3/23/26: Case on U.S.S.G. § 2K2.1(b)(5)

n United States v. Ferrari, --- F.4th ---, No. 24-6007 (9th Cir. 2026), the Court affirmed the district court’s application of a sentencing enhancement for engaging in firearms trafficking in a case in which Christian Ferrari pleaded guilty to four counts of willfully dealing firearms without a license in violation of 18 U.S.C. § 922(a)(1)(A).

Pursuant to § 2K2.1(b)(5) of the 2021 United States Sentencing Guidelines, a sentencing enhancement applies “[i]f the defendant engaged in the trafficking of firearms.” U.S.S.G. § 2K2.1(b)(5) (2021). Application Note 13 states that “Subsection (b)(5) applies . . . if the defendant . . . knew or had reason to believe that” the defendant disposed “of a firearm to an individual (I) whose possession or receipt of the firearm would be unlawful; or (II) who intended to use or dispose of the firearm unlawfully.”1 U.S.S.G. § 2K2.1, cmt. n.13(A) (2021). The question presented is whether Application Note 13 requires that the person to whom the defendant transferred the firearm in fact was an unlawful possessor or intended to use the firearm unlawfully. We hold that it does not. Accordingly, we affirm.

Ferrari appeals the district court’s application of the firearms trafficking enhancement. On appeal . . . . Ferrari argues that in order to apply the firearms trafficking enhancement, it must also be true that the undercover agents were unlawful possessors or intended to use the firearms unlawfully. Ferrari’s argument largely relies on out of circuit cases interpreting similar language in two federal criminal firearms statutes.

The government responds with two arguments. First, the government contends that Ferrari did not preserve his argument for appeal, and thus plain error review applies. Second, the government argues that Application Note 13 requires only that the defendant “had reason to believe” the transferee was an unlawful possessor or intended to use the firearm unlawfully and does not require it to be true that the transferee was an unlawful possessor or intended to use the firearm unlawfully. We address both arguments in turn.

[As to waiver,] [t]he government’s argument conflicts with United States v. Hong, 938 F.3d 1040 (9th Cir. 2019). Hong held that a defendant’s arguments challenging the applicability of a sentencing enhancement may “shift[] on appeal” as long as the “basic claim remains the same”: the sentencing enhancement does not apply.

This case is like Hong, and the government makes no attempt to distinguish it. On appeal Ferrari presses the same basic claim that he raised below: “the [firearms trafficking] enhancement does not apply to him because his case does not fit the terms of Application Note 13.”

Because Ferrari preserved his claim challenging the applicability of the firearms trafficking enhancement, we review de novo Ferrari’s argument that the district court misinterpreted Application Note 13. 

Next, the Court held that "[a]pplication Note 13’s text does not require it to be true that the transferee was an unlawful possessor or intended to use the firearm unlawfully."

Nothing else in Application Note 13 requires that what the defendant “had reason to believe” must also be true. Ferrari does not identify a subsection that requires the transferee to in fact be an unlawful possessor, or to actually intend to use the firearm unlawfully. Subsection (ii) of Application Note 13(A) only requires that the defendant “had reason to believe” as much. Nor does Ferrari point to any specific language in the text that would require it to be true.

Because there is no reason to depart from the plain text, we hold that Application Note 13 to § 2K2.1(b)(5) of the 2021 United States Sentencing Guidelines does not require that what the defendant had reason to believe was true. On appeal, Ferrari does not dispute that he had reason to believe the undercover agents were unlawful possessors or intended to use the firearms unlawfully.  

3/18/26: Second Amendment case on 922(g)(9)

In United States v. Martinez, --- F.4th ---, Nos. 23-432, 23-2417, 23-3426 (9th Cir. 2026), the Court affirmed three appellants’ convictions under 18 U.S.C. § 922(g)(9), which prohibits a person convicted of a misdemeanor domestic violence offense from possessing a firearm or ammunition.

"Appellants’ facial challenge to § 922(g)(9) [] fails. We conclude that § 922(g)(9) may be constitutionally applied to individuals who have been previously convicted of misdemeanors based on them having used criminal force against their domestic partners."

"We similarly hold here that § 922(g)(9) categorically disarms individuals convicted of a misdemeanor crime of domestic violence. Like § 922(g)(1), § 922(g)(9) reflects Congress’s determination that members of a class of convicted criminals are dangerous. Therefore, we hold that we need not engage in a misdemeanor-by-misdemeanor inquiry under § 922(g)(9). We are not alone in so holding. As we do here, the Second Circuit rejected a defendant’s as-applied challenge to § 922(g)(9) based on Congress’s power to disarm groups of people without distinguishing between the nature of the offense underlying particular convictions."

3/16/26: Case on U.S.S.G. § 2L1.2(b)(3)

In United States v. Torres-Gonzalez, --- F.4th ---, No. 25-2897 (9th Cir. 2026), the Court affirmed the sentence imposed on Cruz Torres-Gonzalez for his 2024 conviction for illegal reentry into the United States in violation of 8 U.S.C. § 1326.

In 2014, Cruz Torres-Gonzalez was convicted of illegal reentry into the United States in violation of 8 U.S.C. § 1326 and of making false statements to the federal officers who arrested him in violation of 18 U.S.C. § 1001. He was sentenced to 35 months on each count in the same proceeding. The sentences ran concurrently. 

n 2024, Torres-Gonzalez was convicted once again of illegal reentry. At his sentencing, the district court applied two offense-level enhancements pursuant to § 2L1.2 of the Sentencing Guidelines. U.S. Sent’g Guidelines Manual § 2L1.2 (U.S. Sent’g Comm’n 2024) (U.S.S.G.). At issue in this appeal is the enhancement directed by U.S.S.G. § 2L1.2(b)(3), which provides a specific offense-level enhancement based upon the length of the sentence imposed for Torres-Gonzalez’s prior non-reentry conviction that occurred after he was first ordered removed from the United States.

Torres-Gonzalez argues that the district court erred by applying an eight-level enhancement based on his prior false-statement conviction. He does not dispute that an eight-level enhancement is triggered by a sentence of two years or more for prior non-reentry convictions, U.S.S.G. § 2L1.2(b)(3)(B), but he argues that the length of the sentence for his false-statement offense was actually determined by the sentence he received for his 2014 reentry conviction. We conclude that the district court properly interpreted the Sentencing Guidelines when it determined the enhancements applicable at Torres-Gonzalez’s 2024 sentencing. Accordingly, we affirm the sentence imposed by the district court.

It is undisputed that the sentence Torres-Gonzalez received for the false-statement offense in 2014 was due to the operation of the Guidelines’ “grouping” rules. Where a defendant has been convicted of multiple counts, U.S.S.G. § 3D1.1, the Guidelines direct that counts that are “closely related” because they “involv[e] substantially the same harm” should be “grouped.” U.S.S.G. § 3D1.2. Generally, the count with the highest offense level is the offense level for the group, U.S.S.G. § 3D1.3(a), and the offense level applicable to the grouped offenses is used to determine the appropriate sentence. U.S.S.G. § 3D1.5. The “total punishment” applies concurrently to each count in a group. 

On appeal, Torres-Gonzalez again argues that imposition of the eight-level enhancement was erroneous. He reasons that the 35-month sentence he received in 2014 for making a false statement was determined by his § 1326 felony illegal reentry conviction because the charges were grouped and the § 1326 charge carried the highest offense level. He characterizes § 1326 as “the type of offense excepted from” the U.S.S.G. § 2L1.2(b)(3) enhancement provision because the Guidelines specify a four-level enhancement for prior § 1326 convictions and a sliding-scale enhancement in subsection (b)(3) only for other felony convictions entered after an initial § 1326 conviction. Thus, according to Torres-Gonzalez, the 35-month sentence he received for making a false statement was actually predicated upon the § 1326 conviction, and that offense should not be used to determine the appropriate enhancement added pursuant to U.S.S.G. § 2L1.2(b)(3). Torres-Gonzalez urges us to direct the district court to apply the residual four-level enhancement, U.S.S.G. § 2L1.2(b)(3)(D), on remand because that enhancement is not determined by the length of a prior sentence.  

As the district court recognized, the sentence for Torres-Gonzalez’s non-reentry offense was likely higher than it would have been if he had been sentenced solely for making a false statement to a federal officer because the 2014 sentencing court was persuaded that a 35-month sentence was needed to deter him from continuing to enter the country illegally. Nevertheless, Torres-Gonzalez received a 35- month sentence for the false-statement conviction, and the district court faithfully applied the eight-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(3)(B). Contrary to Torres-Gonzalez’s suggestion, his sentence for the false-statement conviction was not “replaced” by the sentence for the reentry offense; rather, the charges were grouped consistent with the Guidelines. We discern no error in the district court’s reading of the Guidelines’ text.

3/9/26: Case on U.S.S.G. § 2D1.1(b)(12) - maintaining a premises for the purpose of manufacturing or distributing a controlled substance

In United States v. Tekola, --- F.4th ---, No. 24-5467 (9th Cir. 2026), the Court affirmed Isaac Tekola’s sentence for possession with intent to distribute fentanyl, methamphetamine, and Alprazolam in a case in which the district court imposed an enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for the purpose of manufacturing or distributing a controlled substance.

Tekola challenges the district court’s finding that he maintained his apartment “for the purpose of manufacturing or distributing” drugs, suggesting that because the apartment was his primary residence, drug trafficking was not a “primary or principal” use of the apartment. We reject this argument, which runs counter to the purpose of § 2D1.1(b)(12), and hold that the district court acted squarely within its discretion in applying the enhancement.

[C]ourts have repeatedly upheld sentencing enhancements under § 2D1.1(b)(12) where defendants regularly used the premises both as a primary residence and for substantial drug trafficking activities.

In light of this guidance from the enhancement’s history and purpose, the commentary, and decisions from previous courts, the district court acted well within its discretion in applying the § 2D1.1(b)(12) enhancement. The government pointed to a litany of drug transactions made at Tekola’s apartment. A search of the apartment turned up nearly $13,000 in cash; various drug-dealing “tools of the trade” including a pay-owe sheet, baggies, a vacuum sealer, and scales with white residue; and a large stash of various drugs in his bedroom.

We [] follow our sister circuits in affirming the application of § 2D1.1(b)(12) where a defendant regularly uses his home for substantial drug trafficking activity. See Johnson, 737 F.3d at 448; Miller, 698 F.3d at 706-07; Flores-Olague, 717 F.3d at 533. Here, overwhelming evidence suggests that Tekola used his apartment as the central hub for his drug-trafficking business, and the district court acted well within its discretion in imposing the § 2D1.1(b)(12) enhancement.

3/3/26: Case on seaman’s manslaughter under 18 U.S.C. § 1115

In United States v. Boylan, --- F.4th ---, No. 24-3077 (9th Cir. 2026), the Court affirmed the conviction of Jerry Boylan, the former captain of the M.V. Conception, for seaman’s manslaughter under 18 U.S.C. § 1115, arising from a fire onboard that killed thirty-four people.

On appeal, Boylan argued that the district court’s jury instruction on § 1115 misstated the law, as it provided that guilt could follow if Boylan “engaged in misconduct and/or acted with gross negligence.” According to Boylan, the term “misconduct” permitted the jury to convict him of something less that gross negligence, contrary to what § 1115 requires.

The Court held that "§ 1115 does not require gross negligence. Known asseaman’s manslaughter, § 1115 provides that “[e]very captain . . . by whose misconduct, negligence, or inattention to his duties on [a] vessel the life of any person is destroyed . . . shall be . . . imprisoned not more than ten years.” 18 U.S.C. § 1115. Nowhere in the text is “gross negligence” required.

"Given a captain’s heightened obligations, an ordinary negligence standard is sensible in the seaman’s manslaughter context."

"Because the district court’s instruction held the government to a higher standard than what § 1115 requires, and the evidence of gross negligence was overwhelming, there was no reversible error."