First, in United States v. Patterson, --- F.4th ---, No. 22-30088 (9th Cir. 2026), the Court affirmed the ACCA sentence imposed on James Patterson following his guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
James Patterson pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Finding that Patterson had previously committed three violent felonies on different occasions, the district court imposed a mandatory minimum sentence under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. § 924(e)(1). Patterson appeals, arguing first that his Fifth and Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 (2000), were violated because the judge, rather than a jury, determined that his prior offenses occurred on different occasions, and second that the court erred in holding that his prior Oregon convictions—two for third-degree assault and one for strangulation—are violent felonies. In light of the Supreme Court’s decision in Erlinger v. United States, 602 U.S. 821 (2024), we conclude that the district court violated Apprendi, but that the error was harmless. We also conclude that Patterson’s Oregon state felony convictions are violent felonies. We therefore affirm.The district court’s determination that Patterson committed his prior offenses “on occasions different from one another” made him subject to the ACCA, thereby increasing both the statutory minimum and the statutory maximum sentence for his violation of section 922(g). Patterson argues that the district court violated Apprendi because the indictment did not allege that the offenses were committed on different occasions and because the court found that fact itself instead of submitting the question to a jury.A sentencing court has no “authority [to] . . . assume for itself the responsibility of deciding whether [a defendant’s] past offenses differed enough in time, location, character, and purpose to have transpired on different occasions . . . with an eye toward increasing his punishment.”Applying Erlinger, we agree with both parties that the district court violated Apprendi by determining whether Patterson committed his prior offenses on different occasions. Making that determination required the court to ascertain facts beyond “a prior conviction and the thenexisting elements of that offense,” and Patterson did not admit those factsin his guilty plea. Erlinger, 602 U.S. at 839; see Mathis, 579 U.S. at 511. Our prior decision in Grisel is “clearly irreconcilable” with Erlinger and has “been effectively overruled” by it.Based on the record, we are confident that no reasonable jury could determine that offenses committed three years apart were committed on the same occasion. The Apprendi error was therefore harmless beyond a reasonable doubt.Patterson also disputes the district court’s determination that his Oregon assault and strangulation convictions are violent felonies constituting ACCA predicates.To determine whether an offense constitutes an ACCA predicate, we employ a “categorical approach” under which “the facts of a given case are irrelevant” and “[t]he focus is instead on whether the elements of the statute of conviction meet the federal standard.”We first consider Patterson’s third-degree assault conviction. In Oregon, third-degree assault, which carries a punishment of up to five years of imprisonment, is committed by anyone who, “[w]hile being aided by another person actually present, intentionally or knowingly causes physical injury to another.” Or. Rev. Stat. § 163.165(1)(e) (1995); see id. § 163.165(2) (defining third-degree assault as a class C felony); id. § 161.605 (specifying the punishment for class C felonies). Patterson’s conviction is an ACCA predicate because the Oregon statute requires that a defendant intentionally or knowingly cause “physical injury,” so it has “as an element the use . . . of physical force.”Finally, we reject Patterson’s argument that Oregon’s strangulation offense is not categorically violent.
Of note, Judge Berzon has a thorough concurrence regarding the application of the harmless-error standard in cases where no jury trial took place. She calls for en banc review, so we should be doing the same.
I write separately to express my continued concerns regarding this court’s application of the harmless error review standard established in Neder v. United States, 527 U.S. 1 (1999), to cases, like this one, in which no jury trial took place.“If the defendant did not admit an essential fact during his plea colloquy and evidence concerning the fact was not put to a jury, it violates Apprendi for a court to allow the government, postconviction, to introduce new evidence, find that evidence of the fact would have been introduced in a hypothetical jury trial, and then determine that the essential fact would have been found by the hypothetical jury had thenewly produced evidence been before it.” Guerrero-Jasso, 752 F.3d at 1204 (Berzon, J., concurring). This court’s precedents—now extended into the Erlinger context— permit the government to do just that. So I renew my call for this court to reconsider en banc “our Apprendi harmless error cases, particularly Zepeda-Martinez.” Id.
Next, in United States v. Anten, --- F.4th ---, No. 24-7261 (9th Cir. 2026), the Court affirmed Mark William Anten’s jury conviction for transmitting threats to injure another in interstate commerce, in violation of 18 U.S.C. § 875(c).
In an escalating barrage of emails to the Federal Bureau of Investigation (FBI), Mark William Anten eventually declared himself the “UNABOMBER” and stated, “I WILL UNABOMB THE LOS ANGELES FBI HQ.” A jury convicted Anten of transmitting threats to injure another in interstate commerce, in violation of 18 U.S.C. § 875(c). Anten now appeals, arguing that the district court’s jury instructions omitted an objective element required by the statute. We decide that the statute requires an objective element, but the jury instructions covered it. Anten’s other challenge, that the district court invaded the province of the jury, lacks merit too. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.We now confirm what we have previously assumed—that § 875(c) requires an objective threat element as well as a subjective mental state element.To parse out the elements of 18 U.S.C. § 875(c), we begin with the text. Section 875(c) states: “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” The text contains at least two elements: (1) “a communication be transmitted” and (2) “the communication contain a threat.”The statute specifies no “mental state with respect to these elements.” Id. In Elonis, the Supreme Court held that a mental state element must be read into § 875(c).In Counterman, the Court addressed the constitutional constraints around the mental state element in true threats cases generally, holding that “a mental state of recklessness is sufficient” to satisfy the First Amendment.A threat is a threat, whatever the speaker’s mental state. To secure a conviction under § 875(c), the government must prove that a defendant both made an objective “threat,” and that he did so with the necessary subjective mental state.We next examine what constitutes an objective “threat.” “What is a threat must be distinguished from what is constitutionally protected speech.” Watts v. United States, 394 U.S. 705, 707 (1969) (per curiam). Thus, the statement at issue must be a “true” threat. Id. at 708. “The ‘true’ in that term distinguishes what is at issue from jests, ‘hyperbole,’ or other statements that when taken in context do not convey a real possibility that violence will follow (say, ‘I am going to kill you for showing up late’).”The Supreme Court has provided less guidance on whose perspective must be considered to determine whether a statement is a “true threat”: the speaker’s, the victim’s, or a hypothetical reasonable person’s. Process of elimination reveals the answer.The answer cannot be the defendant speaker’s perspective, or the “threat” element would be no different than the defendant’s subjective mental state requirement. See id. (“Whether the speaker is aware of . . . the threatening aspect of the message is not part of what makes a statement a threat . . . .”). The answer also cannot be the victim’s perspective. The victim of a threat could be a particularly sensitive or paranoid individual, unable to determine whether the statement “taken in context” “convey[s] a real possibility that violence will follow.” See id. (citing Watts, 394 U.S. at 708) (italics added). Thus, whether a statement is a “threat” must be judged through the eyes of a reasonable person. Indeed, without a reasonable-person standard, a defendant could be convicted without ever having uttered a true threat—both the threat’s author and the threat’s target could have made unreasonable assessments.Having determined that § 875(c) requires both an objective and a subjective element, we now turn to the jury instructions. Anten is correct that the district court’s instructions could have been clearer. In describing what constitutes a “threat,” the instructions did not mention the “reasonable person” standard and did not define a “threat” as a “serious expression.” Nonetheless, we disagree with Anten that the district court omitted the statute’s objective threat element.We hold that § 875(c) requires both an objective threat element and a subjective mental state element. The district court did not err in its jury instructions, which included both elements. The district court also did not err in its response to the jury’s note. We therefore affirm.
