5/9/25: En banc felon-in-possession decision

In United States v. Duarte, ---. F4th ---, No. 22-50048 (9th Cir. 2025), the en banc Court affirmed Steven Duarte’s conviction for felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). 

The opinion is long with several concurrences and a partial dissent.  But the essence of the decision is as follows:

Duarte argues that § 922(g)(1) is unconstitutional as applied to non-violent felons like him under Bruen’s analytical framework. While this is an issue of first impression for our court, we do not write on a blank slate, as Courts of Appeals across the nation have been wrestling with fresh challenges to the viability of § 922(g)(1) in the wake of Bruen. Four circuits have upheld the categorical application of § 922(g)(1) to all felons. See United States v. Hunt, 123 F.4th 697, 707–08 (4th Cir. 2024) (rejecting an as applied challenge on a categorical basis); United States v. Jackson, 110 F.4th 1120, 1129 (8th Cir. 2024) (same); Vincent v. Bondi, 127 F.4th 1263, 1265–66 (10th Cir. 2025) (rejecting an as-applied challenge because neither Bruen nor United States v. Rahimi, 602 U.S. 680 (2024), abrogated circuit precedent foreclosing such a challenge); United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir. 2024), cert. granted, judgment vacated, No. 24-5744, 2025 WL 76413 (U.S. Jan. 13, 2025) (holding that Bruen did not abrogate circuit precedent foreclosing such challenges).

Other circuits have rejected as-applied challenges, but have left open the possibility that § 922(g)(1) might be unconstitutional as applied to at least some felons. See United States v. Diaz, 116 F.4th 458, 471 (5th Cir. 2024) (rejecting an as-applied challenge because the defendant’s underlying felony was sufficiently similar to a death-eligible felony at the founding); United States v. Williams, 113 F.4th 637, 661–62 (6th Cir. 2024) (rejecting an as-applied challenge because the defendant’s criminal record sufficiently showed that he was dangerous enough to warrant disarmament). By contrast, the Third Circuit has held that § 922(g)(1) is unconstitutional as applied to a felon who was convicted of making a false statement to secure food stamps. See Range v. Att’y Gen., 124 F.4th 218, 222–23 (3d Cir. 2024) (en banc). And, as of the date of this writing, the First and Second Circuits have declined to address constitutional challenges to § 922(g)(1) on the merits, while the Seventh Circuit has yet to definitively resolve an as-applied challenge. See United States v. Langston, 110 F.4th 408, 419–20 (1st Cir. 2024) (rejecting an as-applied challenge because there was no “plain” error); United States v. Caves, No. 23-6176-CR, 2024 WL 5220649, at *1 (2d Cir. Dec. 26, 2024) (same); United States v. Gay, 98 F.4th 843, 846–47 (7th Cir. 2024) (assuming for the sake of argument that there is some room for an as-applied challenge, but rejecting the defendant’s specific as-applied challenge because his prior felonies included aggravated battery of a peace officer and possession of a weapon while in prison). 

Today, we align ourselves with the Fourth, Eighth, Tenth and Eleventh Circuits and hold that § 922(g)(1) is not unconstitutional as applied to non-violent felons like Steven Duarte.  

In sum, these [historical] laws demonstrate that § 922(g)(1)’s permanent and categorical disarmament of felons is consistent with this Nation’s historical tradition of firearm regulations. Legislatures have historically retained the discretion to punish those who commit the most severe crimes with permanent deprivations of liberty, and legislatures could disarm on a categorical basis those who present a “special danger of misuse” of firearms. Rahimi, 602 U.S. at 698. We agree with the Fourth and Eighth Circuits that either historical tradition is sufficient to uphold the application of § 922(g)(1) to all felons. See Jackson, 110 F.4th at 1127–28; Hunt, 123 F.4th at 706. 

Section 922(g)(1) “is by no means identical to these [historical laws], but it does not need to be.” Rahimi, 602 U.S. at 698. History does not require “felony-by-felony litigation” to support the application of § 922(g)(1). Jackson, 110 F.4th at 1125; Hunt, 123 F.4th at 700. Instead, consistent with our historical tradition, the government is “empowered to regulate guns through categorical restrictions.” Atkinson, 70 F.4th at 1038 (Wood, J., dissenting).

Finally, we recognize that these historical principles “may allow greater regulation than would an approach that employs means-end scrutiny with respect to each individual person who is regulated.” Jackson, 110 F.4th at 1129. However, these are the fruits of Bruen’s constitutional test. See id.; see also Heller v. District of Columbia, 670 F.3d 1244, 1274 (D.C. Cir. 2011) (Kavanaugh, J., dissenting) (“[G]overnments appear to have more flexibility and power to impose gun regulations under a test based on text, history, and tradition than they would under strict scrutiny.” (emphasis omitted)). 

5/8/25: Case on implied breach

In United States v. Plancarte, --- F.4th ---, No. 24-327 (9th Cir. 2025), the Court affirmed the district court's finding that the government did not breach the plea agreement, enforced the appellate waiver, and dismissed Erika Marie Plancarte’s appeal in a case in which she pleaded guilty to conspiracy to transport an alien into the United States.

Erika Marie Plancarte pleaded guilty to one count of conspiracy to transport an alien into the United States. The plea agreement bound the government to recommend a sentence of 90 days of imprisonment. We hold that the government did not implicitly breach the plea agreement by referencing Plancarte’s criminal history, expressing concern about Plancarte’s conduct and recidivism, clarifying an ambiguity in the presentence report, and declining to present mitigating evidence.

Criminal plea agreements “are essentially contracts between the government and a defendant.” Id. at 28. As such, either party can breach the agreement by violating its terms. United States v. Myers, 32 F.3d 411, 413 (9th Cir. 1994) (per curiam). For example, the government cannot agree “to recommend a sentence at the low end of the applicable guideline range,” but make “no recommendation” at all. Id. at 412, 413. Doing so violates “the terms of the plea agreement” and requires reversal and remand for resentencing. Id. at 413. In addition to complying with the literal terms of the contract, Farias-Contreras, 104 F.4th at 28, the parties must also comply with the “spirit of the plea agreement,” id. at 31. That means the parties’ arguments “must be made in good faith and advance the objectives of the plea agreement.” Id. We have compared this to contract law, which “implies a covenant of good faith and fair dealing in every contract.” Id. (citing Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 779 (9th Cir. 2003)). “This is a fact-specific inquiry based on contract principles.” Id. In conducting this inquiry, courts must consider the “totality of circumstances.” Id.

The government may implicitly breach a plea agreement by making arguments to the district court that undermine the parties’ agreement. But our court, sitting en banc, expressly disclaimed finding a “per se” implicit breach of a plea agreement when the government “present[s] any information already known and contained in the” PSR. Id. The government is “entitled” to do so when “respond[ing] to arguments” raised by the defense. Id. 

The government may undermine the plea agreement if it introduces “information that serves no purpose but to influence the court to give a higher sentence,” id. at 28 (quoting United States v. Whitney, 673 F.3d 965, 971 (9th Cir. 2012) (cleaned up)), or if it “purports to make the promised recommendation while ‘winking’ at the district court to impliedly request a different outcome,” id. (quoting United States v. Heredia, 768 F.3d 1220, 1231 (9th Cir. 2014)). One such example of bad faith behavior includes making inflammatory or pejorative comments about a defendant’s past offenses, such as analogizing drug dealers to vampires. See id. at 28–29. Or, the government may act in bad faith by inviting “the district court’s skepticism as to its recommendation” by noting a difference of opinion in the prosecutor’s office as to the correct sentence. Id. at 29. A court may consider such conduct to weigh in favor of finding that the government implicitly breached the plea agreement. 

On the other hand, so long as the government’s arguments are not precluded by the literal text of the plea agreement, id. at 30–31, the government may make arguments in support of its sentencing recommendation, including by highlighting aspects of the defendant’s offense or criminal history, see id. at 29; cf. United States v. Minasyan, 4 F.4th 770, 780–81 (9th Cir. 2021) (holding that the government did not implicitly breach the plea agreement by reiterating facts from the PSR that were relevant to the defendant’s sentencing). And when the defendant argues for a below-Guidelines sentence, the government may oppose the defendant’s argument and supplement the facts with relevant information, including by repeating facts in the PSR. Farias-Contreras, 104 F.4th at 30. However, the “government does not have carte blanche to use inflammatory rhetoric,” id. at 29, and the “government’s response [to a defendant’s request for a sentence lower than what the government recommends] must be tethered to its obligations under the plea agreement,” id. at 31.

The government did not implicitly breach its plea agreement with Plancarte. Instead, the government stuck to the letter of the agreement, and it did not make statements in bad faith to undermine the parties’ bargain. The district court properly reached its own conclusion as to Plancarte’s sentence, as anticipated by the plea agreement. Therefore, we enforce the appellate waiver in the plea agreement, and we dismiss the appeal.

5/6/25: Taking money from inmate trust accounts to cover restitution

In United States v. Myers, --- F.4th ---, No. 23-1034 (9th Cir. 2025), a divided court affirmed the district court’s order granting the government’s motion to turn over certain funds in Ronald Myers’s inmate trust account and apply them to Myers’s restitution obligation.

This decision could have a significant impact on any clients that receive, over time, substantial trust account deposits.  

The Mandatory Victims Restitution Act requires an inmate who “receives substantial resources from any source, including inheritance, settlement, or other judgment” to put such resources toward unpaid restitution. 18 U.S.C. § 3664(n). The question here is whether this provision applies to the gradual accumulation of cash deposits from family and friends in an inmate’s trust account. We hold that it does. Because § 3664(n) authorizes a district court to turn over periodic deposits that substantially accrue in an inmate’s account, we affirm.

Myers, like other federal inmates, has a trust account maintained by the Federal Bureau of Prisons (BOP). See 28 C.F.R. §§ 506.1, 506.2. Since 2013, over $30,500 has been deposited in Myers’s account. Most deposits ($27,872) were from family and friends. The rest ($2,747) were prison wages. Myers claims he saved some of the money, but records show he spent most of it. Over nine years, Myers donated $1,580 to charity, sent $1,334 to other individuals, and spent about $128 on subscriptions. He spent the remainder at the prison commissary. As of late 2022, Myers’s account contained $1,622.

Myers still owes his victims over $35,000 in restitution. So when the government discovered the activity on Myers’s trust account, it asked the district court to direct BOP to turn over most of the remaining funds and apply them to Myers’s obligation. The government disclaimed any efforts to target Myers’s prison wages. But as to the accumulated deposits from family and friends, the government invoked the Mandatory Victims Restitution Act (MVRA), which requires an inmate who “receives substantial resources from any source, including inheritance, settlement, or other judgment, . . . to apply the value of such resources to any restitution or fine still owed.” Pub. L. No. 104-132, § 206(a), 110 Stat. 1227, 1235–36 (1996) (codified at 18 U.S.C. § 3664(n)). 

The district court granted the turnover motion.

On appeal, the majority held:  "Section 3664(n) provides that if an inmate “receives substantial resources from any source, including inheritance, settlement, or other judgment,” he “shall be required to apply the value of such resources to any restitution or fine still owed.” 18 U.S.C. § 3664(n). In interpreting this provision, we face two related questions. Is § 3664(n) restricted to payments from a single source? And does the statute’s reference to “inheritance, settlement, or other judgment” limit its application to sudden financial windfalls? Addressing each question in turn, we hold that § 3664(n) applies not just to one-time financial windfalls, but also to substantial aggregated sums from multiple sources—like family and friends—that gradually accrue in an inmate’s trust account."

Judge McKeown wrote a compelling dissent: 

Under 18 U.S.C. § 3664(n), a defendant who “receives substantial resources from any source, including inheritance, settlement, or other judgment, during a period of incarceration” is required to “apply the value of such resources to any restitution or fine still owed.” The most logical interpretation of this statute is that it applies only to resources that are substantial at the time of receipt.

The text of § 3664(n), though brief, contains key terms— “receives,” “substantial resources,” “from any source,” “including inheritance, settlement, or other judgment.” Although the statute applies during a defendant’s incarceration, it must be read in conjunction with 18 U.S.C. § 3664(k), which requires both incarcerated and released defendants to notify the court and the Attorney General “of any material change in the defendant’s economic circumstances that might affect the defendant’s ability to pay restitution.” Both subsections serve the common policy goal of ensuring victims receive restitution.

Section 3664(n) is susceptible to competing interpretations. It might apply only to windfalls, in line with Myers’s position and the view taken by the First, Fifth, and Sixth Circuits. See United States v. Saemisch, 70 F.4th 1, 6 (1st Cir. 2023) (“[T]he MVRA requires certain defendants to apply to their restitution obligation any sudden windfalls they receive.”); United States v. Hughes, 914 F.3d 947, 951 (5th Cir. 2019) (“[W]e think [§ 3664(n)] refers to windfalls or sudden financial injections.”); United States v. Carson, 55 F.4th 1053, 1056 (6th Cir. 2022) (describing § 3664(n) as a “windfall provision”). This approach interprets the phrase “including inheritance, settlement, or other judgment” to cabin the nature of the source and limit the provision to singular, large, and unanticipated gains. Alternatively, as the majority urges, § 3664(n) could apply to any substantial aggregated amount, including amounts originating from multiple distinct sources over any period. No appellate court has adopted this view. Or § 3664(n) could apply to a substantial amount, from any source, so long as the amount is substantial at the time it is received. 

I think the last interpretation—that substantiality is measured at the time of receipt—is the most straightforward and logical reading of the text based on § 3664(n)’s use of the present tense “receives.” The parties’ and the majority’s arguments in favor of the two other alternatives—that § 3664(n) applies only to windfalls, or that it applies to aggregated amounts—do not persuade me otherwise.  

4/30/25: Invited error

In United States v. Turrey, --- F.4th ---, No. 23-1956 (9th Cir. 2025), the Court granted the government’s request to publish an unpublished Memorandum disposition affirming Joseph Anthony Turrey’s conviction on multiple counts of sexual abuse in Indian Country.

The case is about the defense inviting error, so it is no wonder the government sought publication.  

“The doctrine of invited error prevents a defendant from complaining of an error that was his own fault.” United States v. Magdaleno, 43 F.4th 1215, 1219 (9th Cir. 2022) (citation omitted). “If a defendant has both (1) invited the error and (2) relinquished a known right, then the alleged error is considered waived.” Id. at 1219–20 (cleaned up). A defendant invites error when he “induces or causes the error.” Id. at 1220 (cleaned up). When evaluating whether a defendant intentionally relinquished a known right, we look for “evidence in the record that the defendant was aware of, i.e., knew of, the relinquished or abandoned right.”

Turrey contends that testifying Minor Victim 2’s (“MV2”) prior forensic interviews were inadmissible under the Federal Rules of Evidence (“FRE”). To the extent admission of the full videotaped interviews was an error, however, Turrey waived this claim by inviting error. See Magdaleno, 43 F.4th at 1220. Although Turrey initially contended in a motion in limine that MV2’s videotaped interviews were not admissible under FRE 801(d)(1)(B), Turrey changed course in a subsequent hearing and asked the district court to admit her interviews in full under FRE 106. By asking the district court to admit MV2’s full interviews, Turrey caused the error he now alleges. 

Because Turrey did not object each time an interview video was admitted at trial, Turrey relinquished his known right to object to the evidence. See id. The record shows that Turrey knew he was relinquishing this right, see Perez, 116 F.3d at 845, because Turrey’s counsel said, “I have not objected to a great deal of hearsay evidence. That is just a strategic choice . . . I would like the whole interview[s].”  

The opinion then continues in this same vein, finding another alleged error waived under the invited error doctrine.  The moral of the story .... Object!

4/28/25: Two cases today - one on U.S.S.G. § 4C1.1 and the other on sovereign immunity.

Beginning with the Guidelines case, in United States v. Gonzalez-Loera, --- F.4th ---, No. 24-1013 (9th Cir. 2025), the Court affirmed the district court’s denial of Gonzalez-Loera’s motion for a sentence reduction under the new zero-point offender provision of U.S.S.G. § 4C1.1.

Roberto Gonzalez-Loera appeals from the district court’s order denying his motion for a sentencing reduction under the new zero-point offender provision of the United States Sentencing Guidelines (“U.S.S.G.”) § 4C1.1. 1 Section 4C1.1 allows a court to adjust a defendant’s offense level downward if he “meets all of the [listed] criteria.” U.S.S.G. § 4C1.1(a). Here, we are concerned only with the criteria in § 4C1.1(a)(10) (“subsection (10)”): “[T]he defendant did not receive an adjustment under [U.S.S.G.] § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.” Id. § 4C1.1(a)(10). 

Because of subsection (10)’s plain and unambiguous text, we hold that it contains two distinct requirements, and a defendant must satisfy both to obtain relief. Thus, a defendant is ineligible for relief under § 4C1.1 if he either received an adjustment under § 3B1.1 or engaged in a continuing criminal enterprise. Because Gonzalez-Loera received an adjustment under § 3B1.1, he is ineligible for relief, and we affirm the district court’s denial of his motion to reduce his sentence.

Of note, "Effective November 1, 2024, the Commission amended § 4C1.1 by dividing the criteria in subsection (10) into two subsections. U.S.S.G. supp. app. C, amend. 831, at 287 (Nov. 2024) (striking paragraph (10) and inserting two new paragraphs: “(10) the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role); and (11) the defendant was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848”). The Commission explained that the purpose of the amendment was “[t]o clarify the Commission’s intention that a defendant is ineligible for the adjustment if the defendant meets either of the disqualifying conditions.” Id. at 288. The Commission’s clarifying amendment makes clear that subsection (10) sets forth two separate requirements."

Next, in United States v. Pangang Group Company, Ltd., --- F.4th ---, No. 22-10058 (9th Cir. 2025), the Court  affirmed the district court’s denial of a motion to dismiss an indictment charging four affiliated companies (“the Pangang Companies”) with economic espionage in connection with their alleged efforts to steal from DuPont trade secrets relating to the production of titanium dioxide.

This is a lengthy opinion.  And if you have a case involving a foreign government owned company, the decision is a must read.  But for purposes of this summary, here are the key points: 

Section 66(g) of the Restatement extends “[t]he immunity of a foreign state” to “a corporation created under its laws and exercising functions comparable to those of an agency of the state.” RESTATEMENT, supra, § 66(g). “The term ‘agency’ as used in this Section means a body having the nature of a government department or ministry.” RESTATEMENT, supra, § 66 cmt. a. 

We hold that the Pangang Companies have not made a prima facie showing that they exercise functions comparable to those of an agency of the PRC. They therefore are not the kinds of entities eligible for foreign sovereign immunity from criminal prosecution. 

Neither the allegations in the indictment nor anything else in the record establishes a prima facie claim that the Pangang Companies exercise functions comparable to those of an agency of the PRC. 

Because the record does not suggest that the Pangang Companies are anything more than conventional corporate entities engaged in commercial activities, the Pangang Companies fail to establish a prima facie case that they are entities “exercising functions comparable to those of an agency of the state.” 

4/11/25: Interesting 11th Circuit decision on Hobbs Act robbery

No published criminal decisions today from the 9th, so I have time to share an interesting case from the 11th Circuit. 

In United States v. O'Steen, --- F.4th ---, No. 22-13569 (11th Cir. 2025), the Court vacated the defendant's convictions. 

This appeal is the last chapter of a lengthy FBI investigation of the State Attorney for the Third Judicial Circuit of Florida, Jeffrey Alan Siegmeister. The investigation began in August 2018, after Andy Tong, whom Siegmeister was prosecuting for maintaining a gambling house in violation of Florida law,2 told the FBI that his attorney, Marion Michael O’Steen, would have to pay Siegmeister $50,000 for a favorable disposition of the case. The investigation concluded in February 2021, when a Middle District of Florida grand jury returned a twelve-count indictment against Siegmeister and O’Steen. Siegmeister was charged in eleven counts, O’Steen in four. Relevant here are Counts One through Four .

The Court's Hobbs Act discussion is particularly interesting. 

In his Rule 29 motion for acquittal at trial, O’Steen argued that he could not be convicted of Hobbs Act extortion because the extorted property must be the “actual property” of the victim.

The Hobbs Act defines “commerce” to include all “commerce over which the United States has jurisdiction.” 18 U.S.C. § 1951(b)(3). In other words, the statute reaches only as far as Congress can exercise its constitutional authority over interstate commerce. See U.S. Const. art. I, § 8, cl. 3. In order to establish the required “interstate nexus,” the Government must “show a realistic probability of an effect, or some actual de minimis effect, on commerce.” 

Although this Court has never squarely considered whether the Government can prove Hobbs Act extortion where the extorted property was provided solely by law enforcement, the Sixth Circuit addressed precisely that question in United States v. DiCarlantonio, 870 F.2d 1058 (6th Cir. 1989). In that case, like here, the allegedly extorted money had been provided to the victim by the FBI. See DiCarlantonio, 870 F.2d at 1060. And the Sixth Circuit held that “the mere receipt of government funds” could not create the requisite effect on interstate commerce. Id. at 1060–61; see also United States v. Rindone, 631 F.2d 491, 494 (7th Cir. 1980). 

We agree. Although the use of government funds as bribe money depletes the funds available to the government, it does not “deplete[] the assets of an individual who is directly engaged in interstate commerce.” See Diaz, 248 F.3d at 1084–45 (emphasis added). Therefore, evidence of an alleged extortion involving purely government money cannot establish even the minimal effect on interstate commerce that is required by the Hobbs Act.

4/2/25: Convictions set aside under Cal. P.C. 1203.4 are not "expunged" for Guidelines purposes

In United States v. Carver, --- F.4th ---, No. 23-4105 (9th Cir. 2025), the Court affirmed Carver's sentence, holding that convictions set aside under Cal. P.C. 1203.4 are not "expunged" for Guidelines purposes. 

In determining a defendant’s criminal history under the United States Sentencing Guidelines (“Guidelines”), courts do not count sentences for “expunged convictions.” U.S.S.G. § 4A1.2(j). We have held that convictions set aside under section 1203.4 of the California Penal Code are not expunged for purposes of section 4A1.2(j) of the Guidelines. See United States v. Hayden, 255 F.3d 768, 772 (9th Cir. 2001). Because Hayden used the “‘traditional tools’ of construction” to reach its conclusion, Kisor v. Wilkie, 588 U.S. 558, 575 (2019) , we reject the defendant’s argument that Kisor overruled Hayden.