8/24/26: reasonable suspicion and post-trial acceptance of responsibility

In United States v. Aguilera, --- F.4th ---, No. 25-3366 (9th Cir. 2026), the Court affirmed Fernando Aguilera’s conviction following a bench trial for being a felon in possession of ammunition under 18 U.S.C. § 922(g)(1), vacated his sentence, and remanded for resentencing.

This case arises from a police encounter following reports of an active shooter in San Francisco’s Mission District. Defendant-Appellant Fernando Aguilera was convicted of being a felon in possession of ammunition under 18 U.S.C. § 922(g)(1). His appeal raises two issues. First, Aguilera appeals the district court’s denial of his motion to suppress the ammunition evidence, asserting officers did not have reasonable suspicion to conduct a warrantless seizure of his person. Second, Aguilera appeals his sentence, arguing the district court erred by denying him an offense level reduction for acceptance of responsibility and relying on impermissible sentencing factors. 

Under the Fourth Amendment, law enforcement officers must have reasonable suspicion to conduct an investigatory stop of an individual. United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975). “Reasonable suspicion is defined as ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’” United States v. Cotterman, 709 F.3d 952, 968 (9th Cir. 2013) (en banc) (quoting United States v. Cortez, 449 U.S. 411, 417– 18 (1981)). Courts measure reasonable suspicion “by what the officers knew before they conducted their search [or seizure],” Florida v. J.L., 529 U.S. 266, 271 (2000), and assess the totality of the circumstances, rather than certain factors in isolation, see United States v. Valdes-Vega, 738 F.3d 1074, 1078–79 (9th Cir. 2013) (en banc) (citing United States v. Arvizu, 534 U.S. 266, 273–74 (2002)). Reasonable suspicion requires more than a hunch, but “considerably less than proof of wrongdoing by a preponderance of the evidence.”

The district court properly found Aguilera’s seizure was supported by reasonable suspicion. The court considered the collective knowledge of the officers, see United States v. Ramirez, 473 F.3d 1026, 1032 (9th Cir. 2007), and the totality of the circumstances, in concluding the officers reasonably suspected that Aguilera was the shooter who fired a gun outside El Trebol. Eyewitnesses identified the shooter to the responding officers, and Officer Hurtado visually identified a person matching the suspect’s description, location, and direction of travel. At one point, Officer Hurtado was as little as five feet from the suspect.

In light of the totality of the circumstances described above and the officers’ collective belief that the suspect had a loaded firearm, it is clear the officers had reasonable suspicion to detain the individual hiding behind a white fence in a manner that did not jeopardize their safety. See Wardlow, 528 U.S. at 124–25 (citing Cortez, 449 U.S. at 418) (“[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.”). Contrary to what Aguilera suggests, Officer Frisk had a clear view of Aguilera’s clothing through “a large gap in the fence, and pointed his flashlight directly at defendant before detaining him,” and therefore, he would have been able to see if Aguilera matched the eyewitness descriptions. Thus, we agree with the district court’s findings that officers possessed adequate reasonable suspicion to detain Aguilera

Aguilera argues his sentence should be vacated because the district court applied the wrong legal standard and relied on impermissible factors in denying the acceptance of responsibility reduction. . . .“Whether or not the defendant has accepted responsibility . . . is a factual finding that we review for clear error.” Id. Because we conclude the district court applied the wrong legal standard, we remand for resentencing. 

“When a defendant’s ‘statements and conduct make it clear that his contrition is sincere, he is entitled to the reduction.’” United States v. Green, 940 F.3d 1038, 1042 (9th Cir. 2019) (cleaned up) (quoting United States v. Cortes, 299 F.3d 1030, 1038 (9th Cir. 2002)). Although “there can be a fine line between putting on a defense at trial, and expressing contrition at sentencing,” this determination “is not a binary, ‘either/or’ proposition.”

Like the decision to go to trial or a constitutional challenge to a criminal statute, a motion to suppress evidence under the Fourth Amendment “is an assertion of a constitutional right.” United States v. Vance, 62 F.3d 1152, 1157 (9th Cir. 1995). In Vance, the panel noted that a district court erred by “holding it against [the defendant] that he moved to suppress evidence before pleading guilty.” Id. We have repeatedly emphasized that “a sentencing court cannot consider against a defendant any constitutionally protected conduct.” Hernandez, 894 F.3d at 1109 (citation omitted) (emphasis in original). Indeed, “a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment.” 

In the full context of the proceedings, it is apparent that the district court misapprehended the law regarding the acceptance of responsibility reduction and held Aguilera’s constitutionally protected conduct against him.

It is apparent from the record that the district court believed either that a defendant must unconditionally plead guilty to be eligible for the reduction, or that it could consider Aguilera’s constitutional motions and decision to go to trial against him. As discussed above, this reflects a misapprehension of the relevant legal standard.

“To establish harmlessness, the Government must show that ‘it is more probable than not’ that the error did not affect the sentence.” “When a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”

Here, the district court acknowledged what the Guidelines range would have been with the reduction, 41 to 51 months, and without it, 51 to 63 months, but analyzed only the 51- to 63-month range. The court considered the standard sentencing factors and imposed a below-range sentence of 45 months. Because the district court did not conduct a separate analysis of the alternative Guidelines range, it did not satisfy the requirements for harmless error.

A court “must explain . . . the reason for the extent of a variance” which “necessarily is different when the range is different.” Id. Contrary to our dissenting colleague’s position, a district court’s mere acknowledgment of an alternative Guidelines range or “mere statement that it would impose the same above-Guidelines sentence no matter what the calculation” is not sufficient to establish harmless error. Id. Additionally, the probation office’s recommended sentence, 41 months, was at the low end of the lower range. Thus, a reasonable probability exists that the court may have imposed a lower sentence had it started from the 41 to 51-month range. 

8/21/26: Guidelines commentary and U.S.S.G. § 2C1.1(b)(3)

In United States v. Cisneros, --- F.4th ---, No. 24-6774 (9th Cir. 2026), the majority affirmed a sentence imposed on Felix Cisneros, Jr., a former special agent for the Department of Homeland Security, who was convicted of taking bribes in exchange for misusing a confidential law enforcement database to help criminals and fraudulently attempting to bring an inadmissible noncitizen into the country through immigration parole.

The issue was whether the district court erred in relying on the Guidelines' commentary to impose an enhancement under § 2C1.1(b)(3) for a bribery offense that “involved an elected public official or any public official in a high-level decision-making or sensitive position.”

Application Note 4(A) to § 2C1.1 defines “high-level decision-making or sensitive position” as “a position characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process.” Then, Application Note 4(B) provides examples of a “high-level decision-making position” and, separately, examples of a “sensitive position.” The examples of a “sensitive position” include “a juror, a law enforcement officer, an election official, and any other similarly situated individual.” 

Cisneros was a law enforcement officer.  So, if the district court properly deferred to Application Note 4, then it correctly determined that the enhancement applied.  The majority held that it did:

We may not defer to the Sentencing Commission’s commentary interpreting the Sentencing Guidelines unless the guideline itself is genuinely ambiguous. United States v. Castillo, 69 F.4th 648, 655–56 (9th Cir. 2023). Before concluding that the guideline is genuinely ambiguous, “a court must exhaust all the ‘traditional tools’ of construction.

Ambiguity alone does not warrant deference. The agency’s interpretation must be reasonable, which means it “come[s] within the zone of ambiguity the court has identified after employing all its interpretive tools.” Kisor, 588 U.S. at 575–76. And the “character and context of the agency’s interpretation” must “entitle[] it to controlling weight,” which it does if “(i) the interpretation is the agency’s official position, rather than any more ad hoc statement not reflecting the agency’s views; (ii) the interpretation implicates the agency’s substantive expertise; and (iii) the interpretation reflects the agency’s fair and considered judgment.”

We hold that U.S.S.G. § 2C1.1(b)(3)’s text is ambiguous as to whether the enhancement applies only to a “sensitive position” that is also “high-level,” that the term “sensitive position” is ambiguous, and that on both questions Application Note 4 warrants deference because it reasonably interprets the guideline. Because Cisneros, as a law enforcement officer, held a “sensitive position” identified in Application Note 4(B), the district court did not err in applying the enhancement.

With two semantically and grammatically plausible readings, we conclude that the guideline is genuinely ambiguous as to whether a “sensitive position” must be “high-level” for the enhancement to apply. See Castillo, 69 F.4th at 655–56. We therefore turn next to the commentary.

Application Note 4(B) to § 2C1.1 provides separate examples of a “high-level decision-making position” and of a “sensitive position.” This structure shows that the Commission did not intend “high-level” to modify “sensitive position.” Because this reading is consistent with both grammatical rules we reviewed above, we defer to it as a reasonable interpretation within the guideline’s zone of ambiguity. Cisneros need not have held a “high-level” position for the enhancement to apply.

[A]fter carefully considering the parties’ arguments and the tools of construction, we agree with our colleague on the district court that the term “sensitive position” as used in § 2C1.1(b)(3) is genuinely ambiguous.

Having found the guideline ambiguous, we may now turn, as the district court did, to the commentary. Application Note 4 warrants deference so long as it provides a reasonable construction of the guideline. Castillo, 69 F.4th at 655–56. We conclude that it does.

Even if rank-and-file law enforcement officers do not make the final decisions on some matters, they still have “substantial influence over the decision-making process.” U.S.S.G. § 2C1.1 cmt. n.4(A) (defining the umbrella term “high-level decision-making or sensitive position”). Thus, the zone of ambiguity of the term “sensitive position” comfortably includes sworn law enforcement officers entitled to make arrests.  Cisneros had arrest authority, which would be enough on its own for a “sensitive” position. See id. at 83. He also could initiate immigration parole requests, an authority he was convicted in this case of misusing. Accordingly, Application Note 4 is a reasonable interpretation of § 2C1.1(b)(3) as applied to Cisneros. The district court did not err in applying the enhancement.

Interestingly, Judge Rawinson's dissent is not about the merits.  Instead, she dissented "because this opinion essentially endorses the district court's cavalier disregard of our mandate. A mandate from this court is not a suggestion or a recommendation. Rather, it is a command to the district court to perform a specific task or take a particular action.  Indeed, the proper resolution for the failure of a district court to follow our mandate, is a remand for the district court to comply."

Whether I agree or disagree with the analysis conducted by the majority, or whether I conclude that the majority employed all available interpretive tools is not the point. The point is that we should not be conducting this analysis in the first instance, especially after we directed the district court to first perform the analysis. As noted on many occasions, "we are a court of review, not of first view."

8/17/26: Case on the authority to appoint Acting United States Attorneys

In United States v. Jackson, et al., --- F.4th ---, No. 25-6470 (9th Cir. 2026), the Court affirmed the district court’s order disqualifying Sigal Chattah, the putative Acting United States Attorney for the District of Nevada, from supervising the prosecutions of the defendants in three cases; and dismissed for lack of appellate jurisdiction defendants’ cross-appeals from the district court’s denial of their motions to dismiss their indictments. 

These cases present the question whether the Attorney General can make someone an Acting United States Attorney—bypassing the usual requirement that a U.S. Attorney be confirmed by the Senate—by designating that person as the first assistant to an already-vacant office of U.S. Attorney. We hold that the Attorney General cannot do so. Although the Federal Vacancies Reform Act of 1998 (FVRA) provides that a first assistant automatically succeeds to a vacant office, that rule of automatic succession applies only to a first assistant who held that position at the time the vacancy arose; it does not apply to a first assistant who never served under a validly appointed official. 5 U.S.C. § 3345(a)(1). Nor can the Attorney General create a de facto Acting U.S. Attorney by delegating all of the functions and duties of the U.S. Attorney to someone else. The FVRA is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office,” so it prohibits a complete delegation of all of the U.S. Attorney’s powers to a single person. Id. § 3347.

Applying those principles, we affirm the district court’s order disqualifying Sigal Chattah, the putative Acting U.S. Attorney for the District of Nevada, from supervising the prosecutions of the defendants in these cases. We dismiss defendants’ cross-appeals because we lack appellate jurisdiction to review the district court’s denial of defendants’ motions to dismiss their indictments.

The government argues that when the Attorney General designated Chattah as the first assistant to the vacant office of U.S. Attorney, section 3345(a)(1) automatically elevated her to Acting U.S. Attorney. But section 3345(a)(1) does not apply to an official who, like Chattah, was not serving as the first assistant at the time the vacancy arose. In the alternative, the government argues that Chattah may exercise all of the powers of the U.S. Attorney by delegation from the Attorney General. But the FVRA is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency.” 5 U.S.C. § 3347(a). The Attorney General therefore cannot rely on general delegation statutes to make Chattah the de facto U.S. Attorney.

The government’s primary argument on appeal is that Chattah automatically became the Acting U.S. Attorney under the FVRA when the Attorney General designated her as the first assistant to the vacant office of U.S. Attorney. The district court rejected that theory, concluding that “subsection (a)(1) operates only on first assistants in place when vacancies begin.” We agree. The FVRA’s text and structure are unambiguous: The statute does not permit the executive to fill an existing vacancy by designating a new first assistant.

Because the statutory text is unambiguous, our analysis could stop here. See Milner v. Department of the Navy, 562 U.S. 562, 574 (2011) (“Legislative history, for those who take it into account, is meant to clear up ambiguity, not create it.”). But the parties also extensively discuss the legislative history and executive practice under the statute, so we address those matters for the sake of completeness. The legislative history is fully consistent with our conclusion that only first assistants already in place at the time a vacancy arose can serve as acting officers under subsection (a)(1). Thus, even if we were to consider legislative history, it would only reinforce our reading of the statute. And although the government points to some evidence of contrary Executive Branch practice following the passage of the FVRA, that evidence does not persuade us to depart from the unambiguous meaning of the statutory text.

Although Chattah was not lawfully serving as the Acting U.S. Attorney, the government argues that the Attorney General validly delegated to her the authority to oversee the U.S. Attorney’s office. That argument is foreclosed by the FVRA’s exclusivity provision. 5 U.S.C. § 3347(a). The general delegation statutes governing the Department of Justice do not allow the Attorney General to appoint Chattah as a de facto U.S. Attorney despite her ineligibility under the FVRA.

We need not decide what kinds of more limited delegations might be permissible in the absence of a Senate-confirmed U.S. Attorney. To resolve these cases, we hold only that that the Attorney General’s authority to delegate does not permit him to vest all of the functions and duties of a vacant office in a single person. See Giraud, 160 F.4th at 406.

Whether Chattah was lawfully appointed the Acting U.S. Attorney under the FVRA or lawfully delegated the functions of that office does not tell us the remedy to which defendants are entitled for an unlawful appointment, and, conversely, we need not answer the remedial question to conclude that Chattah was not lawfully appointed. See Gantt, 194 F.3d at 998. Because “[r]eview of one order does not require review of the other,” we lack jurisdiction over the cross-appeals.

8/3/26: Honest services fraud and federal programs bribery

In United States v. Ridley-Thomas, --- F.4th ---, No. 23-2200 (9th Cir. 2026), the Court affirmed Mark Ridley-Thomas’s convictions for one count of conspiracy in violation of 18 U.S.C. § 371, one count of bribery concerning programs receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B), and five counts of honest services mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, 1346, and 2(b).

Mark Ridley-Thomas (Ridley-Thomas), a former Supervisor on the Los Angeles County Board of Supervisors (Board of Supervisors), appeals his convictions for one count of conspiracy in violation of 18 U.S.C. § 371, one count of bribery concerning programs receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B), and five counts of honest services mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, 1346, and 2(b). The convictions stemmed from charges related to a quid pro quo scheme between Ridley-Thomas and Marilyn Flynn (Flynn), the then-Dean of the School of Social Work at the University of Southern California (USC), for the benefit of Ridley-Thomas’s son Sebastian. Of the Government’s honest services fraud and bribery quid pro quo theories, the jury rejected all but one: that Flynn facilitated a $100,000 donation of university funds to the nonprofit that employed Sebastian in exchange for Ridley-Thomas voting in favor of a “telehealth contract” between the County and USC. For the reasons discussed below, we affirm the convictions.

Ridley-Thomas challenges the Government’s theory of honest services fraud under 18 U.S.C. § 1346 and federal programs bribery under 18 U.S.C. § 666(a)(1)(B). He argues that the Government relied on a legally invalid “thing of value” as an element of both honest services fraud and bribery. According to Ridley-Thomas, § 1346 criminalizes only traditional bribery and kickback schemes, and the “secret funneling” scheme on which the Government relied as one of the quids—the transfer of $100,000 from RidleyThomas’s ballot committee through USC to United Ways and PRPI for Sebastian’s benefit—does not fit within this traditional paradigm of criminal bribery schemes. RidleyThomas also contends that this funneling scheme cannot constitute a “thing of value” under § 666(a)(1)(B). We disagree.

Jurors were instructed that to convict Ridley-Thomas of honest services mail fraud, the Government was required to prove that he “devised or knowingly participated in a scheme or plan to deprive the residents of the County of Los Angeles of their right of honest services;” and that “[t]he scheme or plan consisted of a bribe in exchange for at least one official act by [Ridley-Thomas].” Ridley-Thomas contends that this theory of honest services fraud was legally invalid because perceived reputational benefits cannot constitute a “thing of value” under Skilling. Additionally, he asserts that the Government failed to prove that he engaged in deception that was material to the residents of Los Angeles County. We consider each of these challenges in turn.

Although admittedly not the usual bribery scheme involving the transfer of money to a public official, the transfer of $100,000 from Ridley-Thomas to USC to United Ways for Sebastian’s benefit constitutes a “thing of value” under our precedent. The Government’s evidence established that Ridley-Thomas subjectively valued the ability to transfer $100,000 from his campaign fund to United Ways, specifically to a program that would benefit Sebastian by providing him with employment after he resigned from the legislature. The evidence showed that Ridley-Thomas was aware of the ethics inquiry that coincided with Sebastian’s resignation, and that he valued the ability to indirectly transfer funds for Sebastian’s benefit, swiftly, while concealing the source of the funds. Ridley-Thomas argues strenuously that he broke no campaign finance laws by making this payment, and that because he could have made the donation directly, the funneling service provided by USC cannot constitute a “thing of value.” But this argument overlooks the Government’s evidence showing that Ridley-Thomas attempted to send a payment directly from his campaign fund to another non-profit where Sebastian hoped to be employed, and the funds were returned because the non-profit director was concerned about “nepotism and being seen as doing special favors for special people.” Thus, contrary to Ridley-Thomas’s contention that he could have made the payment directly himself, the Government’s evidence showed that Ridley-Thomas needed a third-party intermediary to effectuate the transfer. Flynn supplied that service.  

Ridley-Thomas contends that the Government’s theory of bribery was predicated on his desire to avoid the nepotistic optics that had hampered his previous attempt to provide $100,000 to AACEP through Community Partners. This argument misstates the Government’s theory regarding the alleged “thing of value.” The Government explicitly alleged in the indictment that the transfer of $100,000 was one of the quids in the quid pro quo scheme between Ridley-Thomas and Flynn, and it maintained this argument throughout trial.

The Government’s consistent argument of a quid pro quo bribery scheme fits within Skilling’s articulation of honest services fraud cases that are consistent with the pre-McNally core of bribery and kickback schemes.

Ridley-Thomas insists that a public official must derive some type of “personal enrichment” to commit honest services fraud. But § 1346 contains no such requirement, and we have held that “private gain is not an element of honest services fraud.”  Nor is there a requirement that each participant in the scheme personally benefit. Although the benefit of the $100,000 transfer accrued most directly to Sebastian, this benefit is a sufficient “thing of value” to support a conviction for honest services fraud.

Ridley-Thomas contends that the Government failed to present sufficient evidence of materiality. Stated differently, Ridley-Thomas emphasizes the lack of evidence that his “constituents would have wanted or expected him to disclose the source of the donation to PRPI or Flynn’s role in facilitating it.” We reject this argument. At a minimum, a rational trier of fact could have determined that had the other County Supervisors been aware of the scheme, one or more of them would have changed their vote (conduct) on the Telehealth amendment. The Government was not required to present direct evidence of Ridley-Thomas’s constituents’ approval or disapproval of his actions.

As with the honest services fraud convictions, Ridley-Thomas contends that the acceptance of perceived reputational benefits is not a “thing of value” under 18 U.S.C. § 666(a)(1)(B).

The transfer [] of $100,000 from Ridley-Thomas’s ballot committee through USC to United Ways for the benefit of Sebastian’s nonprofit constitutes a “anything of value” sufficient to support Ridley-Thomas’s conviction for violating § 666(a)(1)(B). Sufficient evidence also supports a finding that the transaction involved “anything of value of $5,000 or more.” At trial, the Government provided evidence that the Telehealth amendment exceeded $5,000 because the amendment, maintained funding for the contract at $530,323. The Government’s evidence that the value of the Telehealth amendment is more than $5,000, was sufficient for the jury to conclude that the bribe related to a transaction of more than $5,000. Thus, the district court did not err in denying Ridley-Thomas’s motion for judgment of acquittal for his bribery conviction.

The opinion also rejects several instructional challenges and a Batson claim.