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.

4/7/26: Jet ski case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2/24/26: Very helpful 1028A decision

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

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

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

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

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

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

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

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

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

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

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

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