In United States v. Lopez, --- F.4th ---, No. 24-3268 (9th Cir. 2026), the Court vacated the sentence imposed on Jonathan Lopez following his guilty plea to possessing a firearm as a prohibited person, in violation of 18 U.S.C. § 922(g)(1), and remanded for resentencing.
Jonathan Lopez pleaded guilty to possessing a firearm as a prohibited person in violation of 18 U.S.C. § 922(g)(1). The district court enhanced his sentence, under U.S.S.G § 2K2.1(a)(2), after determining that Lopez had previously been convicted of two felony “crimes of violence,” under California Penal Code § 273.5,1 a domestic violence offense that punishes a person who “willfully inflicts corporal injury resulting in a traumatic condition.”Lopez appeals his sentence, arguing that a conviction under Cal. Penal Code § 273.5 is not a categorical crime of violence. We have previously held that § 273.5 is a categorical crime of violence, but these decisions are clearly irreconcilable with the Supreme Court’s ruling in Borden v. United States, 593 U.S. 420 (2021), and our recent en banc decision in United States v. Gomez, 165 F.4th 1199 (9th Cir. 2026) (en banc), cert. denied, No. 25-7193, 2026 WL 1377030 (U.S. May 18, 2026). Together, Borden and Gomez make clear that to qualify as a categorical crime of violence an offense requires a mens rea greater than recklessness as to the use of force directed at another person. Thus, in light of Borden and Gomez, we hold that convictions under Cal. Penal Code § 273.5 do not categorically qualify as crimes of violence.Our prior precedent holding that § 273.5 is categorically a crime of violence must be overruled under Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), because it is clearly irreconcilable with the Supreme Court’s opinion in Borden, and our en banc decision in Gomez. Thus, we hold that the district court incorrectly applied the sentencing enhancement for two felony crimes of violence in this case.In Borden, a plurality of the Supreme Court2 held that the elements clause does not include an offense that “requires only a mens rea of recklessness.” 593 U.S. at 423. Notably, the Court also defined what it meant by recklessness for purposes of the violent felony definition: reckless conduct requires that an individual “‘consciously disregard[] a substantial and unjustifiable risk’ attached to his conduct, in ‘gross deviation’ from accepted standards.” Id. at 427 (citing Model Penal Code § 2.02(2)(c)). Thus, as compared to the mental states of purpose and knowledge, “[r]ecklessness” is “less culpable” because it “instead involve[s] insufficient concern with a risk of injury.” Id.Before Borden, our circuit had also held that “crimes of recklessness cannot be crimes of violence.” Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130 (9th Cir. 2006) (en banc). But we did not distinguish which element of a crime required a mens rea greater than recklessness to qualify as a crime of violence. This distinction is important because crimes with multiple elements may require a different mens rea with respect to each. For example, a battery statute may require that “the force involved” is “volitional,” meaning that an “involuntary motion” would not qualify. Voisine v. United States, 579 U.S. 686, 692–93 (2016). But even if the initial act of force is intentional, the defendant may have acted without intending that the force be directed at anyone else; a defendant may intentionally throw an object, but not know, or intend, that the object would hit another person. Even then, however, the defendant may be guilty of battery if the thrown object hits another person. In such a scenario, the mens rea with respect to the initial act (the throw) is intent, though the statute is “indifferent as to whether the actor has the mental state of intention, knowledge, or recklessness with respect to the harmful consequences of his volitional conduct.”Borden makes clear that, to qualify as a crime of violence, an offense requires a mens rea greater than recklessness (e.g., purpose or knowledge)4 as to the use of force directed at another person—rather than merely any volitional act involved with the crime.Accordingly, the elements clause includes only those crimes that require a mens rea greater than recklessness as to the use of violent force directed at another person—meaning that when the defendant used force, he intended or knew that the force would touch another. 5 Borden explains that “violent felon[ies]” are “best understood to involve not only a substantial degree of force, but also a purposeful or knowing mental state—a deliberate choice of wreaking harm on another, rather than mere indifference to risk.”In sum, to qualify as a categorical “crime of violence,” an offense must require a mens rea greater than recklessness both as to the use of force sufficient to cause pain or injury and to the fact that the use of force is directed at another person.While the text of Cal. Penal Code § 273.5 may appear to suggest that the statute requires that the defendant intentionally injure the victim, California appellate courts have consistently explained that § 273.5 “requires only the mens rea of intending to do the assaultive act” that is likely to result in bodily harm and does not require a separate intent to cause injury.Cal. Penal Code § 273.5(a) is not a categorical crime of violence because the offense “requires only the mens rea of intending to do the assaultive act,” and does not require intent, or knowledge, that the use of force is directed at another.As a three-judge panel, we are generally bound by our circuit’s precedent. Kohler v. Presidio Int’l, Inc., 782 F.3d 1064, 1070 (9th Cir. 2015). However, we “should reject the prior circuit” precedent when it is “clearly irreconcilable with the reasoning or theory of intervening higher authority.” Miller, 335 F.3d at 893. Our previous caselaw holding that § 273.5 is categorically a crime of violence is clearly irreconcilable with Borden and Gomez.Convictions under California Penal Code § 273.5 are not crimes of violence. We overrule our prior precedent to the contrary under Miller v. Gammie. See 335 F.3d at 889. The district court, while properly applying our prior precedent, should not have applied U.S.S.G. § 2K2.1(a)(2) to enhance to Lopez’s sentence. We REMAND with instructions to the district court to resentence Lopez consistently with this opinion.
