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.
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.
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).
“[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.
