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.
