail the government insisted on here in its motion for terminating sanctions went beyond what Rule G(6) envisions.

In this case, Porcelli came forward with a legally sufficient claim of standing and interrogatory responses that provided the government with a sufficient basis for conducting further investigation into his claimed ownership of the money. In these circumstances, and when Porcelli was claiming money that was indisputably seized from his possession, it was error for the district court to strike his claim when it did based on the alleged insufficiency of his Rule G(6) responses. 

5/28/26: SCOTUS decides two compassionate release cases

Today brings two SCOTUS decisions limiting the circumstances that qualify as “extraordinary and compelling" under 18 U. S. C. §3582(c)(1)(A)(i).

First, in Fernandez v. United States, 608 U.S. ---, No. 24-556 (2026), a divided Court held that "[t]he compassionate release provision is not a vehicle for attacking the validity of a conviction."

Petitioner Joe Fernandez argues that doubts about a conviction’s validity also qualify as “extraordinary and compelling” reasons for relief under the statute. We disagree. A prisoner who collaterally attacks the validity of his conviction must proceed through 28 U. S. C. §2255, not 18 U. S. C. §3582.

The heartland “extraordinary and compelling reasons” that might warrant an early release from prison—age, illness, a child left with no guardian—bear no resemblance to the grounds for relief under §2255. Fernandez cannot deploy §3582 to blunt what he perceives to be the sharp edges of §2255. 

Next, in Rutherford v. United States, 608 U.S. ---, No. 24-820 (2026), the Court considered "whether the sentencing disparity created by Congress’s nonretroactive change to §924(c)’s mandatory penalties can serve as an 'extraordinary and compelling reaso[n]' that “warrant[s]' a reduction. §3582(c)(1)(A)(i)."  The majority held that it cannot. 

The compassionate release provision empowers a district court to “reduce the term of imprisonment” if it finds, among other things, that “extraordinary and compelling reasons warrant such a reduction.” Ibid. The term “extraordinary” means “most unusual,” “far from common,” or “having little or no precedent.” Putting these definitions together, “extraordinary and compelling” reasons for compassionate release are those that are especially unusual and convincing. 

The disparity created by Congress’s amendment to §924(c) does not satisfy this definition. Far from “extraordinary,” nonretroactive amendments to criminal penalties are the norm.

We need not decide whether there are reasons beyond personal circumstances that could qualify as “extraordinary and compelling.” Until very recently, no one thought that nonretroactive sentencing amendments were among them.They are not. 

5/26/26: Fourth Amendment decision

In United States v. Johnson, --- F.4th ---, No. 24-6689 (9th Cir. 2026), the Court affirmed Duane Lee Johnsen’s conviction for receiving child pornography, in violation of 18 U.S.C. § 2252, and accessing and possessing child pornography, in violation of 18 U.S.C. § 2252A. 

Defendant Duane Lee Johnsen was arrested after law enforcement executed a search warrant for his home and discovered copious amounts of child pornography stored on his electronic devices. Johnsen was convicted under 18 U.S.C. § 2252 for receiving child pornography, as well as under 18 U.S.C. § 2252A for accessing and possessing child pornography. On appeal, he challenges the district court’s denial of three motions: (1) his motion to suppress evidence seized from his residence; (2) his motion to dismiss the indictment; and (3) his motion for judgment of acquittal. We affirm.

The warrant to search Johnsen’s property was issued based in part on evidence that Johnsen possessed files with hash values matching known child pornography. Johnsen contends that because officers had not downloaded and viewed any of the suspect files from his computer, it was improper for the magistrate judge to rely on the hash matches to find probable cause. We disagree. If we were to require visual confirmation of the contents of Johnsen’s files to establish probable cause, it would effectively demand certainty that he possessed child pornography, rather than a fair probability.

A hash match between a suspect’s files and known child pornography amply supports the reasonable inference that such material is present on the suspect’s devices, even if agents have not downloaded and viewed the suspect file. Hash matching is widely viewed as a reliable and scientifically sound means of identifying duplicates of a file. 

Though a hash match does not guarantee that the file on the suspect’s device contains child pornography, the standard for probable cause is a “fair probability,” not absolute certainty.

Moreover, the hash matches were bolstered by substantial additional evidence that independently supported the magistrate judge’s finding of probable cause. Notably, the warrant application listed the filenames of files Johnsen’s eMule account was offering to share, all of which were strongly indicative of explicit sexual content involving minors. “[F]ilenames themselves, apart from their content” can give the magistrate judge “probable cause to issue a search warrant.” 

This cumulative evidence was more than sufficient to support a probable cause finding that Johnsen possessed child pornography. 

Johnsen’s remaining two arguments—that law enforcement’s review of his public eMule files violated his Fourth Amendment rights as well as the Wiretap Act—are both squarely foreclosed by our precedents. 

Individuals do not have a reasonable expectation of privacy in electronic files they offer for public download, and accessing files made available on a file-sharing platform does not constitute a search. 

Law enforcement’s pre-warrant review of Johnsen’s files was limited to the materials that Johnsen made publicly available for download on the eMule filesharing platform. Their warrantless access to those public files did not violate Johnsen’s Fourth Amendment rights.

For this same reason, Johnsen’s argument that the “presearch” violated the Wiretap Act fails. Standing to challenge wiretaps is limited “to persons whose Fourth Amendment rights were violated by the interception.”

Furthermore, Johnsen’s saved files do not fall within the scope of the Wiretap Act. The act bars the unauthorized, intentional “interception” of “electronic communications.” 18 U.S.C. § 2511. “[T]o be ‘intercepted’ in violation of the Wiretap Act, [a communication] must be acquired during transmission, not while it is in electronic storage.”

Johnsen [also] argues that the district court erred in denying his motion to dismiss the indictment because he was prejudiced when officers forensically analyzed his devices without his counsel present, and because he was wrongfully targeted for selective prosecution due to his prior conviction for offenses against children.

Johnsen claims that his right to counsel was violated and he suffered prejudice when agents did not honor his request for an attorney to be present during the forensic analysis of his devices. But the right to counsel extends only to “critical stages” of the prosecution, and the forensic analysis of Johnsen’s devices was not a “critical stage.”

Because the forensic analysis of Johnsen’s devices was not a critical stage of the prosecution, Johnsen had no right to an attorney’s presence during it.

Johnsen claims that the Government was improperly motivated to prosecute him due to his prior convictions for crimes against children and that it pursued him while ignoring other similarly situated individuals. 

Johnsen shows neither similarly situated others, nor impermissible prosecutorial motive. He offers nothing more than his asserted belief that the Government has not pursued or prosecuted other eMule users who were involved in either sending or receiving his files. Without more, Johnsen cannot establish that there are similarly situated individuals whom the Government chose to ignore. He also fails to identify an impermissible motive, as “sex offenders do not comprise a suspect class.” 

5/20/26: Case on motions motion under 18 U.S.C. § 3582(c)(2)

In United States v. Kheyre, --- F.4th ---, No. 24-7529 (9th Cir. 2026), the Court affirmed the district court’s denial of Abdirahman Kheyre’s motion under 18 U.S.C. § 3582(c)(2) for a sentence reduction based on retroactive Sentencing Guidelines Amendment 821, which limited the impact of “status points” on criminal history.  The essential quotes from the decision follow: 

In 2023, Abdirahman Kheyre was sentenced to 180 months in prison. After the United States Sentencing Commission retroactively amended the Guidelines to reduce the impact of criminal history status points, Kheyre moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). The district court denied his motion because Supreme Court precedent holds that the Commission’s policy statement regarding § 3582(c)(2) proceedings is binding, and that policy statement prohibited a reduction in Kheyre’s circumstances.

On appeal, he contends (1) that Congress violated the nondelegation doctrine, the separation of powers, or both by making the Commission’s policy statements binding on courts in § 3582(c)(2) proceedings, (2) that the district court erred by not including a departure when calculating his amended guideline range[.]

The Commission has issued one policy statement applicable to § 3582(c)(2) proceedings: USSG § 1B1.10.4 Under § 1B1.10(a)(1), a defendant is eligible for a reduction only if a retroactive amendment lowered “the guideline range applicable to that defendant.” To determine if that occurred, the court must calculate the guideline range that would have applied had the amendment “been in effect at the time the defendant was sentenced . . . leav[ing] all other guideline application decisions unaffected.” § 1B1.10(b)(1). 

But even if the amendment reduced the applicable guideline range, the defendant still may not be eligible for a sentence reduction. Subsection (b)(2) bars courts from reducing the prison sentence “to a term that is less than the minimum of the amended guideline range,” unless the defendant received a sentence below the original range based on substantial assistance to the government. This means that a defendant who did not provide substantial assistance is not eligible for a reduction if his original prison sentence is below his amended guideline range. 

In 2010, the Supreme Court held that § 1B1.10 remained binding even after United States v. Booker, 543 U.S. 220 (2005), rendered the Guidelines advisory in sentencing proceedings. 

Thus, § 1B1.10 remained binding on courts through § 3582(c)(2)’s command that reductions be “consistent with applicable policy statements issued by the Sentencing Commission.”

Kheyre argues that Congress violated the nondelegation doctrine because the authorizing statutes—18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 994(o)—lack an “intelligible principle” allowing the Commission to limit judicial sentencing discretion. This challenge fails because the Supreme Court has already held that the guidance provided in 28 U.S.C. § 994 sufficiently supports the delegation of authority to the Commission to formulate the Guidelines . . . . the Court has already decided that Congress provided an intelligible principle sufficient to support delegating authority to the Commission to impose mandatory limits on judicial sentencing discretion. That is fatal to Kheyre’s nondelegation argument.

Kheyre next argues that the district court wrongly relied on the commentary to § 1B1.10 to find it had no authority to reduce his sentence.

When it ruled on Kheyre’s sentence reduction motion, the district court did not factor the “two-level” downward departure from his original sentencing into its calculation. Instead, the district court calculated the amended guideline range based on an offense level of 35 and criminal history category III, which resulted in an amended range of 210–262 months. If it had included the “two-level” downward departure from Kheyre’s original sentencing, his amended guideline range would have been 168–210 months. Given his 180-month prison sentence, that would make him eligible for a reduction of up to 12 months.

[A] departure is a sentence imposed outside of the applicable guideline range, which is determined based on the offense level and criminal history category calculated in accordance with Chapters Two through Four of the Guidelines Manual. Accord § 1B1.1 (directing courts to calculate the applicable guideline range and determine the associated sentencing requirements and options before considering if a departure is warranted).

Applying Kisor, we hold that § 1B1.10 unambiguously does not include departures when calculating the amended guideline range. Thus, the district court did not err in calculating Kheyre’s amended guideline range without reference to the departure awarded at his original sentencing. We hold that because Kheyre’s 180-month sentence was below his amended guideline range, he was ineligible for a reduction. See § 1B1.10(b)(2)(A). As Kheyre was not eligible for a reduction, we need not reach his challenge to the district court’s alternative holding.

We conclude that: (1) Congress violated neither the nondelegation doctrine nor the separation of powers by making the Commission’s policy statements binding on courts in § 3582(c)(2) proceedings; and (2) based on § 1B1.10’s text without reference to Application Note 1(A), courts do not include departures when calculating the amended guideline range in § 3582(c)(2) proceedings. The district court thus properly found Kheyre was not eligible for a reduction in sentence.

5/12/26: Case on juror bias

In United States v. Sanchez, --- F.4th ---, No. 23-2533 (9th Cir. 2026), a divided panel reversed the district court’s denial of Andres Sanchez’s motion for a new trial, and remanded in a case in which a jury convicted Sanchez on six counts of preparing and presenting false and fraudulent tax returns.

Defendant-Appellant Andres Sanchez appeals from his conviction on six counts of preparing and presenting false and fraudulent tax returns in violation of 26 U.S.C. § 7206(2). Sanchez argues that the presence of a racially biased juror during deliberations violated his Sixth Amendment right to trial by an impartial jury. It is undisputed that a racially biased juror was present during most of the jury deliberations and that this juror made racially biased comments during deliberations—but the district court excused the biased juror and accepted the verdict from an 11-member jury. 

The district court denied Sanchez’s motion for mistrial before the verdict and his motion for new trial after the verdict. We conclude that the district court applied the incorrect legal standard when determining whether Sanchez was prejudiced by the racially biased juror’s presence. Under the correct standard, there is a strong presumption of prejudice, and applying that standard, the Government has not met its heavy burden to prove harmlessness. Accordingly, we reverse the denial of Sanchez’s motion for a new trial, and we remand for a new trial. 

The Constitution requires “a jury capable and willing to decide the case solely on the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217 (1982). The Sixth Amendment guarantees criminal defendants the right to a trial “by an impartial jury.” The bias or prejudice of even a single juror” violates that right. “Actual bias is, in essence, . . . the existence of a state of mind that leads to an inference that the person will not act with entire impartiality.”

The key facts underlying Sanchez’s Sixth Amendment claim are essentially undisputed. Sanchez contends, and the Government does not meaningfully dispute, that a racially biased juror, Juror 5, was present during virtually all the jury’s deliberations—but excused before the district court accepted the jury’s verdict. Further, the Government does not challenge the district court’s finding that Juror 5 made a statement during jury deliberations to the effect that “people from Mexico come to the United States to screw over or get over on Americans.” Nor does the Government challenge the district court’s finding that Juror 5 could not “be fair and impartial.”

In sum, we conclude that the district court erred in applying Sarkisian’s version of the plain error standard when assessing whether Sanchez was prejudiced by the presence of a biased juror. Sarkisian is neither binding nor persuasive authority on this issue because it expressly declined to decide whether the Remmer presumption-of-prejudice standard should apply; its only reason for questioning Remmer’s applicability contravened our precedent; and it provided no reasoned explanation for applying the plain error standard instead.

“[A] juror’s good faith belief in his own impartiality is not dispositive.”  “The effect of extrinsic prejudicial evidence on a juror’s deliberation may be substantial even though it is not perceived by the juror and ‘a juror’s good faith cannot counter this effect.’”

When a juror is racially biased or makes a racially biased statement, but that juror is excused before the trial court accepts a verdict, the Remmer presumption of prejudice applies, and the Government bears the heavy burden of rebutting that presumption and proving that the racially biased juror’s presence was harmless to the defendant. Additionally, when a biased juror has participated in deliberations, such participation is additional evidence of prejudice that the Government must overcome. In this case, a racially biased juror participated in all but the last thirteen minutes of the jury’s deliberations, which spanned many hours across two days. Because the Government has not met its burden to show Juror 5’s presence and racially biased statements were harmless, Sanchez is entitled to a new trial. Accordingly, we REVERSE the district court’s denial of Sanchez’s motion for a new trial, and we REMAND for a new trial. 

5/8/26: Case on jury coercion and kidnapping resulting in death in violation of 18 U.S.C. § 1201(a)(1)

In United States v. Chapman, --- F.4th ---, No. 24-4939 (9th Cir. 2026), the Court vacated John Chapman’s conviction for kidnapping resulting in death in violation of 18 U.S.C. § 1201(a)(1) and remanded for a new trial.

First, the Court affirmed the district court’s denial of Chapman’s post-verdict motion for acquittal, holding that (1) the “holding” element of the federal kidnapping statute does not require a use of physical force, and an individual may be “held” against their will through a means of deception in an inveiglement case; and (2) there was sufficient evidence for a jury to conclude that Chapman “held” the victim by nonphysical forms of “holding,” including deception.

The Court also affirmed the district court’s denial of Chapman's motion to suppress his confession, holding that he knowingly and intelligently waived his Miranda rights and that his confession was voluntary.

The Court, however, agreed with the parties that the district court improperly coerced the verdict. 

[T]he district court’s interactions with the jury were undoubtedly coercive. First, the district court did not disclose to the parties the jury’s two substantive notes received by the district court on the first day of deliberations. These notes contained the numerical breakdown of the jurors’ votes, a fact that was not told to the parties.

We have previously held that giving an Allen charge while knowing the numerical breakdown of the jury’s votes is “per se coercive and requires reversal.”

The district court knew the breakdown of jurors’ votes from the jury notes it received on the first day, yet the district court did not disclose these substantive notes to the parties before the district court gave its Allen charge. The notes were not disclosed until after the verdict was reached. This was impermissible jury coercion.

Second, the district court’s comments when canvassing Juror Number 11 were coercive under the “totality of the circumstances.” “[T]he form of the instruction” was coercive because the district court explicitly told Juror Number 11 to “surrender that opinion,” that the evidence on which Juror Number 11 was relying was “irrelevant,” and that the evidence Juror Number 11 was considering “doesn’t matter.” We have previously held that directing a jury to focus on certain portions of evidence is coercive, just as is disparaging or minimizing evidence that a juror says they are relying upon.

“[T]he time the jury deliberated after receiving the charge” also favors a finding of coercion.  After being deadlocked for two days during deliberations, the jury spent only thirty-seven minutes deliberating after the district court’s charge before swiftly returning with a unanimous guilty verdict. We have repeatedly held that a short time frame for deliberations after an Allen charge indicates coercion.  Here, deliberation for only thirty-seven minutes after the Allen charge was given fits comfortably within the range of durations considered coercive in our precedent

4/21/26: Helpful case on juror bias

In United States v. Bolandian, --- F.4th ---, No. 25-355 (9th Cir. 2026), the Court vacated Shahriyar Bolandian’s insider-trading conviction and remanded for a new trial in a case in which Bolandian contended that the district court erred by refusing to dismiss a juror for bias after the juror told the judge he was not sure he could be impartial.

Defense counsel agreed that the juror could continue to serve, so the government argued waiver.  The Ninth Circuit rejected that argument, finding forfeiture instead and thus applying plain-error review. 

The government argues that Bolandian’s counsel’s agreement with Juror No. 6’s continued service waived Bolandian’s ability to challenge Juror No. 6 for bias on appeal. Bolandian argues that his claim is reviewable, at minimum, under the plain error standard. The Supreme Court has explained that “[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.”

While forfeited claims are reviewed for plain error, waiver “extinguish[es]” the possibility of an “error” altogether. Olano, 507 U.S. at 733. Thus, “[a]ttention to the distinction between forfeiture and waiver” is of crucial importance, given that it “results in a distinction between plain error appellate review and no appellate review.”  “Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.”

We write in this case to explain that the district court’s independent duty to investigate juror bias that emerges during trial is a prerequisite to any knowing waiver of a juror bias claim. The district court’s duty to investigate cannot itself be waived. Because no such investigation took place here, we need not resolve the questions of whether a juror bias claim may be waived by defense counsel, following a proper investigation.

“A court confronted with a colorable claim of juror bias must undertake an investigation of the relevant facts and circumstances.”  

[W]e hold that, at minimum, defense counsel may not waive the district court’s duty to conduct a reasonable inquiry into juror bias that emerges during trial. Because such an investigation would be a prerequisite to a knowing waiver of a juror bias claim, no waiver occurred here.

Proceeding to the merits, we hold that Bolandian is entitled to a new trial. Juror No. 6 came forward to express bias, and the district court impermissibly delegated its responsibility to investigate the juror for bias to the juror himself, who served for the remainder of trial.

4/15/26: California rape under P.C. § 261(a)(2) is an aggravated felony

In United States v. Gonzalez-Reyes, --- F.4th ---, No. 23-3532 (9th Cir. 2026), a divided panel affirmed the district court’s denial of Higinio Gonzalez-Reyes’ motion to dismiss a criminal charge under 8 U.S.C. § 1326, which bars previously removed aliens from reentering the United States.  

This is a categorical approach case out of the SDCA. 

Here is how the majority started the opinion: 

Angry that his girlfriend might end their relationship, Higinio Gonzalez-Reyes strangled and raped her in view of her two young children. A jury convicted him of rape, false imprisonment by menace or violence, and domestic battery with corporal injury under the California Penal Code. After serving his prison term, he was removed to Mexico under an immigration statutory provision that allows expedited removals of aggravated felons unlawfully residing in the United States. Within three days of his removal, Gonzales-Reyes made his way back to the United States but was arrested near the border. He was criminally charged under 8 U.S.C. § 1326, which bars previously removed aliens from reentering the United States. 

Gonzalez-Reyes now collaterally challenges his criminal case, contending that his earlier expedited removal was invalid. He claims that his state conviction for rape—which was the predicate act for his removal—is not an aggravated felony under the federal immigration statute. And because he was allegedly wrongfully removed, Gonzales-Reyes argues that he cannot be charged with criminal reentry. He is wrong. He was rightly removed from our country: California’s statutory definition of rape is a categorical match with the generic federal definition of rape, and thus his state conviction qualifies as an aggravated felony.

The majority continued:

We hold that California Penal Code § 261(a)(2)—which appears to recognize rape perpetrated through threats of nonphysical force—is a categorical match with the generic federal definition of rape. And that means Gonzales-Reyes’ state rape conviction is a valid predicate offense to qualify him as an aggravated felon under federal law.

By 1996, the definition of rape had become broader across multiple jurisdictions to encompass acts committed through nonphysical force or threats of non-physical coercion. 

The dissent countered: 

To be sure, the facts underlying Gonzalez-Reyes’ conviction under Cal. Penal Code § 261(a)(2) are deplorable. Nonetheless, Cal. Penal Code § 261(a)(2) is not a categorical match to its federal analogue, rendering Gonzalez-Reyes’ predicate removal order “fundamentally unfair” under Section 1326(d)(3). Gonzalez-Reyes also satisfies § 1326(d)(1) and (d)(2)’s procedural requirements. Accordingly, I would reverse the district court’s denial of Gonzalez-Reyes’ motion to dismiss his indictment and respectfully dissent.

In sum, the majority erred in holding that the generic federal definition of rape in 8 U.S.C. § 1101(a)(43)(A) includes rape by non-physical threats and that Gonzalez-Reyes’ conviction under Cal. Penal Code § 261(a)(2) is a categorical match. 6 As a result, Gonzalez-Reyes was removed on illegitimate grounds, which is enough to demonstrate prejudice—and thus, fundamental unfairness— under Section 1326(d)(3).

4/13/26: Case on attempted online enticement

In United States v. Williams, --- F.4th ---, No. 24-5792 (9th Cir. 2026), the Court affirmed Koby Don Williams’s conviction for attempted online enticement of a minor in violation of 18 U.S.C. § 2422(b), vacated his sentence, and remanded for resentencing.

Williams was a United States Immigration and Customs Enforcement officer who claimed, after arrest, that he was conducting a human trafficking investigation.   On appeal, he challenged the sufficiency of the evidence supporting his conviction and argued that the government failed to preserve and produce material exculpatory evidence. Williams also maintained, and the government agreed, that the district court erroneously applied an obstruction of justice sentence enhancement pursuant to U.S.S.G. § 3C.1.1 without making the required specific findings of falsity, materiality, and willfulness.

Williams challenges the sufficiency of the evidence to support his conviction because, he argues, Section 2422(b) required the government to show that he attempted to “transform or overcome the will of a minor.”

Section 2422(b)’s mens rea “is subjective—it is what is in the mind of the defendant.” We have repeatedly held that “[t]he victim’s willingness to engage in sexual activity is irrelevant.”

Reviewing this claim in the light most favorable to the United States, we conclude that a “rational trier of fact could have found the essential elements of the crime [of attempted enticement] beyond a reasonable doubt,” including the contested element of knowing persuasion, inducement, enticement, or coercion. The evidence is compelling. Pretending to be “Rebecca,” Martinez “told [Williams her] age.” See Meek, 366 F.3d at 720. Williams, in turn, “used money as a negotiating tool to persuade” a person who, again, repeatedly told him that she was underage, to have sex with him. See Eller, 57 F.4th at 1120–21. His negotiation extended to bargaining with “Rebecca” about the cost and kinds of sex acts that the illicit transaction would include. 

A reasonable jury could have found that these actions, taken together, constitute persuasion, inducement, enticement, or coercion. 

Williams’s conduct more than crossed [the] line. His entreaties advanced the criminal purpose of enticement of a minor, and his conduct verified the existence of that purpose. See Goetzke, 494 F.3d at 1235–36. Williams “initiate[d] conversation with” someone representing herself as a minor and “propose[d] a rendezvous to perform” certain sexual acts, which he attended. Id. at 1237. Following up on his discussion of payments, he made a substantial cash withdrawal from a bank and brought the money to the meeting. See Eller, 57 F.4th at 1120–21. He traveled two hours to Othello, Washington, to meet with “Rebecca.” See Meek, 366 F.3d at 720 (“extensive sexual dialog, . . . repeated sexual references, . . . [and] travel to meet the minor” can constitute a substantial step). When he was arrested, Williams had $4,075 in cash, two large bottles of vodka, and generic Viagra in his car. The jury, as a reasonable factfinder, could—and did—conclude that Williams took a substantial step toward completing the offense. 

The four verbs in Section 2422(b), with their overlapping but distinct meanings, reflect Congress’s effort to capture a range of influencing conduct, which is criminal whether the minor was willing or resistant. Whatever intuitive appeal Williams’s interpretation may have in other circumstances, it finds no foothold in the language of Section 2422(b). The jury therefore only needed to find that Williams knowingly attempted to persuade, induce, entice, or coerce “Rebecca” to engage in sexual acts with him, and not that “Rebecca” had any particular mental state, which Williams transformed or overcame.

Williams contends for the first time on appeal that the government’s failure to produce the “missing published decoy advertisement” denied him his right to present a defense because that advertisement was exculpatory and material under Brady and Trombetta. Williams never states whether the “missing published decoy advertisement” is the Warning in Moses Post or the Yours or Mine Post. At oral argument, he stated that he was referring to both. We identify no viable Brady claim regarding either post.

The government agrees with Williams that the district court committed reversible sentencing error because it did not make explicit findings that his testimony was false, material, and willful. The alleged perjury concerns Williams’s assertions that he did not intend to engage in sexual acts with a minor, that he saw the Yours or Mine Post, which included the law enforcement number also listed in the Warning in Moses Post, and that he never believed “Rebecca” was a minor.

Perjury becomes an obstruction of justice when “(1) the defendant gave false testimony, (2) on a material matter, (3) with willful intent.” United States v. Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014) (quoting United States v. Garro, 517 F.3d 1163, 1171 (9th Cir. 2008)). In perjury cases like this one, “the express requirement for a finding of ‘willful intent’ means an intent to obstruct justice by lying under oath.” United States v. Ho-Romero, 167 F.4th 1037, 1046 (9th Cir. 2026). The Supreme Court has instructed that “if a defendant objects to a sentence enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice.” United States v. Dunnigan, 507 U.S. 87, 95 (1993). In the absence of those findings, Williams’s sentence must be vacated.