First, in United States v. Depape, --- F.4th ---, No. 24-3458 (9th Cir. 2026), the Court affirmed David Wayne DePape’s sentence, holding that where the sentencing court violates Fed. R. Crim. P. 32, by not affording a defendant the right to allocute, it can correct the error as an “arithmetical, technical, or other clear error” under Fed. R. Crim. P. 35(a), by reopening the sentencing proceeding, allowing the defendant to allocute, and then reimposing a sentence.
A criminal defendant has a right to personally address the sentencing court before any sentence is imposed. Fed. R. Crim. P. 32(i)(4)(A)(ii). But what happens when a sentencing court violates Rule 32 by not affording a defendant the right to allocute? Can the sentencing court correct the error as an “arithmetical, technical, or other clear error” under Federal Rule of Criminal Procedure 35(a)? Under the plain text of Rule 35(a), the answer is yes.DePape [] argues that Rule 35(a) is inappropriate here because resentencing after a belated allocution requires the reexercise of the sentencing court’s discretion. According to DePape, any error requiring the use of sentencing discretion falls out of Rule 35(a)’s scope. But that’s wrong. While it’s true that correcting a Rule 32(i)(4)(A)(ii) violation may result in reconsideration of the sentencing factors, nothing in Rule 35(a)’s text limits its scope in this way. Indeed, an “arithmetical error” involving the Guidelines calculations—which unquestionably falls within Rule 35(a)’s purview—often requires reapplication of the discretionary 18 U.S.C. § 3553(a) factors. And we’ve already held that a district court commits a “clear error of a technical kind” when it sentences a defendant based on a mandatory-minimum sentence when it thought safety-valve relief applied, and that the district court would have “had the latitude under Rule 35 to correct its perceived technical error” by re-sentencing under the discretionary § 3553 factors afresh.
Next, in United States v. Chavez-Echeverria, --- F.4th ---, No. 24-4723 (9th Cir. 2026), the Court affirmed Jessie Chavez-Echeverria’s sentence, holding that the district court properly increased his base offense level pursuant to U.S.S.G. § 2K2.1(a)(1) on the ground that his prior sentence for attempted first-degree assault under Or. Rev. Stat. §§ 163.185(1)(a), 161.405 qualifies as a crime of violence.
The only issue in this sentencing appeal is whether the district court erred when it increased Jessie Chavez-Echeverria’s base offense level because it concluded that his prior Oregon conviction for attempted first-degree assault qualifies as a crime of violence. Pursuant to the Sentencing Guidelines, crimes of violence include offenses that have as an element the “attempted use” of physical force against the person of another. Under our precedent, “attempted use” of physical force means a substantial step toward the use of physical force. United States v. Linehan, 56 F.4th 693, 702 (9th Cir. 2022). Because an Oregon conviction for attempted first-degree assault requires a defendant to take a substantial step toward causing serious physical injury to another, we affirm the sentence imposed by the district court.Resisting this conclusion, Chavez-Echeverria contends that attempted first-degree assault under Oregon law does not necessarily entail the “attempted use” of physical force because Oregon’s construction of “substantial step” is broader than the federal definition. More specifically, he argues that by citing Ninth Circuit caselaw, Linehan imported into the force clause analysis the so-called “probable desistance” test that we have applied to substantive criminal offenses. We disagree.The “probable desistance” test provides that “a suspect crosses the line separating preparation from attempt when his actions ‘unequivocally demonstrat[e] that the crime will take place unless interrupted by independent circumstances.’” We integrated the common-law probable desistance test into our substantial step inquiry for substantive criminal offenses in United States v. Buffington, 815 F.2d 1292, 1302 (9th Cir. 1987). Thus, when analyzing whether a defendant has attempted a substantive criminal offense, we have held that a defendant’s actions “constitute a substantial step” if they “unequivocally demonstrat[e] that the crime will take place unless interrupted by independent circumstances.”However, the Model Penal Code formulation of attempt liability, which Oregon has codified, see § 161.405(1), does not include a “probable desistance” test.Linehan adopted the established meaning of “attempt”— requiring a “substantial step”—without importing the probable desistance test that we have applied to substantive criminal offenses. See 56 F.4th at 702–03. Because attempted first-degree assault under Oregon law requires that a defendant take a substantial step toward causing serious physical injury, it qualifies as a crime of violence under the force clause. The district court did not err by increasing Chavez-Echeverria’s base offense level pursuant to § 2K2.1(a)(1).
