9/16/26: Case on U.S.S.G. § 2G2.2(b)(5)

In United States v. Mendonsa, --- F.4th ---, No. 25-1517 (9th Cir. 2026), the Court affirmed Louis Mendonsa’s sentence for possessing and distributing child pornography in a case in which the district court applied the five-level sentencing enhancement in U.S.S.G. § 2G2.2(b)(5) for defendants who “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.”

Defendant Louis Mendonsa appeals his 292-month sentence for possessing and distributing child pornography. The district court applied the five-level sentencing enhancement in Section 2G2.2(b)(5) of the United States Sentencing Guidelines for defendants who “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” Consistent with the Guidelines commentary, the district court interpreted the pattern enhancement to encompass Mendonsa’s prior sex abuse convictions that were over 30 years old. 

Mendonsa contends that the pattern enhancement unambiguously applies only to conduct related to the offense of conviction, and that under Kisor v. Wilkie, 588 U.S. 558 (2019), the district court’s deference to the Guidelines commentary was inappropriate. Alternatively, he argues that even if his prior convictions may be considered for the pattern enhancement, the district court erred under the categorical approach by considering the underlying factual record from his state convictions to determine that the enhancement applied. 

We hold that the pattern enhancement is ambiguous and deference to the Guidelines commentary is appropriate. Moreover, the categorical approach does not apply because the enhancement focuses on a defendant’s conduct rather than prior convictions, and the district court neither clearly erred in finding the enhancement satisfied nor abused its discretion in considering hearsay evidence concerning Mendonsa’s state convictions.

Here, although the commentary’s definition of sexual abuse or exploitation references specific federal provisions, it applies to the “conduct described in” those statutes. U.S.S.G. § 2G2.2 cmt. n.1. The definition of a “pattern of activity” also expressly extends to “instances” of sexual abuse regardless of whether they “resulted in a conviction.” Id. The enhancement thus turns on whether the defendant engaged in qualifying conduct, not whether a prior conviction categorically qualifies. Accordingly, the categorical approach does not apply to Mendonsa’s § 288(a) convictions.

We hold that § 2G2.2(b)(5) is ambiguous as to whether the pattern enhancement reaches conduct outside the offense of conviction and that the Commission’s interpretation permitting consideration of such conduct is reasonable and entitled to deference. Because the district court properly applied the enhancement, we affirm Mendonsa’s sentence. 

9/14/26: Two decisions today

First, in United States v. Tovar-Duran, --- F.4th ---, No. 24-2328 (9th Cir. 2026), the Court reversed a district judge’s order affirming Jaime Tovar-Duran’s conviction, following a bench trial before a magistrate judge, for improper entry into the United States as a non-citizen; conditionally vacated the conviction; and remanded for further proceedings.

Mr. Tovar-Duran argues that the magistrate judge improperly determined that the government met its obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Federal Rule of Criminal Procedure 16. He also argues that the magistrate judge improperly admitted hearsay statements included in warrants of removal and written warnings to prove Mr. Tovar-Duran’s non-citizenship. We agree. 

We hold that when a defendant shows that the government may be in possession of undisclosed Brady and Rule 16 evidence and requests further discovery, courts must require the government to review evidence in its possession and disclose the Brady and Rule 16 material. We also clarify that all removal documents are not per se admissible as public records. Because, like here, some removal documents contain multiple levels of hearsay, courts must examine whether the specific statements within the documents are admissible.

The magistrate judge abused her discretion by denying Mr. Tovar-Duran’s request for additional evidence of the witnesses’ membership and activity in the Facebook group because the government was obligated to disclose the evidence under Brady and Rule 16. And because the government failed to disclose this evidence, we cannot yet determine whether its failure to disclose it prejudiced Mr. Tovar-Duran. We thus must vacate his conviction and remand for further proceedings on “whether the government’s documents in fact contain, or would have led to, information that might have altered the verdict.”

Mr. Tovar-Duran argues that Brady and Rule 16 required the government to disclose which witnesses were involved in the “I’m 10-15” group before trial and to provide documentation of their membership and activity in the group. We agree.

To start, evidence of the witnesses’ involvement in the Facebook group is Brady material because Mr. Tovar-Duran could have used it to impeach the witnesses’ credibility. In light of the derogatory material posted in the group, the witnesses’ activity on the page could be strong evidence of bias against noncitizens. Similarly, the evidence falls under Rule 16(a)(1)(E)(i), which requires the government to turn over documents “material to preparing the defense.” Materiality is a low threshold, and any document that “would have helped” the defendant prepare his defense satisfies the standard. United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013). Here, at a minimum, evidence of the witnesses’ involvement in the Facebook group would have helped Mr. Tovar-Duran “impeach the . . . agent at trial.” Doe, 705 F.3d at 1151. 

The government argues that the magistrate judge did not abuse her discretion by denying the discovery request because the “prosecution team was not aware of and had no additional information about the agents’ ‘10-15’ activity in its possession.” But Mr. Tovar-Duran pointed to “facts which would tend to show that the Government is in possession of information helpful to the defense.” See Doe, 705 F.3d at 1150 (citation modified). For example, the government originally represented that none of its witnesses were in the group and—for an unexplained reason—later confirmed that two witnesses were in the group. The government’s contradictory disclosures alone suggest that it is in possession of evidence about the witnesses’ involvement in the Facebook page and, thus, “helpful to the defense.”

Without knowing whether and to what extent additional evidence of the witnesses’ involvement in the Facebook group exists, we cannot determine whether such evidence would have undermined the witnesses’ credibility and impeached their testimony. We thus have no way to determine whether the evidence “might have altered the verdict.”

At bottom, the magistrate judge “committed a clear error of judgment” by proceeding to trial before ordering the government to review the evidence in its “possession, custody, or control,” and produce any additional Rule 16 evidence. Doe, 705 F.3d at 1150 (citation modified). This was an abuse of discretion. And the government’s failure to produce the evidence likewise constituted a Brady violation. We thus reverse the district court, conditionally vacate Mr. Tovar-Duran’s conviction, and remand for further proceedings.

We are now left with Mr. Tovar-Duran’s hearsay claims. Mr. Tovar-Duran argues that the magistrate judge abused her discretion by admitting the prior warrants of removal and written warnings to prove Mr. Tovar-Duran’s citizenship status under the public records exception to hearsay. 

When a public record contains additional layers of hearsay statements, each statement must fall under a hearsay exception to be admissible. Fed. R. Evid. 805. We have explained that the “mere fact that a document qualifies as a public record . . . does not ipso facto overcome the hearsay objection unless the document relates to an event to which the author could himself testify.” United States v. Chu Kong Yin, 935 F.2d 990, 999 (9th Cir. 1991) (citation modified). This is because “the public documents exception to the hearsay rule is only the substitute for the appearance of the public official who made the record.” Id. (citation modified). 

Under a straightforward application of these rules, the removal documents contain inadmissible hearsay statements. 

Here, the government relied on these documents, which contain multiple layers of hearsay, to make that showing. Each document references a prior removal order issued by “a designated official” or a finding that Mr. Tovar-Duran “reentered the United States illegally.” And the magistrate judge relied on the truth of the statements—that Mr. TovarDuran was subject to a final order of removal by a designated official or had been found to have reentered the United States illegally—to conclude that Mr. Tovar-Duran is not a United States citizen. But the government failed to show that any of the forms were prepared by someone with firsthand knowledge of the removal order or finding of illegal reentry. Cf. Fed. R. Evid. 805. The government thus relied on hearsay statements to prove alienage without providing any exception under which they are admissible.

In sum, the magistrate judge did not examine the admissibility of the specific statements pertaining to Mr. Tovar-Duran’s citizenship status and instead generally concluded that the warrants of removal and written warnings were admissible. This was an abuse of discretion.

This error was not harmless.  It is more probable than not that admitting the removal documents materially affected the verdict. Had these statements been excluded as hearsay, the record would have contained minimal evidence of Mr. Tovar-Duran’s citizenship status, given that at least two of the witnesses’ testimony may be tainted by Brady and Rule 16 violations.  

Next, in United States v. Troiano, --- F.4th ---, No. 24-6621 (9th Cir. 2026), the Court affirmed the district court’s denial of James Troiano’s motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).

Defendant James Troiano appeals the district court’s denial of his motion for “compassionate release” under 18 U.S.C. § 3582(c)(1)(A)(i). He argues that, because of the combined effect of multiple nonretroactive changes to the Sentencing Guidelines enacted after he was sentenced, he is serving “an unusually long sentence” that is “unreasonably disproportionate” to the sentence he would receive if sentenced today, and that this disparity is an “extraordinary and compelling reason” warranting a sentence reduction and attendant compassionate release.

We conclude that the Commission acted within its statutory authority and that the policy statement is valid. Troiano also argues that, even if the policy statement validly precludes consideration of a single nonretroactive amendment to the Guidelines, it does not prohibit courts from considering the combined effect of multiple nonretroactive amendments. We conclude that the policy statement bars consideration of any nonretroactive amendments, alone or in combination. Therefore, we affirm

In sum, we conclude that the Commission may, within the scope of its statutory authority under § 994(t), exclude a nonretroactive Guidelines amendment from the definition of “extraordinary and compelling reasons for sentence reduction.” Therefore, subsections (b)(6) and (c) of the § 1B1.13 Policy Statement validly bar district courts from considering nonretroactive changes to the Sentencing Guidelines in deciding whether there are “extraordinary and compelling reasons for [a] sentence reduction.” 28 U.S.C. § 994(t). 

If the Commission intended to bar consideration of a single nonretroactive amendment to the Guidelines but allow consideration of the combined effect of multiple nonretroactive amendments, the Commission likely would have used more specific language to make that clear. We therefore conclude that the Policy Statement prohibits consideration of the combined effect of multiple nonretroactive amendments to the Guidelines.

We conclude that subsections (b)(6) and (c) of the § 1B1.13 Policy Statement validly prevent district courts from considering nonretroactive changes to the Sentencing Guidelines in deciding whether there are “extraordinary and compelling reasons for [a] sentence reduction,” 28 U.S.C. § 994(t), and that restriction is binding on district courts considering motions for compassionate release. We also conclude that the combined effect of multiple nonretroactive amendments to the Sentencing Guidelines is not an extraordinary and compelling reason for compassionate release under that Policy Statement. Accordingly, we affirm the district court’s denial of Troiano’s motion for compassionate release on that ground. 

9/8/26: Case on murder-for-hire under § 1958

In United States v. Gessen, --- F.4th ---, No. 24-2979 (9th Cir. 2026), the Court affirmed Allen Gessen’s conviction for murder-for-hire in violation of 18 U.S.C. § 1958.

In the light most favorable to the government, the evidence suggested that Gessen agreed to pay $50,000 to a broker, who agreed to arrange to kill Priscilla Chigariro, the mother of Gessen’s children. However, the supposed broker was actually undercover FBI agent David Rizzo, who posed as a member of an organized crime syndicate.

Gessen’s proposed a jury "instruction aligned with his defense theory that murder-for-hire cannot exist between a real solicitor and a fictional intermediary, like an undercover FBI agent. But the district court correctly rejected the instruction because it is contrary to the requirements of § 1958." 

We start with the text of § 1958. As relevant here, § 1958 requires that the defendant act “with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value.” 18 U.S.C. § 1958(a). The statute says nothing about the intent of the other party or parties to the proposed murder transaction. Thus, Gessen’s argument is contrary to the explicit requirements of the statute and seeks to add an element that is not contained in the statute.

Gessen asked the district court to instruct the jury that he could not be convicted without evidence of a “quid pro quo agreement.” His proposed instruction provided that “the defendant must have reached an agreement with a person who clearly understood that they themself would commit a murder in exchange for defendant’s promise to pay or payment of something of pecuniary value.” But an actual agreement is not required unless conspiracy is charged. Because Gessen’s requested instruction is unsupported by law, the district court did not err in rejecting it.

Gessen also challenged the sufficiency of the evidence.  The Court held, "[f]rom the recorded conversations between Gessen and Rizzo, which the government played at trial, a rational jury could have concluded that Gessen intended to kill Chigariro—not have her deported."

Sufficient evidence also supports the jury’s finding that Gessen intended Chigariro’s murder to be committed in exchange for something of pecuniary value. The jury heard that, before the second meeting, Rizzo asked Gessen to bring “half the amount” of $50,000 for their “project.” Then, at the meeting itself, Gessen gave Rizzo a gold coin worth $2,000 and promised to wire the remainder to a business account in San Francisco. And after the meeting, Gessen wired about $23,000 to the FBI’s undercover bank account. A rational jury could thus conclude that Gessen intended to pay $50,000 in exchange for Chigariro’s murder.

Gessen finally contends that venue was improper in the Northern District of California and that the district court erred in not giving his requested venue instruction. 

[W]e conclude that murder-for-hire may be charged as a continuing offense.

Just as a kidnapping consists of “distinct parts” in “different localities” when a perpetrator moves their victim across state lines, so too does a murder-for-hire if the offender, for example, uses interstate-commerce facilities (with the requisite intent) on more than one occasion. Similarly, the victim of a murder-for-hire is not safe until the plan is foiled or the culprits arrested. So until that point, each act of travel or use of interstate commerce facilities in furtherance of the plot continues the criminal offense. Put another way, the offense “does not terminate merely because all of the elements are met.”

In sum, murder-for-hire may be charged as a continuing offense. And the grand jury so charged Gessen. Thus, “venue lies in any district touched by the crime before the crime is completed.”

Gessen recognizes that “the charged offense ‘was begun in one district and completed in another, or committed in more than one district.’” (quoting 18 U.S.C. § 3237(a)). But he contends that he could not be tried in the Northern District of California because his offense was complete before any acts occurred in the district.

The district court made no instructional error as to venue. So we will not disturb Gessen’s conviction on this ground.

Gessen also presses that the government presented insufficient evidence for the jury to find proper venue in the Northern District of California.

Gessen’s use of interstate commerce facilities to wire money to San Francisco, in furtherance of the murder-for-hire plot, subjects him to prosecution where that money was received: San Francisco. Because San Francisco is within the Northern District of California, venue was proper in the Northern District.

9/3/26: Good case on the right not to testify.

In United States v. Valencia, --- F.4th ---, No. 24-3820 (9th Cir. 2026), the Court reversed Eduardo Valencia’s convictions for Hobbs Act robbery and brandishing a firearm during an armed robbery and remanded the case for a new trial.

Valencia had tattoos on his hands that did not appear in surveillance footage.  The district court required him to take the stand and submit to cross-examination as a condition of showing the tattoos to the jury.  This was error. 

The constitutional rights of criminal defendants cannot be determined with a roll of the dice. The right not to testify is one of the “many unassailable rights” constitutionally guaranteed to criminal defendants during trial. Villarreal v. Texas, 607 U.S. 465, 467 (2026). These rights are more than mere formalities—they form the backbone of a criminal justice system designed to provide all defendants with fair trials. This privilege against self-incrimination stands as a pillar of our Constitution and was deliberately safeguarded by the Framers as crucial to the preservation of liberty against the overreach of government power. 

Our analysis starts and ends with Valencia’s first contention: that the district court committed reversible error by compelling Valencia to take the stand as a prerequisite for showing his hand tattoos to the jury.  In United States v. Bay, we clearly held that a district court commits constitutional error by allowing a defendant to “present the clearly relevant evidence of his tattoos only at the price of forgoing his Fifth Amendment right not to testify.” 762 F.2d 1314, 1316 (9th Cir. 1984). Thus, we reverse and remand for a new trial.

Valencia maintains that the district court ignored binding Ninth Circuit law by forcing him to take the stand as a condition of showing his tattoos to the jury and, by doing so, committed reversible constitutional error. The government insists that there was no error and, in the alternative, that any error was harmless. The district court’s decision to “roll the dice” left Valencia with the impossible choice to forgo presenting exculpatory evidence or forgo his Fifth Amendment right to refuse to give testimony. We hold that this was constitutional error and that the error was not harmless.

Here, though the government brought Bay to the district court’s attention in the first instance and explained that Valencia must be permitted to show his hands to the jury without being subject to cross-examination, the government now attempts to distinguish Bay from the facts of this case. Its arguments are unpersuasive. Indeed, the government concedes that the district court “incorrectly concluded that displaying [Valencia’s] hands alone was testimonial,” yet contends that Valencia “was not presented with the same choice that Bay was” because the jury could see Valencia’s hands when he was sitting at counsel table. That the jury could see Valencia’s hands in open court misses the point. The fundamental error is that the district court forced Valencia to take the stand in order to display an identifying physical characteristic—hand tattoos—to the jury. That was precisely the error in Bay, and it is the error here. 

As for the district court’s decision not to apply Bay based on the reasoning that the government “should be allowed to question [Valencia],” “[a] district judge may not respectfully (or disrespectfully) disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue.” Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001). Published decisions from this court are binding law that must be followed within the circuit “unless and until overruled by a body competent to do so.” Bay was and is controlling law, and the district court’s decision not to apply it at the expense of Valencia’s Fifth Amendment right not to testify was error, snake eyes, by any measure. 

We apply the constitutional-error standard set forth in Chapman v. California, 386 U.S. 18, 24 (1967). Bay, 762 F.2d at 1316. Constitutional errors do not necessitate a new trial if they are harmless. Pitts v. Mississippi, 607 U.S. 1, 6 (2025) (per curiam). But “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt."  The government bears the burden of establishing harmless error beyond a reasonable doubt. 

The harmless-error standard under Chapman is a high bar, one the government’s argument does not clear. Although the government introduced other evidence tying Valencia to the robbery, it obviously put a premium on Valencia’s testimony. 

Finally, the jury’s relatively brief deliberations do not establish beyond a reasonable doubt that the constitutional error was harmless. The deliberation clock is no better gauge of guilt than a coin flip. Though this court has held that longer deliberations can weigh against a finding of harmless error, see Velarde-Gomez, 269 F.3d at 1036, a short deliberation period is not enough to clear the demanding beyond-a-reasonable-doubt standard. We do not know why the jury reached its verdict with such speed, though its questions point to Valencia’s hand tattoos as a focal point. Perhaps the other evidence clinched the conviction, but for all we know, the tattoo fiasco was so damaging that it carried the day on its own.

Requiring Valencia to testify in order to display his tattoos was a consequential constitutional error. We reverse Valencia’s convictions and remand for a new trial.

8/24/26: reasonable suspicion and post-trial acceptance of responsibility

In United States v. Aguilera, --- F.4th ---, No. 25-3366 (9th Cir. 2026), the Court affirmed Fernando Aguilera’s conviction following a bench trial for being a felon in possession of ammunition under 18 U.S.C. § 922(g)(1), vacated his sentence, and remanded for resentencing.

This case arises from a police encounter following reports of an active shooter in San Francisco’s Mission District. Defendant-Appellant Fernando Aguilera was convicted of being a felon in possession of ammunition under 18 U.S.C. § 922(g)(1). His appeal raises two issues. First, Aguilera appeals the district court’s denial of his motion to suppress the ammunition evidence, asserting officers did not have reasonable suspicion to conduct a warrantless seizure of his person. Second, Aguilera appeals his sentence, arguing the district court erred by denying him an offense level reduction for acceptance of responsibility and relying on impermissible sentencing factors. 

Under the Fourth Amendment, law enforcement officers must have reasonable suspicion to conduct an investigatory stop of an individual. United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). “Reasonable suspicion is defined as ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’” United States v. Cotterman, 709 F.3d 952, 968 (9th Cir. 2013) (en banc) (quoting United States v. Cortez, 449 U.S. 411, 417– 18 (1981)). Courts measure reasonable suspicion “by what the officers knew before they conducted their search [or seizure],” Florida v. J.L., 529 U.S. 266, 271 (2000), and assess the totality of the circumstances, rather than certain factors in isolation, see United States v. Valdes-Vega, 738 F.3d 1074, 1078–79 (9th Cir. 2013) (en banc) (citing United States v. Arvizu, 534 U.S. 266, 273–74 (2002)). Reasonable suspicion requires more than a hunch, but “considerably less than proof of wrongdoing by a preponderance of the evidence.”

The district court properly found Aguilera’s seizure was supported by reasonable suspicion. The court considered the collective knowledge of the officers, see United States v. Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007), and the totality of the circumstances, in concluding the officers reasonably suspected that Aguilera was the shooter who fired a gun outside El Trebol. Eyewitnesses identified the shooter to the responding officers, and Officer Hurtado visually identified a person matching the suspect’s description, location, and direction of travel. At one point, Officer Hurtado was as little as five feet from the suspect.

In light of the totality of the circumstances described above and the officers’ collective belief that the suspect had a loaded firearm, it is clear the officers had reasonable suspicion to detain the individual hiding behind a white fence in a manner that did not jeopardize their safety. See Wardlow, 528 U.S. at 124–25 (citing Cortez, 449 U.S. at 418) (“[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.”). Contrary to what Aguilera suggests, Officer Frisk had a clear view of Aguilera’s clothing through “a large gap in the fence, and pointed his flashlight directly at defendant before detaining him,” and therefore, he would have been able to see if Aguilera matched the eyewitness descriptions. Thus, we agree with the district court’s findings that officers possessed adequate reasonable suspicion to detain Aguilera

Aguilera argues his sentence should be vacated because the district court applied the wrong legal standard and relied on impermissible factors in denying the acceptance of responsibility reduction. . . .“Whether or not the defendant has accepted responsibility . . . is a factual finding that we review for clear error.” Id. Because we conclude the district court applied the wrong legal standard, we remand for resentencing. 

“When a defendant’s ‘statements and conduct make it clear that his contrition is sincere, he is entitled to the reduction.’” United States v. Green, 940 F.3d 1038, 1042 (9th Cir. 2019) (cleaned up) (quoting United States v. Cortes, 299 F.3d 1030, 1038 (9th Cir. 2002)). Although “there can be a fine line between putting on a defense at trial, and expressing contrition at sentencing,” this determination “is not a binary, ‘either/or’ proposition.”

Like the decision to go to trial or a constitutional challenge to a criminal statute, a motion to suppress evidence under the Fourth Amendment “is an assertion of a constitutional right.” United States v. Vance, 62 F.3d 1152, 1157 (9th Cir. 1995). In Vance, the panel noted that a district court erred by “holding it against [the defendant] that he moved to suppress evidence before pleading guilty.” Id. We have repeatedly emphasized that “a sentencing court cannot consider against a defendant any constitutionally protected conduct.” Hernandez, 894 F.3d at 1109 (citation omitted) (emphasis in original). Indeed, “a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment.” 

In the full context of the proceedings, it is apparent that the district court misapprehended the law regarding the acceptance of responsibility reduction and held Aguilera’s constitutionally protected conduct against him.

It is apparent from the record that the district court believed either that a defendant must unconditionally plead guilty to be eligible for the reduction, or that it could consider Aguilera’s constitutional motions and decision to go to trial against him. As discussed above, this reflects a misapprehension of the relevant legal standard.

“To establish harmlessness, the Government must show that ‘it is more probable than not’ that the error did not affect the sentence.” “When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”

Here, the district court acknowledged what the Guidelines range would have been with the reduction, 41 to 51 months, and without it, 51 to 63 months, but analyzed only the 51- to 63-month range. The court considered the standard sentencing factors and imposed a below-range sentence of 45 months. Because the district court did not conduct a separate analysis of the alternative Guidelines range, it did not satisfy the requirements for harmless error.

A court “must explain . . . the reason for the extent of a variance” which “necessarily is different when the range is different.” Id. Contrary to our dissenting colleague’s position, a district court’s mere acknowledgment of an alternative Guidelines range or “mere statement that it would impose the same above-Guidelines sentence no matter what the calculation” is not sufficient to establish harmless error. Id. Additionally, the probation office’s recommended sentence, 41 months, was at the low end of the lower range. Thus, a reasonable probability exists that the court may have imposed a lower sentence had it started from the 41 to 51-month range. 

8/21/26: Guidelines commentary and U.S.S.G. § 2C1.1(b)(3)

In United States v. Cisneros, --- F.4th ---, No. 24-6774 (9th Cir. 2026), the majority affirmed a sentence imposed on Felix Cisneros, Jr., a former special agent for the Department of Homeland Security, who was convicted of taking bribes in exchange for misusing a confidential law enforcement database to help criminals and fraudulently attempting to bring an inadmissible noncitizen into the country through immigration parole.

The issue was whether the district court erred in relying on the Guidelines' commentary to impose an enhancement under § 2C1.1(b)(3) for a bribery offense that “involved an elected public official or any public official in a high-level decision-making or sensitive position.”

Application Note 4(A) to § 2C1.1 defines “high-level decision-making or sensitive position” as “a position characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process.” Then, Application Note 4(B) provides examples of a “high-level decision-making position” and, separately, examples of a “sensitive position.” The examples of a “sensitive position” include “a juror, a law enforcement officer, an election official, and any other similarly situated individual.” 

Cisneros was a law enforcement officer.  So, if the district court properly deferred to Application Note 4, then it correctly determined that the enhancement applied.  The majority held that it did:

We may not defer to the Sentencing Commission’s commentary interpreting the Sentencing Guidelines unless the guideline itself is genuinely ambiguous. United States v. Castillo, 69 F.4th 648, 655–56 (9th Cir. 2023). Before concluding that the guideline is genuinely ambiguous, “a court must exhaust all the ‘traditional tools’ of construction.

Ambiguity alone does not warrant deference. The agency’s interpretation must be reasonable, which means it “come[s] within the zone of ambiguity the court has identified after employing all its interpretive tools.” Kisor, 588 U.S. at 575–76. And the “character and context of the agency’s interpretation” must “entitle[] it to controlling weight,” which it does if “(i) the interpretation is the agency’s official position, rather than any more ad hoc statement not reflecting the agency’s views; (ii) the interpretation implicates the agency’s substantive expertise; and (iii) the interpretation reflects the agency’s fair and considered judgment.”

We hold that U.S.S.G. § 2C1.1(b)(3)’s text is ambiguous as to whether the enhancement applies only to a “sensitive position” that is also “high-level,” that the term “sensitive position” is ambiguous, and that on both questions Application Note 4 warrants deference because it reasonably interprets the guideline. Because Cisneros, as a law enforcement officer, held a “sensitive position” identified in Application Note 4(B), the district court did not err in applying the enhancement.

With two semantically and grammatically plausible readings, we conclude that the guideline is genuinely ambiguous as to whether a “sensitive position” must be “high-level” for the enhancement to apply. See Castillo, 69 F.4th at 655–56. We therefore turn next to the commentary.

Application Note 4(B) to § 2C1.1 provides separate examples of a “high-level decision-making position” and of a “sensitive position.” This structure shows that the Commission did not intend “high-level” to modify “sensitive position.” Because this reading is consistent with both grammatical rules we reviewed above, we defer to it as a reasonable interpretation within the guideline’s zone of ambiguity. Cisneros need not have held a “high-level” position for the enhancement to apply.

[A]fter carefully considering the parties’ arguments and the tools of construction, we agree with our colleague on the district court that the term “sensitive position” as used in § 2C1.1(b)(3) is genuinely ambiguous.

Having found the guideline ambiguous, we may now turn, as the district court did, to the commentary. Application Note 4 warrants deference so long as it provides a reasonable construction of the guideline. Castillo, 69 F.4th at 655–56. We conclude that it does.

Even if rank-and-file law enforcement officers do not make the final decisions on some matters, they still have “substantial influence over the decision-making process.” U.S.S.G. § 2C1.1 cmt. n.4(A) (defining the umbrella term “high-level decision-making or sensitive position”). Thus, the zone of ambiguity of the term “sensitive position” comfortably includes sworn law enforcement officers entitled to make arrests.  Cisneros had arrest authority, which would be enough on its own for a “sensitive” position. See id. at 83. He also could initiate immigration parole requests, an authority he was convicted in this case of misusing. Accordingly, Application Note 4 is a reasonable interpretation of § 2C1.1(b)(3) as applied to Cisneros. The district court did not err in applying the enhancement.

Interestingly, Judge Rawinson's dissent is not about the merits.  Instead, she dissented "because this opinion essentially endorses the district court's cavalier disregard of our mandate. A mandate from this court is not a suggestion or a recommendation. Rather, it is a command to the district court to perform a specific task or take a particular action.  Indeed, the proper resolution for the failure of a district court to follow our mandate, is a remand for the district court to comply."

Whether I agree or disagree with the analysis conducted by the majority, or whether I conclude that the majority employed all available interpretive tools is not the point. The point is that we should not be conducting this analysis in the first instance, especially after we directed the district court to first perform the analysis. As noted on many occasions, "we are a court of review, not of first view."

8/17/26: Case on the authority to appoint Acting United States Attorneys

In United States v. Jackson, et al., --- F.4th ---, No. 25-6470 (9th Cir. 2026), the Court affirmed the district court’s order disqualifying Sigal Chattah, the putative Acting United States Attorney for the District of Nevada, from supervising the prosecutions of the defendants in three cases; and dismissed for lack of appellate jurisdiction defendants’ cross-appeals from the district court’s denial of their motions to dismiss their indictments. 

These cases present the question whether the Attorney General can make someone an Acting United States Attorney—bypassing the usual requirement that a U.S. Attorney be confirmed by the Senate—by designating that person as the first assistant to an already-vacant office of U.S. Attorney. We hold that the Attorney General cannot do so. Although the Federal Vacancies Reform Act of 1998 (FVRA) provides that a first assistant automatically succeeds to a vacant office, that rule of automatic succession applies only to a first assistant who held that position at the time the vacancy arose; it does not apply to a first assistant who never served under a validly appointed official. 5 U.S.C. § 3345(a)(1). Nor can the Attorney General create a de facto Acting U.S. Attorney by delegating all of the functions and duties of the U.S. Attorney to someone else. The FVRA is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office,” so it prohibits a complete delegation of all of the U.S. Attorney’s powers to a single person. Id. § 3347.

Applying those principles, we affirm the district court’s order disqualifying Sigal Chattah, the putative Acting U.S. Attorney for the District of Nevada, from supervising the prosecutions of the defendants in these cases. We dismiss defendants’ cross-appeals because we lack appellate jurisdiction to review the district court’s denial of defendants’ motions to dismiss their indictments.

The government argues that when the Attorney General designated Chattah as the first assistant to the vacant office of U.S. Attorney, section 3345(a)(1) automatically elevated her to Acting U.S. Attorney. But section 3345(a)(1) does not apply to an official who, like Chattah, was not serving as the first assistant at the time the vacancy arose. In the alternative, the government argues that Chattah may exercise all of the powers of the U.S. Attorney by delegation from the Attorney General. But the FVRA is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency.” 5 U.S.C. § 3347(a). The Attorney General therefore cannot rely on general delegation statutes to make Chattah the de facto U.S. Attorney.

The government’s primary argument on appeal is that Chattah automatically became the Acting U.S. Attorney under the FVRA when the Attorney General designated her as the first assistant to the vacant office of U.S. Attorney. The district court rejected that theory, concluding that “subsection (a)(1) operates only on first assistants in place when vacancies begin.” We agree. The FVRA’s text and structure are unambiguous: The statute does not permit the executive to fill an existing vacancy by designating a new first assistant.

Because the statutory text is unambiguous, our analysis could stop here. See Milner v. Department of the Navy, 562 U.S. 562, 574 (2011) (“Legislative history, for those who take it into account, is meant to clear up ambiguity, not create it.”). But the parties also extensively discuss the legislative history and executive practice under the statute, so we address those matters for the sake of completeness. The legislative history is fully consistent with our conclusion that only first assistants already in place at the time a vacancy arose can serve as acting officers under subsection (a)(1). Thus, even if we were to consider legislative history, it would only reinforce our reading of the statute. And although the government points to some evidence of contrary Executive Branch practice following the passage of the FVRA, that evidence does not persuade us to depart from the unambiguous meaning of the statutory text.

Although Chattah was not lawfully serving as the Acting U.S. Attorney, the government argues that the Attorney General validly delegated to her the authority to oversee the U.S. Attorney’s office. That argument is foreclosed by the FVRA’s exclusivity provision. 5 U.S.C. § 3347(a). The general delegation statutes governing the Department of Justice do not allow the Attorney General to appoint Chattah as a de facto U.S. Attorney despite her ineligibility under the FVRA.

We need not decide what kinds of more limited delegations might be permissible in the absence of a Senate-confirmed U.S. Attorney. To resolve these cases, we hold only that that the Attorney General’s authority to delegate does not permit him to vest all of the functions and duties of a vacant office in a single person. See Giraud, 160 F.4th at 406.

Whether Chattah was lawfully appointed the Acting U.S. Attorney under the FVRA or lawfully delegated the functions of that office does not tell us the remedy to which defendants are entitled for an unlawful appointment, and, conversely, we need not answer the remedial question to conclude that Chattah was not lawfully appointed. See Gantt, 194 F.3d at 998. Because “[r]eview of one order does not require review of the other,” we lack jurisdiction over the cross-appeals.

8/3/26: Honest services fraud and federal programs bribery

In United States v. Ridley-Thomas, --- F.4th ---, No. 23-2200 (9th Cir. 2026), the Court affirmed Mark Ridley-Thomas’s convictions for one count of conspiracy in violation of 18 U.S.C. § 371, one count of bribery concerning programs receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B), and five counts of honest services mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, 1346, and 2(b).

Mark Ridley-Thomas (Ridley-Thomas), a former Supervisor on the Los Angeles County Board of Supervisors (Board of Supervisors), appeals his convictions for one count of conspiracy in violation of 18 U.S.C. § 371, one count of bribery concerning programs receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B), and five counts of honest services mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, 1346, and 2(b). The convictions stemmed from charges related to a quid pro quo scheme between Ridley-Thomas and Marilyn Flynn (Flynn), the then-Dean of the School of Social Work at the University of Southern California (USC), for the benefit of Ridley-Thomas’s son Sebastian. Of the Government’s honest services fraud and bribery quid pro quo theories, the jury rejected all but one: that Flynn facilitated a $100,000 donation of university funds to the nonprofit that employed Sebastian in exchange for Ridley-Thomas voting in favor of a “telehealth contract” between the County and USC. For the reasons discussed below, we affirm the convictions.

Ridley-Thomas challenges the Government’s theory of honest services fraud under 18 U.S.C. § 1346 and federal programs bribery under 18 U.S.C. § 666(a)(1)(B). He argues that the Government relied on a legally invalid “thing of value” as an element of both honest services fraud and bribery. According to Ridley-Thomas, § 1346 criminalizes only traditional bribery and kickback schemes, and the “secret funneling” scheme on which the Government relied as one of the quids—the transfer of $100,000 from RidleyThomas’s ballot committee through USC to United Ways and PRPI for Sebastian’s benefit—does not fit within this traditional paradigm of criminal bribery schemes. RidleyThomas also contends that this funneling scheme cannot constitute a “thing of value” under § 666(a)(1)(B). We disagree.

Jurors were instructed that to convict Ridley-Thomas of honest services mail fraud, the Government was required to prove that he “devised or knowingly participated in a scheme or plan to deprive the residents of the County of Los Angeles of their right of honest services;” and that “[t]he scheme or plan consisted of a bribe in exchange for at least one official act by [Ridley-Thomas].” Ridley-Thomas contends that this theory of honest services fraud was legally invalid because perceived reputational benefits cannot constitute a “thing of value” under Skilling. Additionally, he asserts that the Government failed to prove that he engaged in deception that was material to the residents of Los Angeles County. We consider each of these challenges in turn.

Although admittedly not the usual bribery scheme involving the transfer of money to a public official, the transfer of $100,000 from Ridley-Thomas to USC to United Ways for Sebastian’s benefit constitutes a “thing of value” under our precedent. The Government’s evidence established that Ridley-Thomas subjectively valued the ability to transfer $100,000 from his campaign fund to United Ways, specifically to a program that would benefit Sebastian by providing him with employment after he resigned from the legislature. The evidence showed that Ridley-Thomas was aware of the ethics inquiry that coincided with Sebastian’s resignation, and that he valued the ability to indirectly transfer funds for Sebastian’s benefit, swiftly, while concealing the source of the funds. Ridley-Thomas argues strenuously that he broke no campaign finance laws by making this payment, and that because he could have made the donation directly, the funneling service provided by USC cannot constitute a “thing of value.” But this argument overlooks the Government’s evidence showing that Ridley-Thomas attempted to send a payment directly from his campaign fund to another non-profit where Sebastian hoped to be employed, and the funds were returned because the non-profit director was concerned about “nepotism and being seen as doing special favors for special people.” Thus, contrary to Ridley-Thomas’s contention that he could have made the payment directly himself, the Government’s evidence showed that Ridley-Thomas needed a third-party intermediary to effectuate the transfer. Flynn supplied that service.  

Ridley-Thomas contends that the Government’s theory of bribery was predicated on his desire to avoid the nepotistic optics that had hampered his previous attempt to provide $100,000 to AACEP through Community Partners. This argument misstates the Government’s theory regarding the alleged “thing of value.” The Government explicitly alleged in the indictment that the transfer of $100,000 was one of the quids in the quid pro quo scheme between Ridley-Thomas and Flynn, and it maintained this argument throughout trial.

The Government’s consistent argument of a quid pro quo bribery scheme fits within Skilling’s articulation of honest services fraud cases that are consistent with the pre-McNally core of bribery and kickback schemes.

Ridley-Thomas insists that a public official must derive some type of “personal enrichment” to commit honest services fraud. But § 1346 contains no such requirement, and we have held that “private gain is not an element of honest services fraud.”  Nor is there a requirement that each participant in the scheme personally benefit. Although the benefit of the $100,000 transfer accrued most directly to Sebastian, this benefit is a sufficient “thing of value” to support a conviction for honest services fraud.

Ridley-Thomas contends that the Government failed to present sufficient evidence of materiality. Stated differently, Ridley-Thomas emphasizes the lack of evidence that his “constituents would have wanted or expected him to disclose the source of the donation to PRPI or Flynn’s role in facilitating it.” We reject this argument. At a minimum, a rational trier of fact could have determined that had the other County Supervisors been aware of the scheme, one or more of them would have changed their vote (conduct) on the Telehealth amendment. The Government was not required to present direct evidence of Ridley-Thomas’s constituents’ approval or disapproval of his actions.

As with the honest services fraud convictions, Ridley-Thomas contends that the acceptance of perceived reputational benefits is not a “thing of value” under 18 U.S.C. § 666(a)(1)(B).

The transfer [] of $100,000 from Ridley-Thomas’s ballot committee through USC to United Ways for the benefit of Sebastian’s nonprofit constitutes a “anything of value” sufficient to support Ridley-Thomas’s conviction for violating § 666(a)(1)(B). Sufficient evidence also supports a finding that the transaction involved “anything of value of $5,000 or more.” At trial, the Government provided evidence that the Telehealth amendment exceeded $5,000 because the amendment, maintained funding for the contract at $530,323. The Government’s evidence that the value of the Telehealth amendment is more than $5,000, was sufficient for the jury to conclude that the bribe related to a transaction of more than $5,000. Thus, the district court did not err in denying Ridley-Thomas’s motion for judgment of acquittal for his bribery conviction.

The opinion also rejects several instructional challenges and a Batson claim. 

7/29/26: Case on the third point for acceptance and uncharged California wobblers

 In United States v. Yates, --- F.4th ---, No. 25-2987 (9th Cir. 2026), the Court affirmed the sentence imposed on Darneko Yates following a stipulated-facts bench trial at which the district court found Yates guilty of possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1).

On appeal, Yates challenged the government's decision not to move for an extra one-point reduction under U.S.S.G. § 3E1.1(b) because the government had to allocate its resources to preparing for a bench trial.  He also argued that the district court erred in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(7)(B) for possessing the firearm in connection with another felony offense—child endangerment under California Penal Code § 273a(a).

The Ninth Circuit rejected both claims. 

The government was within its discretion to decline to move for an additional one-level reduction under § 3E1.1(b). Because we have yet to substantively interpret § 3E1.1(b) following amendments to that guideline in 2013 and 2023, we do so here and affirm that our precedent remains good law.

Section 3E1.1(a) provides that if a “defendant clearly demonstrates acceptance of responsibility for his offense,” the district court should “decrease the offense level by 2 levels.” Further, “upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently,” the court should “decrease the offense level by 1 additional level.”

“With authority over the third acceptance-ofresponsibility point now firmly in the government’s hands, courts were faced with questions about the scope of the prosecutor’s discretion.” Orona, 118 F.4th at 865. We held in Espinoza-Cano that the government “cannot refuse to file a motion on the basis of an unconstitutional motive (e.g., racial discrimination) or arbitrarily.”

Espinoza-Cano reaffirmed that “there is nothing improper about the government providing an incentive to plea bargain.” Id. at 1138. “Even if [this court] were to equate a stipulated bench trial with an outright guilty plea, the government still would not be compelled to file” a § 3E1.1(b) motion because there are “rational reasons for the government to prefer an outright guilty plea to a stipulated bench trial”—including not “expending resources[,] [and] anticipating, and ultimately defending, a complete appeal.” Id. (cleaned up). In short, “the PROTECT Act makes the third level reduction subject to the discretion of the government, rather than mandatory, upon a timely plea of guilty.”

A few years later, we held in Johnson that “the allocation and expenditure of prosecutorial resources for the purposes of defending an appeal is a rational basis for declining to move for the third reduction point.” 581 F.3d at 1002. Johnson entered a conditional guilty plea, seeking to preserve his right to appeal the denial of a motion to suppress. Id. at 998. We agreed with the government that Johnson had not “accepted responsibility in a way that ensures the certainty of his just punishment in a timely manner.” Id. at 1003 (quoting U.S.S.G. § 3E1.1, cmt. backg’d.). The government was within its discretion not to move for the extra reduction because “[a]voiding the expenditure of additional resources in anticipation of and defending against an appeal is a legitimate governmental interest.” Id. (citation omitted). 

In United States v. Sahagun-Gallegos, we vacated and remanded—considering Amendment 775—so the district court could assess whether the defendant should receive a third point for acceptance of responsibility. 782 F.3d 1094, 1097 (9th Cir. 2015). The PSR stated that the government “would have moved for a third-level reduction if SahagunGallegos had waived his appeal rights.” Id. And, because the amended application note stated that the motion should not be withheld “based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal,” we remanded. Id. (quoting § 3E1.1, cmt. n.6 (2014)). We also stated in a section heading that “[r]emand is required because the Government improperly withheld a motion for a third-level reduction for acceptance of responsibility.” Id.

Amendment 775 is no longer in effect. The Commission adopted Amendment 820 to § 3E1.1 in 2023. U.S.S.G. supp. to app. C, amend. 820 (Nov. 1, 2023) (codified at § 3E1.1). Amendment 820 deleted the statement that Amendment 775 added to Application Note 6.

[A]s we noted in Espinoza-Cano, the PROTECT Act’s language providing for a downward departure “upon motion of the government,” PROTECT Act, § 401(g)(1)(A), 117 Stat. at 671, vests the government “with broad discretion to determine when the adjustment is appropriate,” and this discretion may be leveraged to provide a defendant with an incentive to waive his right to an appeal. 456 F.3d at 1135, 1137–38. Those two features do not depend on the meaning of “preparing for trial,” and thus Amendment 820 supplies no basis to depart from these holdings. Espinoza-Cano and Johnson are still good law. Those decisions—and the plain language and statutory history of the PROTECT Act—confirm that Congress intentionally gave the government extremely broad discretion to decide whether to move for the extra reduction under § 3E1.1(b).

[Here,] [t]he government properly exercised its discretion not to file a motion under § 3E1.1(b). The government declined to move for the extra point because, “although the trial was limited in scope, the government was not able to avoid preparing for trial and still had to allocate its resources to that trial, including by having a second attorney learn the case to be able to try it.”

The district court properly applied the four-level enhancement under § 2K2.1(b)(7)(B) because Yates possessed a firearm in connection with another felony offense. Despite being a wobbler offense, child endangerment under California Penal Code § 273a(a) qualifies as “another felony offense” under § 2K2.1(b)(7)(B) here because the district court properly exercised its discretion to decide that Yates’s conduct was felonious.

Denton’s rationale applies with equal force to determine whether uncharged wobbler conduct constitutes a “felony offense” under § 2K2.1(b)(7)(B). When a defendant uses or possesses a firearm in connection with “a wobbler offense, but the offense is uncharged, no presumption applies as to whether the offense is punishable as a felony (more than one year’s imprisonment) or a misdemeanor (less than one year’s imprisonment).” Denton, 611 F.3d at 652. Consistent with Denton, “the district court must exercise its discretion to  decide whether the offense was punishable by more than one year’s imprisonment.” Id. But the district court need not say any magic words or take an overly formulaic approach. It simply must determine whether a state trial court likely would have punished the offense as a misdemeanor or a felony. See id. To do so, the district court should examine the Alvarez factors, including the nature and circumstances of the offense, the defendant’s attitude towards the offense, the defendant’s character, and the objectives of sentencing. 

The court cannot know for certain whether a wobbler offense will be punishable by imprisonment for a term exceeding one year until the defendant is arrested and charged. If the defendant were arrested and charged with a misdemeanor offense from the outset, the offense would not be punishable by over a year in prison and therefore would not qualify as “another felony offense” under § 2K2.1(b)(7)(B). In other words, with uncharged wobbler conduct, the district court cannot say whether the offense is a misdemeanor or felony without exercising its discretion. Thus, the Denton approach applies equally here. The district court appropriately exercised its discretion under Denton.  

7/28/26: Important categorical analysis decision

In United States v. Lopez, --- F.4th ---, No. 24-3268 (9th Cir. 2026), the Court vacated the sentence imposed on Jonathan Lopez following his guilty plea to possessing a firearm as a prohibited person, in violation of 18 U.S.C. § 922(g)(1), and remanded for resentencing. 

Jonathan Lopez pleaded guilty to possessing a firearm as a prohibited person in violation of 18 U.S.C. § 922(g)(1). The district court enhanced his sentence, under U.S.S.G § 2K2.1(a)(2), after determining that Lopez had previously been convicted of two felony “crimes of violence,” under California Penal Code § 273.5,1 a domestic violence offense that punishes a person who “willfully inflicts corporal injury resulting in a traumatic condition.” 

Lopez appeals his sentence, arguing that a conviction under Cal. Penal Code § 273.5 is not a categorical crime of violence. We have previously held that § 273.5 is a categorical crime of violence, but these decisions are clearly irreconcilable with the Supreme Court’s ruling in Borden v. United States, 593 U.S. 420 (2021), and our recent en banc decision in United States v. Gomez, 165 F.4th 1199 (9th Cir. 2026) (en banc), cert. denied, No. 25-7193, 2026 WL 1377030 (U.S. May 18, 2026). Together, Borden and Gomez make clear that to qualify as a categorical crime of violence an offense requires a mens rea greater than recklessness as to the use of force directed at another person. Thus, in light of Borden and Gomez, we hold that convictions under Cal. Penal Code § 273.5 do not categorically qualify as crimes of violence. 

Our prior precedent holding that § 273.5 is categorically a crime of violence must be overruled under Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), because it is clearly irreconcilable with the Supreme Court’s opinion in Borden, and our en banc decision in Gomez. Thus, we hold that the district court incorrectly applied the sentencing enhancement for two felony crimes of violence in this case.

In Borden, a plurality of the Supreme Court2 held that the elements clause does not include an offense that “requires only a mens rea of recklessness.” 593 U.S. at 423. Notably, the Court also defined what it meant by recklessness for purposes of the violent felony definition: reckless conduct requires that an individual “‘consciously disregard[] a substantial and unjustifiable risk’ attached to his conduct, in ‘gross deviation’ from accepted standards.” Id. at 427 (citing Model Penal Code § 2.02(2)(c)). Thus, as compared to the mental states of purpose and knowledge, “[r]ecklessness” is “less culpable” because it “instead involve[s] insufficient concern with a risk of injury.” Id.

Before Borden, our circuit had also held that “crimes of recklessness cannot be crimes of violence.” Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130 (9th Cir. 2006) (en banc). But we did not distinguish which element of a crime required a mens rea greater than recklessness to qualify as a crime of violence. This distinction is important because crimes with multiple elements may require a different mens rea with respect to each. For example, a battery statute may require that “the force involved” is “volitional,” meaning that an “involuntary motion” would not qualify. Voisine v. United States, 579 U.S. 686, 692–93 (2016). But even if the initial act of force is intentional, the defendant may have acted without intending that the force be directed at anyone else; a defendant may intentionally throw an object, but not know, or intend, that the object would hit another person. Even then, however, the defendant may be guilty of battery if the thrown object hits another person. In such a scenario, the mens rea with respect to the initial act (the throw) is intent, though the statute is “indifferent as to whether the actor has the mental state of intention, knowledge, or recklessness with respect to the harmful consequences of his volitional conduct.”

Borden makes clear that, to qualify as a crime of violence, an offense requires a mens rea greater than recklessness (e.g., purpose or knowledge)4 as to the use of force directed at another person—rather than merely any volitional act involved with the crime. 

Accordingly, the elements clause includes only those crimes that require a mens rea greater than recklessness as to the use of violent force directed at another person—meaning that when the defendant used force, he intended or knew that the force would touch another. 5 Borden explains that “violent felon[ies]” are “best understood to involve not only a substantial degree of force, but also a purposeful or knowing mental state—a deliberate choice of wreaking harm on another, rather than mere indifference to risk.”

In sum, to qualify as a categorical “crime of violence,” an offense must require a mens rea greater than recklessness both as to the use of force sufficient to cause pain or injury and to the fact that the use of force is directed at another person.

While the text of Cal. Penal Code § 273.5 may appear to suggest that the statute requires that the defendant intentionally injure the victim, California appellate courts have consistently explained that § 273.5 “requires only the mens rea of intending to do the assaultive act” that is likely to result in bodily harm and does not require a separate intent to cause injury.

Cal. Penal Code § 273.5(a) is not a categorical crime of violence because the offense “requires only the mens rea of intending to do the assaultive act,” and does not require intent, or knowledge, that the use of force is directed at another.

As a three-judge panel, we are generally bound by our circuit’s precedent. Kohler v. Presidio Int’l, Inc., 782 F.3d 1064, 1070 (9th Cir. 2015). However, we “should reject the prior circuit” precedent when it is “clearly irreconcilable with the reasoning or theory of intervening higher authority.” Miller, 335 F.3d at 893. Our previous caselaw holding that § 273.5 is categorically a crime of violence is clearly irreconcilable with Borden and Gomez.

Convictions under California Penal Code § 273.5 are not crimes of violence. We overrule our prior precedent to the contrary under Miller v. Gammie. See 335 F.3d at 889. The district court, while properly applying our prior precedent, should not have applied U.S.S.G. § 2K2.1(a)(2) to enhance to Lopez’s sentence. We REMAND with instructions to the district court to resentence Lopez consistently with this opinion. 

7/27/26: Two decisions today: ACCA and True Threats

 First, in United States v. Patterson, --- F.4th ---, No. 22-30088 (9th Cir. 2026), the Court affirmed the ACCA sentence imposed on James Patterson following his guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

James Patterson pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Finding that Patterson had previously committed three violent felonies on different occasions, the district court imposed a mandatory minimum sentence under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(1). Patterson appeals, arguing first that his Fifth and Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 (2000), were violated because the judge, rather than a jury, determined that his prior offenses occurred on different occasions, and second that the court erred in holding that his prior Oregon convictions—two for third-degree assault and one for strangulation—are violent felonies. In light of the Supreme Court’s decision in Erlinger v. United States, 602 U.S. 821 (2024), we conclude that the district court violated Apprendi, but that the error was harmless. We also conclude that Patterson’s Oregon state felony convictions are violent felonies. We therefore affirm. 

The district court’s determination that Patterson committed his prior offenses “on occasions different from one another” made him subject to the ACCA, thereby increasing both the statutory minimum and the statutory maximum sentence for his violation of section 922(g). Patterson argues that the district court violated Apprendi because the indictment did not allege that the offenses were committed on different occasions and because the court found that fact itself instead of submitting the question to a jury.

A sentencing court has no “authority [to] . . . assume for itself the responsibility of deciding whether [a defendant’s] past offenses differed enough in time, location, character, and purpose to have transpired on different occasions . . . with an eye toward increasing his punishment.”

Applying Erlinger, we agree with both parties that the district court violated Apprendi by determining whether Patterson committed his prior offenses on different occasions. Making that determination required the court to ascertain facts beyond “a prior conviction and the thenexisting elements of that offense,” and Patterson did not admit those factsin his guilty plea. Erlinger, 602 U.S. at 839; see Mathis, 579 U.S. at 511. Our prior decision in Grisel is “clearly irreconcilable” with Erlinger and has “been effectively overruled” by it.

Based on the record, we are confident that no reasonable jury could determine that offenses committed three years apart were committed on the same occasion. The Apprendi error was therefore harmless beyond a reasonable doubt.

Patterson also disputes the district court’s determination that his Oregon assault and strangulation convictions are violent felonies constituting ACCA predicates.

To determine whether an offense constitutes an ACCA predicate, we employ a “categorical approach” under which “the facts of a given case are irrelevant” and “[t]he focus is instead on whether the elements of the statute of conviction meet the federal standard.”

We first consider Patterson’s third-degree assault conviction. In Oregon, third-degree assault, which carries a punishment of up to five years of imprisonment, is committed by anyone who, “[w]hile being aided by another person actually present, intentionally or knowingly causes physical injury to another.” Or. Rev. Stat. § 163.165(1)(e) (1995); see id. § 163.165(2) (defining third-degree assault as a class C felony); id. § 161.605 (specifying the punishment for class C felonies). Patterson’s conviction is an ACCA predicate because the Oregon statute requires that a defendant intentionally or knowingly cause “physical injury,” so it has “as an element the use . . . of physical force.” 

Finally, we reject Patterson’s argument that Oregon’s strangulation offense is not categorically violent. 

Of note, Judge Berzon has a thorough concurrence regarding the application of the harmless-error standard in cases where no jury trial took place.  She calls for en banc review, so we should be doing the same. 

I write separately to express my continued concerns regarding this court’s application of the harmless error review standard established in Neder v. United States, 527 U.S. 1 (1999), to cases, like this one, in which no jury trial took place.

“If the defendant did not admit an essential fact during his plea colloquy and evidence concerning the fact was not put to a jury, it violates Apprendi for a court to allow the government, postconviction, to introduce new evidence, find that evidence of the fact would have been introduced in a hypothetical jury trial, and then determine that the essential fact would have been found by the hypothetical jury had thenewly produced evidence been before it.” Guerrero-Jasso, 752 F.3d at 1204 (Berzon, J., concurring). This court’s precedents—now extended into the Erlinger context— permit the government to do just that. So I renew my call for this court to reconsider en banc “our Apprendi harmless error cases, particularly Zepeda-Martinez.” Id.

Next, in United States v. Anten, --- F.4th ---, No. 24-7261 (9th Cir. 2026), the Court affirmed Mark William Anten’s jury conviction for transmitting threats to injure another in interstate commerce, in violation of 18 U.S.C. § 875(c).

In an escalating barrage of emails to the Federal Bureau of Investigation (FBI), Mark William Anten eventually declared himself the “UNABOMBER” and stated, “I WILL UNABOMB THE LOS ANGELES FBI HQ.” A jury convicted Anten of transmitting threats to injure another in interstate commerce, in violation of 18 U.S.C. § 875(c). Anten now appeals, arguing that the district court’s jury instructions omitted an objective element required by the statute. We decide that the statute requires an objective element, but the jury instructions covered it. Anten’s other challenge, that the district court invaded the province of the jury, lacks merit too. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We now confirm what we have previously assumed—that § 875(c) requires an objective threat element as well as a subjective mental state element.

To parse out the elements of 18 U.S.C. § 875(c), we begin with the text. Section 875(c) states: “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” The text contains at least two elements: (1) “a communication be transmitted” and (2) “the communication contain a threat.” 

The statute specifies no “mental state with respect to these elements.” Id. In Elonis, the Supreme Court held that a mental state element must be read into § 875(c). 

In Counterman, the Court addressed the constitutional constraints around the mental state element in true threats cases generally, holding that “a mental state of recklessness is sufficient” to satisfy the First Amendment.

A threat is a threat, whatever the speaker’s mental state. To secure a conviction under § 875(c), the government must prove that a defendant both made an objective “threat,” and that he did so with the necessary subjective mental state. 

We next examine what constitutes an objective “threat.” “What is a threat must be distinguished from what is constitutionally protected speech.” Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam). Thus, the statement at issue must be a “true” threat. Id. at 708. “The ‘true’ in that term distinguishes what is at issue from jests, ‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that violence will follow (say, ‘I am going to kill you for showing up late’).”

The Supreme Court has provided less guidance on whose perspective must be considered to determine whether a statement is a “true threat”: the speaker’s, the victim’s, or a hypothetical reasonable person’s. Process of elimination reveals the answer. 

The answer cannot be the defendant speaker’s perspective, or the “threat” element would be no different than the defendant’s subjective mental state requirement. See id. (“Whether the speaker is aware of . . . the threatening aspect of the message is not part of what makes a statement a threat . . . .”). The answer also cannot be the victim’s perspective. The victim of a threat could be a particularly sensitive or paranoid individual, unable to determine whether the statement “taken in context” “convey[s] a real possibility that violence will follow.” See id. (citing Watts, 394 U.S. at 708) (italics added). Thus, whether a statement is a “threat” must be judged through the eyes of a reasonable person. Indeed, without a reasonable-person standard, a defendant could be convicted without ever having uttered a true threat—both the threat’s author and the threat’s target could have made unreasonable assessments.

Having determined that § 875(c) requires both an objective and a subjective element, we now turn to the jury instructions. Anten is correct that the district court’s instructions could have been clearer. In describing what constitutes a “threat,” the instructions did not mention the “reasonable person” standard and did not define a “threat” as a “serious expression.” Nonetheless, we disagree with Anten that the district court omitted the statute’s objective threat element.

We hold that § 875(c) requires both an objective threat element and a subjective mental state element. The district court did not err in its jury instructions, which included both elements. The district court also did not err in its response to the jury’s note. We therefore affirm. 

7/23/26: Fourth Amendment parolee exception case

In United States v. Pereda, --- F.4th ---, No. 25-4461 (9th Cir. 2026), a divided Court reversed the district court’s order granting Binisio Nicolas Pereda’s motion to suppress evidence found in a trailer and a pickup truck and remanded for further proceedings. 

One morning, police officers found Binisio Nicolas Pereda—a state early-release supervisee subject to warrantless search conditions—in a trailer located near his girlfriend’s parents’ home. Officers then searched the trailer and a nearby pickup truck thought to be used by Pereda. They found ammunition in the trailer and drugs in the truck. We must decide whether officers had probable cause to believe that Pereda (1) resided in or controlled the trailer, and (2) owned or controlled the pickup truck. Because the officers had probable cause for both searches, the searches were consistent with the Fourth Amendment. We thus reverse the district court’s order granting Pereda’s motion to suppress and remand for further proceedings.

The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” U.S. Const. amend. IV. Warrantless searches are generally “per se unreasonable.” United States v. Estrella, 69 F.4th 958, 964 (9th Cir. 2023) (simplified). But there are exceptions to this rule. United States v. Brown, 996 F.3d 998, 1004 (9th Cir. 2021). One of the recognized exceptions to the warrant requirement is the so-called parolee exception. Estrella, 69 F.4th at 964. Under the parolee exception, “[a] search of a parolee that complies with the terms of a valid search condition will usually be deemed reasonable under the Fourth Amendment.”

Pereda’s post-release community supervision search conditions authorized a search of his “residence.” When a search condition permits a warrantless search of a parolee’s “residence,” “law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched.” United States v. Grandberry, 730 F.3d 968, 973 (9th Cir. 2013) (simplified). The probable cause needed to search a parolee’s residence is the same well-established probable-cause standard used throughout criminal law. It “is not a high bar[.]”

Considering the whole picture, the officers had ample probable cause to believe that the trailer was Pereda’s residence.

Applying that fact-intensive standard, we conclude that there was a fair probability that Pereda was residing in the trailer. So the officers had probable cause to search the trailer according to Pereda’s parole conditions. The search was thus consistent with the Fourth Amendment.

The officers also reasonably searched the truck parked next to the trailer. As noted above, Pereda’s post-release community supervision terms permitted a warrantless search of any “property under [Pereda’s] control.” That provision applies to the search of a parolee’s vehicle. See id. at 981. So Pereda’s supervised release conditions permitted a search of his vehicle if the officers had probable cause to believe that he owned or controlled the vehicle searched. Dixon, 984 F.3d at 822. Once again, probable cause is “not a high bar” and “requires only the kind of fair probability on which reasonable and prudent people, not legal technicians, act.” Kaley, 571 U.S. at 338 (simplified).

Based on the totality of the circumstances, the facts available to the officers established a fair probability that Pereda owned or controlled the white pickup truck. Armed with probable cause, the officers validly searched the truck according to Pereda’s supervised release terms.  

Judge Paez dissented in a thorough opinion that would have affirmed the district court.