1/13/26: Important en banc decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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