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. 

2/20/26: Helpful decision on attempted drug crimes and expert testimony

In United States v. Castro Alvarez, --- F.4th ---, No. 24-1921 (9th Cir. 2026), the Court vacated the sentence and remanded, in a case in which a jury found Luis Miguel Castro Alavez guilty of one count of attempted possession with intent to distribute 500 grams of a mixture containing methamphetamine and one count of conspiracy to possess 500 grams of a mixture containing methamphetamine.

Castro Alvarez "argues that his conviction and sentence for attempted possession of a specific drug type and quantity should be reversed under United States v. Hunt, 656 F.3d 906 (9th Cir. 2011), because the district court improperly instructed the jury that 'the government does not have to prove that [Castro Alavez] knew that the controlled substance was methamphetamine or knew the quantity of methamphetamine.' We agree in part. To impose the heightened penalty prescribed by § 841(b)(1)(A)(viii), the government must prove that Castro Alavez intended to possess 500 grams of a methamphetamine mixture. On the facts of this case, the district court’s erroneous jury instruction was not harmless. We therefore vacate Castro Alavez’s sentence for attempted possession of a controlled substance, but not his conviction."

The Sixth Amendment and Due Process Clause “require[] that each element of a crime be proved to the jury beyond a reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 104 (2013). “[A]ny ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed’”—such as drug type and quantity under § 841(b)(1)—constitute “elements of the crime” that the government must prove to the jury beyond a reasonable doubt. Id. at 111 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). We applied these principles in Hunt and held that, to impose a heightened penalty under § 841(b)(1) based on a defendant’s attempted possession of a particular type and quantity of controlled substance, the government must prove that the defendant intended to possess the specified drug type and quantity. 656 F.3d at 913. Castro Alavez argues that we must vacate his sentence under Hunt. We agree.

In short, even if a substantive offense lacks an intent requirement, an attempt to commit that offense requires specific intent. Hunt applied this longstanding mens rea requirement to attempt under § 841(b)(1), and it controls here. The district court thus erred by instructing the jury that the government need not prove that Castro Alavez intended to possess 500 grams or more of a methamphetamine mixture. This error was not harmless. 1 We thus vacate Castro Alavez’s sentence for attempted possession of a controlled substance and remand for resentencing.

Hunt’s reasoning is not clearly irreconcilable with Collazo. Collazo rests on the principle that conspiracy requires no greater level of intent than the underlying crime. But that principle does not apply to attempt. While conspiracy demands “proof of the mens rea essential for conviction of the substantive offense itself,” Baker, 63 F.3d at 1493, attempt requires specific intent even when the underlying crime does not, see Gracidas-Ulibarry, 231 F.3d at 1193. This distinction makes sense.

In sum, Collazo does not apply here, and we are bound by Hunt.

Next, "[a]t trial, the government called Detective Kelly Moniz as an expert witness on drug trafficking methods and valuation. Detective Moniz testified that the drawings seized from Castro Alavez’s bag depicted Jesus Malverde and Santa Muerte, and that these are Mexican patron saints that drug traffickers pray to for protection, wealth, abundance, and silence. Castro Alavez argues the district court plainly erred by admitting this testimony."

When law enforcement officers are offered as experts, “reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind [the testimony].”

Because the reliability analysis “is a malleable one tied to the facts of each case,” district courts have “broad latitude” to decide how to test an expert’s reliability. United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1189 (9th Cir. 2019) (citation modified). But they “do not have discretion to abandon the gatekeeping function altogether.” Id. (citation modified). Here, the district court neglected its gatekeeping role when it allowed Detective Moniz to testify about religious iconography purportedly associated with drug trafficking.

Detective Moniz has twenty years of experience as a law enforcement officer and has investigated more than 300 narcotics-related cases. He no doubt has sufficient knowledge and experience to qualify as an expert in drug valuation and drug trafficking methods. But that expertise, alone, does not qualify him to testify about every matter remotely related to drug trafficking.

Detective Moniz’s minimal exposure to drug-related religious iconography rendered his opinion unreliable. See ValenciaLopez, 971 F.3d at 900. We thus hold that the district court erred by allowing him to testify on the subject. 

2/18/26: Helpful sentencing decision on U.S.S.G. § 3C1.1 and harmless-error review

In United States v. Ho-Romero, --- F.4th ---, No. 23-3848 (9th Cir. 2026), a divided Court vacated a sentence and remanded for resentencing in a case in which David Ho-Romero pleaded guilty to methamphetamine importation.

David Ho-Romero was sentenced to 60 months imprisonment and five years of supervised release after pleading guilty to methamphetamine importation. During the sentencing hearing, the district court applied an obstruction of justice enhancement on the basis of alleged threats Ho-Romero made to a witness who testified in grand jury proceedings regarding his drug charges. The enhancement requires that a “defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1.  The district judge held that this requirement could be satisfied in some circumstances without any intent to obstruct justice and found only that Ho-Romero’s threats could have been understood by the witness as attempts to obstruct justice. The district court made no finding as to whether Ho-Romero willfully obstructed or attempted to obstruct justice.

United States v. Lofton, 905 F.2d 1315 (9th Cir. 1990), held that a finding of intent to obstruct justice is required before the obstruction of justice enhancement can be applied. We conclude that Lofton is controlling in the threat context as in others, and that the district court therefore erred in applying the obstruction of justice enhancement without making any mens rea finding. 

This court long ago established that the term “willfully” in § 3C1.1 “contains a clear mens rea requirement,” which limits the Guideline’s scope to defendants who “consciously act with the purpose of obstructing justice.” Lofton, 905 F.2d at 1316–17 (emphasis in original) (quoting United States v. Stroud, 893 F.2d 504, 507 (2d Cir. 1990)). Relying on Lofton and the text of the Sentencing Guidelines, we have repeatedly affirmed that the “willfully” element in § 3C1.1 connotes a mens rea requirement.

In sum, Lofton controls here. The “willfully” element in § 3C1.1 requires a finding in threats cases that the defendant made a threat with specific intent to convey that the witness could be harmed if the witness participates in legal proceedings adversely to the defendant.

Where the district court applies the wrong legal standard and so makes no findings on a necessary element of a Guidelines provision, it is the district court, not this court, that must make those findings.

Whether the record is complete is beside the point. 7 Jimenez-Ortega and Ochoa-Gaytan—and many other cases—stand for the general principle that remand is appropriate in sentencing appeals where further factfinding is necessary to determine the proper Guidelines calculation.

This court has not established the standard for harmless error review of a district court’s Guidelines calculation under the circumstances present here–that is, where the district court did not make findings on an essential Guidelines element.

We take an approach to deriving a harmless error standard similar to Neder’s and so root our harmless error standard in the role of district courts with regards to Guidelines decisions. As the application of a Guidelines standard to a set of facts, the district court’s finding as to whether Ho-Romero acted with the conscious purpose of obstructing justice needed only to be supported by a preponderance of the evidence.

So, to conduct the harmless error analysis here, we proceed by assessing whether the district court would have abused its discretion if it concluded by a preponderance of the evidence that Ho-Romero did not “consciously act with the purpose of obstructing justice.” Lofton, 905 F.2d at 1317 (emphasis in original) (quoting Stroud, 893 F.2d at 507). If so, the error here is harmless; otherwise, it is not. By preserving the primary district court role in sentencing, this approach is appropriately stringent and helps ensure that the Guidelines process functions properly.

On the record at the sentencing proceeding, the district court would not have abused its discretion by determining that Ho-Romero did not act with the conscious purpose of obstructing justice. So the error here is not harmless.

That Ho-Romero was sentenced below the proper Guidelines calculation were the obstruction of justice enhancement excluded also does not obviate the need for remand.

Here, the district court applied the obstruction of justice enhancement without making necessary mens rea findings and so did not calculate the Guidelines sentence range correctly. The court would have calculated a different Guidelines range if it did not apply the two-level obstruction of justice enhancement. Using a different Guidelines range, the court may have arrived at a different sentence—for example, one below the new, lower Guidelines range to the same degree the previous sentence was below the higher Guidelines range originally calculated. 

Case on § 2A6.1(b)(4)(A) - substantial disruption of governmental functions.

In United States v. Brandendurg, --- F.4th ---, No. 24-5966 (9th Cir. 2025), the Court affirmed the district court’s imposition of a sentencing enhancement under U.S.S.G. § 2A6.1(b)(4)(A) for substantial disruption of governmental functions.

This appeal arises from Bryan Brandenburg’s bomb threats directed towards a Salt Lake City courthouse and a number of other governmental and educational institutions. Following his conviction by a jury, the district court imposed sentencing enhancements for substantial disruption of governmental functions and obstruction of justice and determined that he did not qualify for an adjustment for acceptance of responsibility. This opinion focuses on the enhancement related to “substantial disruption of . . . governmental . . . functions” under U.S. Sentencing Guideline (“U.S.S.G.”) 2A6.1(b)(4)(A). 

Brandenburg’s threats kickstarted a series of security measures to secure the courthouse, including creation of a threat working group, enhanced screenings, surveillance video reviews, and continuous patrols. However, he claims that the disruption did not relate to governmental functions because security is not a governmental function, the disruption was not public facing, and the courthouse continued operations. This crabbed view of the Guideline ignores the plain meaning of “disruption” and miscomprehends the role of courthouse security, which is an integral function of courthouse operations. Indeed, security functions performed behind the scenes, away from public view, are just as important as the prominent security apparatus the public sees upon entering a courthouse.

As then-Judge Kennedy wrote when he was a member of this court, “[t]he serenity of the court of appeals is not so debilitating that we fail to appreciate the real dangers posed by threats of violence directed at other courthouses and government facilities.” McMorris v. Alioto, 567 F.2d 897, 900 (9th Cir. 1978). Recent threats to judges and courthouses have only amplified this sentiment. We hold that a non-public-facing security response to a threat may qualify as a “substantial disruption of . . . governmental . . . functions” under Sentencing Guideline 2A6.1(b)(4)(A).

2/5/26: Safety valve decision

In United States v. Engstrom, --- F.4th ---, No. 24-1878 (9th Cir. 2025), the Court reversed the district court’s decision that Engstrom was eligible for safety valve relief under 18 U.S.C. § 3553(f), vacated the sentence imposed below the statutory minimum, and remanded for resentencing in a case in which Engstrom pleaded guilty to drug-related crimes.

This is a reversal in a government appeal on plain-error review.  The silverlining is that it contains helpful language we can use in our own plain-error cases. 

The government appeals the district court’s order sentencing Paul Engstrom to 46 months’ imprisonment for drug-related crimes. The district court sentenced him below the statutory minimum, granting him safety valve relief under 18 U.S.C. § 3553(f). But Engstrom was ineligible for safety valve relief since he failed to provide a complete debrief to the government before sentencing. He is also ineligible under Pulsifer v. United States, 601 U.S. 124 (2024), which applies to cases pending on direct appeal. We therefore reverse and remand to the district court for resentencing.

In this case, the district court imposed a below-minimum sentence after holding a resentencing hearing under Fed. R. Crim. P. 35.  The district court concluded it was authorized to hold a R. 35 resentencing because it clearly erred in sentencing Engstrom to 70 months during the initial sentencing. 

The parties dispute whether we can review the district court’s order holding a Rule 35 resentencing hearing. The government argues that it only forfeited its argument by not objecting. Thus, it asserts we should review for plain error. United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). But Engstrom argues that the government waived this challenge by not objecting, thus precluding our review. 

No waiver occurred. “[F]orfeiture is the failure to make a timely assertion of a right, whereas waiver is the intentional relinquishment or abandonment of a known right.” United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (cleaned up). “Forfeited rights are reviewable for plain error, while waived rights are not.” Id. If a party “invite[s] the error, and relinquishe[s] a known right, then the error is waived and therefore unreviewable.”

The government did not object to the district court’s Rule 35 hearing. But failing to object to a district court’s sentencing decision—or even affirmatively endorsing it—is not waiver. United States v. Depue, 912 F.3d 1227, 1233 (9th Cir. 2019). Waiver occurs only if “there [is] evidence indicating the [parties] knew of their rights and chose to relinquish them anyway.” Id.; see also Perez, 116 F.3d at 845 (collecting cases showing knowing relinquishment of right).

The district court’s choice to hold a Rule 35 resentencing hearing is not plain error.

The district court did not err when it concluded that it needed to resentence Engstrom. Under the safety valve provision, “a court is to sentence a defendant without regard to any statutory minimum if it finds that” the five statutory criteria in § 3553(f) are met. Pulsifer, 601 U.S. at 128 (cleaned up). The district court has an independent duty to determine whether the safety valve applies and, if so, it then sentences the defendant without regard to the statutory minimum for a particular offense.  

The district court’s actions were clear error of a “technical” kind under Rule 35(a). See Technical, OXFORD ENGLISH DICTIONARY (online ed. 2009) (sense 2.d) (involving “strict legal interpretation”); United States v. M. M., 23 F.4th 216, 221 (3d Cir. 2021) (“arithmetical and technical errors” are “easily identifiable and readily ascertained from the sentencing proceeding and judgment,” akin to misapplying “mandatory” sentencing conditions). The district court thought that it erred by considering the mandatory minimum once it made clear that it was giving Engstrom the benefit of the safety valve. See United States v. Mejia-Pimental, 477 F.3d 1100, 1109 (9th Cir. 2007). In such a situation, a district court has the latitude to conduct a Rule 35 rehearing to correct the technical error. If the district court wanted to “give [the benefit of the safety valve] to Engstrom,” then it needed to sentence him without regard to the mandatory minimum. Whether the district court was correct that Engstrom should have received the benefit of the safety valve (it was not), it had the latitude under Rule 35 to correct its perceived technical error of considering a mandatory minimum sentence for a defendant it thought should benefit from safety valve relief. Since the district court identified a clear error in the original sentencing hearing, conducting a Rule 35 rehearing was not error. The government’s argument thus fails on the first step of plain error review.

Engstrom is not eligible for safety valve relief for two reasons. First, Engstrom did not satisfy the statutory debrief requirement in § 3553(f)(5). Second, Pulsifer also precludes Engstrom from safety valve relief.

The district court failed to abide by the three “basic rules of statutory interpretation”: “(1) Read the statute; (2) read the statute; (3) read the statute!”  

To satisfy the debrief requirement, Engstrom therefore should have provided “all the information available to him, regardless of whether it was useful or already known to the government.”

[A] defendant can affirmatively meet the requirement—at least when the government refuses a meeting—without a formal debrief. But the statute still requires a defendant to affirmatively provide “all information and evidence the defendant has concerning the offense” to the government not later than the time of the sentencing hearing. § 3553(f)(5) (emphasis added). The district court read this requirement out of the statute, characterizing it as “no requirement at all,” proceeding as if virtually any truthful statement “given upon arrest,” a truthful “guilty plea allocution,” or “[a]dditional statements” may be enough. We reject this approach.

Engstrom thus did not meet the safety valve requirement. He did not provide a complete disclosure. The district court never asked him whether he had given all the information about the crime to the government, nor did the record support the existence of such disclosure. Engstrom never claimed that such disclosure occurred. Given these circumstances, Engstrom could not qualify for safety valve relief.

Engstrom cannot benefit from the safety valve for an additional reason. The Supreme Court’s decision in Pulsifer v. United States, 601 U.S. 124 (2024), forecloses such relief.  

Engstrom had a prior 3-point offense for conspiracy to distribute a controlled substance (but neither of the other two disqualifying offenses). Therefore, under Pulsifer, Engstrom is categorically ineligible for safety valve relief.

The district court rendered its sentence before the Supreme Court issued Pulsifer. But ordinarily “an error is plain if it is contrary to the law at the time of appeal.”

The opinion also contains a lengthy discussion of the Ex Post Facto Clause, its history, and its relationship to the due process notice requirement. 

At its core, the due process right to fair notice addresses “the unfairness of imposing new burdens on persons after the fact.” Id. at 270. It ensures that the government is not “free to change the law retroactively based on shifting political winds, [because] it could use that power to punish politically disfavored groups or individuals for conduct they can no longer alter.” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1146 (10th Cir. 2016) (Opinion of Gorsuch, J.). But absent any such concerns—as in this case—a federal court has an unflagging obligation to exercise the judicial power in its normal mode (i.e., retroactively). 

Applying Pulsifer here does not violate Engstrom’s due process right. The application of subsequent judicial decisions on direct appeal does not violate a defendant’s due process when, as here, Pulsifer’s interpretation of § 3553(f)(1) was foreseeable.