7/9/25: Selling guns to felons and reasonable suspicion

Two criminal decisions today. 

First, in United States v. Vlha, --- F.4th ---, No. 22-5028 (9th Cir. 2024), the Court affirmed James Vlha’s and Travis Schlotterbeck’s convictions under 18 U.S.C. § 922(a)(1)(A) for conspiring to manufacture firearms for sale without a federal license and Schlotterbeck’s conviction under 18 U.S.C. § 922(d)(1) for selling a firearm to a felon.

The issue on appeal was whether these two statutes violate the Second Amendment.  The Court held they do not. 

Defendants James Vlha and Travis Schlotterbeck were convicted under 18 U.S.C. § 922(a)(1)(A) for conspiring to manufacture firearms for sale without a federal license and Schlotterbeck was convicted under 18 U.S.C. § 922(d)(1) for selling a firearm to a felon. Defendants argue that these two statutes violate the Second Amendment. We disagree because the Second Amendment does not apply to Defendants’ conduct.

Where the challenger is an individual whose direct possessory right to “keep and bear Arms” is not implicated, as here, our ancillary-rights doctrine applies. Before Bruen, we held that the Second Amendment protects some activities ancillary to the core possessory right, including the ability to acquire weapons. E.g., Teixeira, 873 F.3d at 676–78. But the Second Amendment is limited in this context: it protects ancillary activities only if the regulation of such activities “meaningfully constrain[s]” the core individual possessory right. Id. at 680. There is not “a freestanding right” to sell firearms that is “wholly detached from any customer’s ability to acquire firearms.” Id. at 682; see also id. 682–90 (analyzing the history). A vendor challenging a firearms regulation must be able to demonstrate that the would-be purchasers’ core right of possession is being meaningfully constrained. See id. at 678, 681–90. 

Bruen did not abrogate our ancillary-rights doctrine.  Thus, we apply the meaningful-constraint test at step one of the Bruen analysis to determine whether the conduct at issue is presumptively protected by the Second Amendment.

Federal law prohibits manufacturing firearms for public sale or distribution without a license. 18 U.S.C. § 922(a)(1)(A).1 And because Defendants are not asserting possessory rights, whether the Second Amendment protects their unlicensed manufacture of firearms is governed by the ancillary-rights doctrine.

Broadly speaking, we agree with Defendants that the ability to manufacture firearms facilitates individuals’ ability to buy firearms, which facilitates the core right to “keep and bear Arms.” See Teixeira, 873 F.3d at 677 (holding the “core Second Amendment right . . . ‘wouldn’t mean much’ without the ability to acquire arms” But federal law does not prohibit manufacturing, only manufacturing “as a regular course of trade or business” without a license. 18 U.S.C. §§ 921(a)(21)(A), 922(a)(1)(A). The licensing scheme that Congress created here is not discretionary—the required license must be issued if the applicant pays a filing fee, is at least 21-years old, has premises on which to conduct his business, and is generally compliant with other laws. See 18 U.S.C. § 923(a), (d); see also 27 C.F.R. §§ 478.41–478.60.  

Given this, requiring commercial firearm manufacturers to obtain licenses under the shall-issue scheme challenged here does not meaningfully constrain would-be purchasers from obtaining firearms. See Teixeira, 873 F.3d at 680–81. While “any permitting scheme can be put toward abusive ends” through “lengthy wait times in processing license applications or exorbitant fees” and the like, Bruen, 587 U.S. at 38 n.9, Defendants have not shown any such abuse here. Therefore, we conclude that the text of the Second Amendment does not cover the conduct regulated by § 922(a)(1)(A), and Defendants’ constitutional challenge as to this statute fails.

The Court also held that because "felons have no Second Amendment right to keep and bear arms, then it necessarily follows that they have no right to purchase firearms."  Thus, "Schlotterbeck’s facial and as-applied constitutional challenges to § 922(d)(1) also fail."

Next, in United States v. Bejar-Guizar, --- F.4th ---, 23-3201 (9th Cir. 2025), the Court affirmed Juan Carlos Bejar-Guizar’s conviction for unlawful entry into the United States in violation of 8 U.S.C. § 1325(a)(1).

On a densely foggy early morning in the Imperial Beach area of San Diego, U.S. Border Patrol agents spotted a man walking along a divided highway. The agents noticed that the man had muddy legs and boots—as if he had just crossed the Tijuana River by the border. He was walking on the side of the highway with no sidewalk, about 300 yards north of the U.S.-Mexico border, at a time when most nearby stores were still closed. One of the agents stopped the man, later identified as Juan Carlos Bejar-Guizar, for an immigration inspection. He admitted that he was here unlawfully.

Bejar-Guizar contended that Border Patrol agents lacked reasonable suspicion to briefly detain him under the Fourth Amendment.  The Court disagreed. 

Bejar-Guizar also argued that his admissions that he was in the United States unlawfully were not sufficiently corroborated by independent evidence under the doctrine of corpus delicti. The Court again disagreed, holding that circumstantial and other evidence established both Bejar-Guizar’s alienage and the trustworthiness of his admissions.

7/8/25: An "official restraint" sufficiency reversal

In United States v. Liberato, --- F.4th ---, No. 23-3262 (9th Cir. 2025), a divided Court reversed Wardy Alfonso Liberato’s conviction under 8 U.S.C. § 1326(a) for entering and being found in the United States after having been removed, and remanded for entry of a judgment of acquittal.

The only issue on appeal was whether the government’s evidence was sufficient to establish that Liberato was free from official restraint at some point before his apprehension. The majority held it was not. 

Wardy Alfonso Liberato, a Dominican removed from the United States in 2007, was part of a group of suspected noncitizens arrested next to the U.S.-Mexico border fence in January 2023. A jury convicted him of “enter[ing]” and being “found in the United States of America after having been . . . removed therefrom” in violation of 8 U.S.C. § 1326(a). Presence in the United States does not violate Section 1326(a) “until physical presence is accompanied by freedom from official restraint.” United States v. PachecoMedina, 212 F.3d 1162, 1164 (9th Cir. 2000) (quoting United States v. Oscar, 496 F.2d 492, 493 (9th Cir. 1974)). Liberato appeals his conviction, arguing that the government did not meet its burden of proving beyond a reasonable doubt that he was ever free from official restraint before he was apprehended. We agree and reverse.

Critically for this case, “[t]he burden is on the government to establish lack of official restraint.” BelloBahena, 411 F.3d at 1087. As our cases illustrate, the evidence presented at trial must support not just the possibility but the logical inference—beyond a reasonable doubt—that the defendant was at least briefly free from official restraint while within U.S. territory.

Viewing this evidence in the government’s favor, no rational juror could have concluded beyond a reasonable doubt that Liberato was at any point free from official observation or restraint between the moment he physically crossed into U.S. territory and the moment he was apprehended.

[T]here was no evidence that Liberato’s group was ever anywhere other than immediately next to the border fence. In Castellanos-Garcia and BelloBahena, the distance from the border supported a reasonable inference, absent any evidence of prior observation, that the defendant had traveled freely and unrestrained to the point of first encounter. But here, Liberato’s only established location—right next to the fence, in Agent Lastra’s presence—does not support an inference that he was ever at large in U.S. territory.

[T]here was no testimony from the first agent to encounter Liberato directly—Agent Lastra. And, to the extent the jury accepted Agent Hall’s testimony that Liberato was first observed through a camera, there was also no testimony from the agent who observed Liberato via that camera, and no indication whether Liberato was in the United States or Mexico when so observed. As a result, there was no testimony whatsoever about where Liberato was or what he was doing when he was first observed in the United States.

It is possible, to be sure, that there was a gap in observation. Given Mondragon’s camera testimony, a reasonable juror could perhaps have found that there were no cameras observing the location where Liberato was arrested. And perhaps Liberato and his group traveled some distance unseen before reaching that location and being apprehended by Agent Lastra. But there is no evidence that that happened, just, at best, “mere speculation.” Nevils, 598 F.3d at 1167. The only evidence is that Agent Lastra “encountered” Liberato. Whether this encounter took place while Liberato was crossing the border or only afterwards was not specified. And Liberato was right next to the border fence in Agent Lastra’s presence at the only time Agent Mondragon could say where he saw him.

This is not a case, then, where the “record . . . supports conflicting inferences”—that Liberato either did or did not escape observation for some period. Cf. Nevils, 598 F.3d at 1164 (quoting Jackson, 443 U.S. at 326). An inference is a conclusion reached by “deducing a logical consequence” from a set of facts. Inference, Black’s Law Dictionary (12th ed. 2024). Here, although the testimony presented does not entirely foreclose the possibility that Liberato briefly escaped observation, such a conclusion is not a logical consequence of the facts that are in the record—and certainly not a logical inference beyond a reasonable doubt. The speculative possibility that Liberato was at some point free from official restraint cannot serve as the basis for a criminal conviction.

The government was of course free to try this case how it saw fit. But the testimony from the witnesses the government did choose to call was full of gaps—gaps the government presumably could have filled with no inherent difficulty but, for its own undisclosed reasons, chose not to. That choice was the government’s to make. But the consequence of that choice was that the evidence the government presented was not sufficient to meet its high burden of proof beyond a reasonable doubt.

6/27/25: Case on Guidelines commentary and a personal request

In United States v. Keller, --- F.4th ---, No. 23-656 (9th Cir. 2025), the Court affirmed Thomas Keller’s conviction and sentence on four counts of prescribing controlled substances outside the scope of professional practice.  

Keller raised four claims: (1) the district court erred in denying his motion to suppress a journal found at his residence that was seized pursuant to a search warrant justified by neither probable cause nor the “plain view” doctrine; (2) the district court erred in not holding an evidentiary hearing on his suppression motion; (3) the charges against him violated the nondelegation doctrine; and (4) the district court erred in calculating his sentencing range under U.S.S.G. § 2D1.1 by relying on a drug conversion ratio found in the Sentencing Guidelines commentary.

I'm going to focus on (2) and (4).  

As to the evidentiary hearing:  

A district court is “require[d] . . . to conduct an evidentiary hearing when the moving papers filed in connection with a pre-trial suppression motion show that there are contested issues of fact relating to the lawfulness of a search.”  But for moving papers to show that there are contested issues of fact warranting an evidentiary hearing, they must “allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that contested issues of fact exist.”  A simple desire to cross-examine agents that a movant has accused of being untruthful does not itself create grounds for an evidentiary hearing.

The Court found that Keller did not meet his burden here. 

As to the sentencing issue, Keller's "challenge rests on the distinction between the Sentencing Guidelines and their accompanying commentary, and the reach of relatively recent case law addressing when courts may rely on Guidelines commentary."

Keller argues that the district court could not defer to the 6,700:1 ratio in Application Note 8 because the ratio is not a reasonable interpretation of an ambiguous Guideline under Kisor and Castillo. But we conclude that we need not and should not address whether the ratio is a permissible interpretation of the Guideline under Kisor because, in assessing the weight to be given to the commentary, the converted drug weight ratio for oxycodone is more properly regarded as part of the Guideline itself.

[T]he Guideline covers oxycodone, U.S.S.G. § 2D1.1(c), Note B, it provides base offense levels for “Converted Drug Weight”, id. § 2D1.1(c), and it expressly directs that “‘Converted Drug Weight,’ for purposes of this guideline, refers to a nominal reference designation that is used as a conversion factor in the Drug Conversion Tables set forth in the Commentary below,” id. § 2D1.1(c), Note K. As drafted, the ratios in the drug conversion tables are effectively part of § 2D1.1 itself because this section of the Guidelines expressly incorporates them. 

Furthermore, and critically, although the “commentary is not subject to mandatory congressional review,” Castillo, 69 F.4th at 655, the 6,700:1 oxycodone ratio underwent the same notice-and-comment and congressional-review process as the Guideline itself. The Sentencing Commission submitted this ratio to Congress for review on May 1, 2003, as part of Amendment 657.

There is also some helpful language on sentencing errors not being harmless:  “To establish harmlessness, the Government must show that ‘it is more probable than not’ that the error did not affect the sentence.”

 

6/26/25: SCOTUS decision on First Step Act retroactivity

In Hewitt v. United States, 606 U.S. ___, No. 23-1002 (2025), the Court addressed the First Step Act's retroactive application to section 924(c) convictions that previously would have been "stacked."  

Before the First Step Act was enacted in 2018, federal judges were required to sentence certain first-time offenders convicted of violating 18 U. S. C. §924(c)—a law that criminalizes the possession of a firearm while committing other crimes—to “stacked” 25-year periods of incarceration. The First Step Act, 132 Stat. 5194, eliminated this harsh mandatory minimum penalty. Congress also made the Act’s more lenient penalties partially retroactive. Section 403(b) specifies that the Act applies if a sentence “has not been imposed” upon an eligible §924(c) offender as of the date of the First Step Act’s enactment. Id., at 5222. 

The question presented here concerns an edge case: What penalties apply when a §924(c) offender had been sentenced as of the Act’s enactment, but that sentence was subsequently vacated, such that the offender must face a post-Act resentencing? We hold that, under that circumstance, a sentence “has not been imposed” for purposes of §403(b). Thus, the First Step Act’s more lenient penalties apply.

We granted certiorari to decide whether §403(b) of the First Step Act confers the benefit of the Act’s more lenient penalties to defendants facing post-Act resentencing following vacatur of their pre-Act sentence.

The Fifth Circuit held, and amicus and the dissent contend, that §403(b) excludes any defendant who was sentenced prior to the enactment date of the First Step Act— even if his sentence was later vacated. That is so, in their view, because the Act applies only “if a sentence for the offense has not been imposed as of ” the Act’s enactment date, and a sentence “has . . . been imposed” upon that defendant as a matter of historical fact. 132 Stat. 5222 (emphasis added). But based on the text of §403(b) and the nature of vacatur, we conclude that a sentence has been imposed for purposes of that provision if, and only if, the sentence is extant—i.e., has not been vacated.

6/20/25: Supreme Court decision on supervised release sentencing.

In Esteras v. United States, 606 U.S. ___ (2025), the Court vacated the Sixth Circuit's judgment affirming Esteras's supervised release sentence and remanded. 

The issue was whether district courts may consider the factors in §3553(a)(2)(A) when revoking supervised release.  In line with what is already the law in the Ninth Circuit, the Supreme Court held they may not.  Below are some  key parts of the majority opinion. 

A criminal sentence may include both time in prison and a term of supervised release. 18 U. S. C. §3583(a). Supervised release comes with conditions—for instance, the defendant must refrain from committing another crime. §3583(d). If the defendant violates one of these conditions, then the district court may revoke the term of supervised release and require reimprisonment. But a court may do so only “after considering” an enumerated list of sentencing factors: those “set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” §3583(e). Conspicuously missing from this list is §3553(a)(2)(A), which directs a district court to consider “the need for the sentence imposed” “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” The Sixth Circuit held that a district court may consider that factor nonetheless.

We disagree. Congress’s decision to enumerate most of the sentencing factors while omitting §3553(a)(2)(A) raises a strong inference that courts may not consider that factor when deciding whether to revoke a term of supervised release. This inference is consistent with both the statutory structure and the role that supervised release plays in the sentencing process. Accordingly, we vacate the judgments of the Sixth Circuit and remand for further proceedings. 

At oral argument, the Government expressed concern that it would be difficult for appellate courts to determine whether a district court has impermissibly relied on §3553(a)(2)(A). See Tr. of Oral Arg. 49–50. So we conclude with a few observations about appellate review. 

Much will turn on whether the defendant objects. If the defendant does not make the district court aware that it may be impermissibly relying on §3553(a)(2)(A), then the defendant’s appeal will be governed by plain-error review. See Fed. Rule Crim. Proc. 52(b). In that event, the district court’s order revoking supervised release and requiring reimprisonment will be affirmed unless it is “‘clear’” or “‘obvious’” that the district court actually relied on §3553(a)(2)(A)—because it did so either expressly or by unmistakable implication. United States v. Olano, 507 U. S. 725, 734 (1993). 

If the defendant does object to the district court’s reliance on §3553(a)(2)(A), we anticipate that the district court will recognize its potential error and clarify its revocation decision to make clear that it is not taking account of §3553(a)(2)(A). For example, the district court could withdraw any impermissible justification or explain that a stray reference to a §3553(a)(2)(A) factor was intended to bear on another §3553(a) factor or merely prefatory. If the court nonetheless considers the need to exact retribution for the defendant’s original criminal offense, and if the error was not harmless, then the court of appeals should vacate the court’s order and remand for the court to apply the correct standard. See Fed. Rule Crim. Proc. 52(a). 

This does not mean, as the Government suggests, that our reading of §3583(e) amounts to a “substance-free reverse magic-words requirement.” Brief for United States 37. The Government conflates the proper interpretation of §3583(e) with an appellate court’s ability to enforce that interpretation. The “requirement” here is very much substantive: District courts may not consider the retributive purpose of §3553(a)(2)(A) before revoking supervised release. We trust that district courts will heed that instruction regardless of the practical likelihood of reversal.

District courts may revoke a term of supervised release after considering the factors enumerated in §3583(e). Because §3553(a)(2)(A) is excluded from that list, district courts may not consider it. The judgments of the Sixth Circuit are vacated, and the cases are remanded for further proceedings consistent with this opinion.

6/18/25: 1326(d) case

In United States v. Sanchez, --- F.4th ---, No. 22-50072 (9th Cir. 2025), the Court affirmed the district court’s denial of Eliel Nunez Sanchez’s motion to dismiss an indictment charging him with illegal reentry after removal in violation of 8 U.S.C. § 1326.

This decision illustrates how difficult it will be to prevail on a 1326(d) in the Ninth Circuit.  If you are litigating such a motion, this case is a must read. The opinion is long and detailed, but the conclusion sums it up:

Each element of § 1326(d)’s bar on collateral attacks to removal orders is mandatory. See Palomar-Santiago, 593 U.S. at 329. And Nunez satisfies none of them: he did not exhaust his administrative remedies pursuant to § 1326(d)(1); he was not deprived of the opportunity for judicial review under § 1326(d)(2); and entry of the Removal Order was not fundamentally unfair under § 1326(d)(3). Accordingly, Nunez’s collateral attack on the Removal Order cannot proceed. 

6/17/25: probation search case

In United States v. Barry, --- F.4th ---, No. 23-2101 (9th Cir. 2025), the Court affirmed the district court’s denial of Ryan Barry’s motion to suppress evidence found in a warrantless search of his apartment.  The case turned on whether police officers had probable cause to believe that Barry, a probationer who was subject to warrantless search conditions, resided at the apartment.  The Court held they did. 

Nothing about this decision breaks new ground.  But there are two concurrences discussing whether the Ninth Circuit's precedent on these types of cases -- requiring probable cause to believe the parolee / probationer resides at the residence -- should be reconsidered.