The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-435
D.C. No.
Plaintiff - Appellee,
8:20-cr-00171-
v.
JVS-FWS-5
JESUS RAMIRO GOMEZ, AKA
Hunter, OPINION
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted March 5, 2024
Pasadena, California
Filed September 4, 2024
Before: Holly A. Thomas and Roopali H. Desai, Circuit
Judges, and James Alan Soto, District Judge. *
Opinion by Judge Desai;
Concurrence by Judge Soto
*
The Honorable James Alan Soto, United States District Judge for the
District of Arizona, sitting by designation.
2 USA V. GOMEZ
SUMMARY **
Criminal Law
The panel vacated a sentence and remanded for
resentencing in a case in which the district court applied a
career offender enhancement under U.S.S.G. § 4B1.1 on the
ground that Gomez’s prior conviction for assault with a
deadly weapon under California Penal Code § 245(a)(1) was
a “crime of violence.”
To satisfy the elements clause of the career offender
guideline, U.S.S.G. § 4B1.2(a)(1), a crime must require use
of force with a mens rea more culpable than recklessness, as
defined in Borden v. United States, 593 U.S. 420
(2021). Because California’s assault statute sweeps in
reckless uses of force, a conviction under § 245(a)(1) is not
a categorical match with the elements clause and does not
constitute a crime of violence.
The panel held that this court’s previous decisions
holding that § 245(a)(1) constitutes a crime of violence are
clearly irreconcilable with Borden, which established a
bright line rule: if a statute criminalizes uses of force
committed only with a conscious disregard of a substantial
risk to another person, it is not a crime of violence. This
court’s prior cases do not apply that test, and thus improperly
categorize § 245(a)(1) as a crime of violence.
The government argued that this court can affirm on the
ground that § 245(a)(1) satisfies an alternative definition of
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
USA V. GOMEZ 3
crime of violence set forth in the career offender guideline’s
enumerated offenses clause, U.S.S.G. § 4B1.2(a)(2). The
panel rejected this argument because aggravated assault
under the enumerated offenses clause requires a mens rea
greater than extreme recklessness.
The district court thus improperly applied the career
offender enhancement at sentencing.
Concurring, District Judge Soto agreed with the majority
that § 245(a) criminalizes conduct with a mental state short
of recklessness, and therefore does not constitute a crime of
violence according to Borden. Calling attention to what he
fears will precipitate confusion and disparate outcomes in
future cases, he wrote that the majority opinion cannot be
reconciled with the en banc decision in United States v.
Begay, 33 F.4th 1081 (9th Cir. 2022), which held that a
second-degree-murder conviction under 18 U.S.C. § 1111(a)
is a crime of violence.
COUNSEL
Robert J. Keenan (argued), Assistant United States Attorney,
Santa Ana Section; Bram M. Alden, Assistant United States
Attorney, Criminal Appeals Section Chief; E. Martin
Estrada, United States Attorney; United States Department
of Justice, Office of the United States Attorney, Santa Ana,
California; David R. Friedman, Assistant United States
Attorney, United States Department of Justice, Office of the
United States Attorney, Los Angeles, California; for
Plaintiff-Appellee.
Todd W. Burns (argued), Burns & Cohan Attorneys at Law,
San Diego, California, for Defendant-Appellant.
4 USA V. GOMEZ
OPINION
DESAI, Circuit Judge:
Jesus Ramiro Gomez was sentenced to 188 months’
incarceration for one count of distribution of
methamphetamine. At sentencing, the district court applied
a career offender enhancement, which doubled the
recommended range for Gomez’s sentence. To apply the
enhancement, the district court found that Gomez’s prior
conviction for assault with a deadly weapon under California
Penal Code § 245(a)(1) was a crime of violence. We have
previously held that California Penal Code § 245(a)(1)
constitutes a crime of violence, but our decisions are clearly
irreconcilable with the Supreme Court’s ruling in Borden v.
United States, 593 U.S. 420 (2021). In light of Borden, we
hold that convictions under California Penal Code
§ 245(a)(1) do not qualify as crimes of violence, and the
district court incorrectly applied the career offender
enhancement in this case.
BACKGROUND
We do not recount the underlying facts of Gomez’s
conviction because they are largely immaterial on appeal.
The relevant facts include that Gomez pleaded guilty to
distribution of methamphetamine after selling drugs to an
undercover agent, and the presentence report (“PSR”)
prepared by the probation office concluded that Gomez was
a “career offender.”
The career offender enhancement operates like a three-
strike rule: if a defendant has three convictions for controlled
substance offenses or “crimes of violence,” the enhancement
applies. U.S. Sent’g Guidelines Manual § 4B1.1 (U.S.
USA V. GOMEZ 5
Sent’g Comm’n 2001) [hereinafter U.S.S.G.]. The career
offender finding in Gomez’s PSR was based on his current
conviction, as well as his two prior convictions: one for
assault with a deadly weapon under California Penal Code
§ 245(a)(1) and one for possession of cocaine for sale.
The career offender enhancement ultimately increased
Gomez’s base offense level from level 27 to level 34,
resulting in an increase in the advisory sentencing range
from 130–162 months to 262–327 months. The government
did not contest that Gomez qualified as a career offender but
sought a three-level downward variance and urged a
sentence of 188 months’ imprisonment. The district court
followed the government’s recommendation and sentenced
Gomez to 188 months’ incarceration. Gomez objected to the
career offender finding for the first time on appeal.
STANDARD OF REVIEW
Before reaching the merits of Gomez’s claim, we must
decide whether to apply de novo review or plain error
review. We ordinarily review de novo whether a crime is a
crime of violence. United States v. Begay, 33 F.4th 1081,
1087 (9th Cir. 2022) (en banc). But here, the government
argues that we should apply plain error review because
Gomez did not object to the career offender enhancement at
sentencing. When an appeal presents a pure question of law
and the opposing party is not prejudiced by the defendant’s
failure to object, we may apply de novo review in our
discretion. United States v. Eckford, 77 F.4th 1228, 1231
(9th Cir. 2023).
The parties do not dispute that Gomez’s appeal presents
a pure question of law. And the government does not argue
that it was prejudiced by Gomez’s failure to object to the
career offender enhancement at sentencing. The government
6 USA V. GOMEZ
nevertheless argues that we must apply plain error review
because, in its view, our precedent permitting de novo
review for pure questions of law has been implicitly
overruled by two recent Supreme Court cases. But the cases
relied on by the government are not clearly irreconcilable
with our court’s precedent and practice. We may thus apply
de novo review consistent with our precedent.
In Davis v. United States, the Supreme Court invalidated
the Fifth Circuit’s practice of “declining to review certain
unpreserved factual arguments” under any standard of
review, including plain error. 589 U.S. 345, 347 (2020) (per
curiam) (emphasis added). Because Davis only addressed
whether unpreserved factual issues are subject to plain error
review or no review at all, its holding is not clearly
irreconcilable with our precedent holding that we may
review legal, not factual, issues de novo.
In Greer v. United States, the second case relied on by
the government, the Supreme Court rejected a defendant’s
attempt to circumvent plain error review based on a “futility”
exception. 593 U.S. 503, 511 (2021). The defendant argued
that it would have been futile to object below, and thus his
claim that he did not possess the requisite mens rea for a
felon in possession conviction was not subject to plain error
review. Id. at 511. Specifically, he alleged that objecting
would have been futile because a “uniform wall of
precedent” against his position existed in the circuit courts.
Id. at 511–12.
The Court disagreed, explaining that neither the text of
Federal Rule of Criminal Procedure 51 (“Rule 51”) nor
precedent supported a new “futility” exception to the plain
error standard. Id. The Court emphasized that Rule 51, which
defines how a party may preserve an objection for appeal,
USA V. GOMEZ 7
was inconsistent with a futility exception because it
“focus[ed] on a party’s opportunity to object—rather than a
party’s likelihood of prevailing on the objection.” Id. at 512.
And the Court suggested that a “futility” exception was
inconsistent with its precedent, noting that it had previously
applied plain error review even when reviewing a claim for
which virtually every circuit court had already rejected the
defendant’s position. Id. (citing Johnson v. United States,
520 U.S. 461 (1997)).
Greer’s reasoning does not mandate plain error review
here. While in Greer the Court noted that a “futility”
exception would have conflicted with its prior cases, id., the
government here does not identify any Supreme Court case
which would have come out differently had the Supreme
Court reviewed a pure question of law de novo instead of for
plain error. Nor does the government identify any
inconsistency of the kind identified in Greer between our
approach and the federal rules. Even if there is “some
tension” between Greer’s approach and our application of
de novo review, our precedents permitting de novo review
of a pure question of law are not “clearly irreconcilable” with
Greer. See Alonso-Juarez v. Garland, 80 F.4th 1039, 1049
(9th Cir. 2023).
Indeed, we have applied de novo review in
circumstances similar to Gomez’s even since Greer and
Davis were decided. In Eckford, 77 F.4th at 1231, we
considered whether aiding and abetting Hobbs Act Robbery
in violation of 18 U.S.C. § 1851(a) constituted a crime of
violence. The parties in Eckford disputed whether the
defendant had adequately preserved the issue for appeal. Id.
We declined to resolve that dispute, however, explaining that
regardless of whether the defendant raised the issue before
the district court, we had the discretion to review the issue
8 USA V. GOMEZ
de novo because it presented “a question that is purely one
of law . . . where the opposing party will suffer no prejudice
as a result of the failure to raise the issue in the trial court.”
Id. (quoting United States v. McAdory, 935 F.3d 838, 841–
42 (9th Cir. 2019)). Because we have continued to apply this
exception even since Greer and Davis, neither case
constitutes an “intervening” decision abrogating our “prior
circuit precedent” permitting de novo review. See Close v.
Sotheby’s, Inc., 894 F.3d 1061, 1073 (9th Cir. 2018).
Under our established precedent, because we do not need
a factual record to resolve the purely legal question before
us, we exercise our discretion to review the challenge de
novo.
ANALYSIS
In this case, we must determine whether the career
offender enhancement was properly applied to Gomez as a
matter of law. The sentencing guidelines’ career offender
enhancement applies if the defendant has three felony
convictions that qualify as a controlled substance offense or
a “crime of violence.” U.S.S.G. § 4B1.1(a). Gomez’s prior
conviction for possession of cocaine and current conviction
for distribution of methamphetamine are controlled
substance offenses. The career offender enhancement could
thus only apply to Gomez if he had a third felony conviction
for a crime of violence. The question before us then is
whether his prior conviction for assault with a deadly
weapon in California constitutes a “crime of violence.”
We employ a “categorical approach,” to determine
whether a crime is a crime of violence. Taylor v. United
States, 495 U.S. 575, 602 (1990). Under this approach, “the
facts of a given case are irrelevant,” and our focus is
“whether the elements of the statute of conviction meet the
USA V. GOMEZ 9
federal” crime of violence definition. Borden, 593 U.S. at
424. The least culpable act criminalized under the statute of
conviction must involve the level of force described in the
crime of violence definition. Id. If the statute criminalizes
any conduct less culpable than a federal crime of violence
requires, “the statute is not a categorical match,” and it does
not qualify as a crime of violence. See Begay, 33 F.4th at
1091.
I. California Penal Code § 245(a)(1) is not a crime of
violence.
Under the categorical approach, we must determine
whether assault with a deadly weapon matches the federal
crime of violence definition. The sentencing guidelines
provide that a crime of violence is an offense that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another.” U.S.S.G. § 4B1.2(a)(1).
This definition is known as the “elements clause.” Begay, 33
F.4th at 1090. Gomez argues that his § 245(a)(1) conviction
does not match the elements clause because it criminalizes a
lesser mens rea than the elements clause. We agree.
A. To satisfy the elements clause, a crime must
require the use of force with a mens rea more
culpable than recklessness, as defined in Borden
v. United States.
Before we analyze whether the assault statute and the
elements clause contain the same mens rea requirements, we
must determine the mens rea that the elements clause
requires. On its face, the elements clause does not require a
specific mens rea, but the Supreme Court has interpreted the
clause to require a mens rea more culpable than recklessness.
10 USA V. GOMEZ
In Leocal v. Ashcroft, the Supreme Court addressed
whether a statute criminalizing negligent or accidental uses
of force satisfies the elements clause. 1 543 U.S. 1, 8–9
(2004) (analyzing Florida’s DUI statute). The Court held
negligent or accidental conduct does not satisfy the elements
clause, reasoning that “[t]he key phrase in [the elements
clause]—the ‘use . . . of physical force against the person
. . . of another’—most naturally suggests a higher degree of
intent than negligent or merely accidental conduct.” Id. at 9.
However, the Court declined to address whether offenses
requiring proof of a reckless use of force qualified as crimes
of violence. Id. at 13.
Borden answered this question. 593 U.S. at 445. In
Borden, the defendant argued that his conviction for reckless
aggravated assault under Tennessee law did not satisfy the
elements clause because the elements clause requires the
statute of conviction to have a mens rea more culpable than
recklessness. Id. at 424–25. The Court agreed in a plurality
opinion.
The plurality held that the mens rea requirement stems
from the language requiring that force be used “against the
person . . . of another.” Id. at 427–28; U.S.S.G. § 4B1.1(a).
It relied on the Model Penal Code’s mens rea definitions,
noting that a person acts recklessly when he “consciously
disregards a substantial and unjustifiable risk.” Id. at 427
1
Leocal analyzed the elements clause in Title 18 of the U.S. Code, which
is nearly identical to the elements clause in the sentencing guidelines.
See 18 U.S.C. § 16(a) (“The term ‘crime of violence’ means an offense
that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another.” (cleaned up)).
We regularly treat cases interpreting crimes of violence as applicable
irrespective of the statute or guideline from which it originates. Begay,
33 F.4th at 1091 n.6.
USA V. GOMEZ 11
(quoting Model Penal Code § 2.02(2)(c) (1985)). The more
culpable mens rea, knowledge, is defined as “aware[ness]
that [a] result is practically certain to follow” from a person’s
conduct. Id. at 426 (quoting United States v. Bailey, 444 U.S.
394, 404 (1980)) (second alteration in original). And the
most culpable mens rea, purpose or intent, is when a person
“consciously desires a particular result.” Id. (citing Model
Penal Code § 2.02(2)(a) (1985)) (cleaned up). The plurality
held that “[t]he phrase ‘against another,’ when modifying the
‘use of force,’ demands that the perpetrator direct his action
at, or target, another individual.” Id. at 429. Because
“[r]eckless conduct is not aimed in that prescribed manner,”
it does not satisfy the elements clause. Id.
Justice Thomas, concurring in the judgment, agreed that
reckless crimes do not satisfy the elements clause. His
analysis relied on a different phrase in the statute: “use of
physical force.” Id. at 446 (Thomas, J., concurring). In
Justice Thomas’s view, the use of physical force “has a well-
understood meaning applying only to intentional acts
designed to cause harm.” Id. (quoting Voisine v. United
States, 579 U.S. 686, 713 (2016) (Thomas, J., dissenting)).
Because the reckless aggravated assault statute at issue
“could be violated through mere recklessness,” it did not
satisfy the elements clause. 2 Id.
2
The government alleges that the plurality’s reasoning is not binding
because a majority of justices did not agree. But “when a majority of the
Justices agree upon a single underlying rationale and one opinion can
reasonably be described as a logical subset of the other,” the opinion is
binding. United States v. Davis, 825 F.3d 1014, 1021–22 (9th Cir. 2016).
Here, the plurality opinion is narrower than Justice Thomas’s opinion
because Justice Thomas would have held the elements clause
encompasses only “intentional acts designed to cause harm.” Borden,
12 USA V. GOMEZ
After Borden, the elements clause is only satisfied by
crimes that require uses of force with a mens rea more
culpable than simple recklessness. Put another way, if a
person can be convicted under a criminal statute by using
force against another with only the “conscious[] disregard[]”
of a “substantial and unjustifiable risk,” the crime is not a
crime of violence. Id. at 427.
We now turn to analyzing whether California’s assault
statute satisfies the elements clause. The government argues
that California’s assault statute does not criminalize merely
reckless uses of force under this definition. We disagree.
Gomez was previously convicted under California Penal
Code § 245(a)(1) for assault with a deadly weapon that is not
a firearm. In California, assault is “an unlawful attempt,
coupled with a present ability, to commit a violent injury on
the person of another.” Cal. Penal Code § 240. The assault
statute does not, on its face, require a specific mens rea. Id.
We thus look to the California courts’ interpretation of the
statute to determine the requisite mens rea. Johnson v.
United States, 559 U.S. 133, 138 (2010) (explaining that
while interpreting the elements clause is a question of federal
law, the court is bound by the state court’s “interpretation of
state law, including its determination of the elements” of the
relevant crime). California’s assault statute has not changed
since 1872 and does not use or acknowledge modern mens
rea labels. People v. Williams, 29 P.3d 197, 200 (Cal. 2001).
Although several California Supreme Court cases have
attempted to clarify the law, see, e.g., People v. Colantuono,
593 U.S. at 446 (Thomas, J., concurring). And since Borden, we have
articulated the plurality’s reasoning in an en banc decision, making it
binding precedent in this circuit. Begay, 33 F.4th at 1092–94 (majority
op.), 1100 n.2 (Ikuta, J., dissenting in part).
USA V. GOMEZ 13
865 P.2d 704 (Cal. 1994); Williams, 29 P.3d 197, “[t]he
mens rea required for assault under California law has been
the subject of a long, tortured, and ongoing set of
explanations in the California courts,” United States v.
Grajeda, 581 F.3d 1186, 1193 (9th Cir. 2009).
The prevailing definition of the assault mens rea,
according to the California Supreme Court, is “an intentional
act and actual knowledge of those facts sufficient to establish
that the act by its nature will probably and directly result in
the application of physical force against another.” Williams,
29 P.3d at 204. This definition does not fit neatly within any
of the mens rea definitions provided in Borden, but it falls
short even of Borden’s definition of recklessness. To
illustrate, we first explain how California’s definition of the
mens rea for assault necessarily captures uses of force with
mental states less culpable than intent or knowledge.
For starters, the assault statute criminalizes uses of force
with a mens rea less culpable than intent. The California
Supreme Court expressly recognizes that § 245(a)(1) does
not require an intent to cause harm; it merely requires an
intent to do the act that results in harm. Williams, 29 P.3d at
204 (“[W]e hold that assault does not require a specific intent
to cause injury or a subjective awareness of the risk that an
injury might occur.”). The “intentional act” requirement
does not equate to an “intent” or “purpose” mens rea. It only
requires that the act in question be volitional. See id. at 201.
This is directly contrary to the definition of purpose or intent
in Borden, which is to “consciously desire[] a particular
result.” 593 U.S. at 426 (cleaned up). Even in Leocal, the
volitional act of driving under the influence did not establish
that the use of force was “intentional.” See 543 U.S. at 9.
Simply put, volition does not establish intent to apply force
to another person.
14 USA V. GOMEZ
A recent, post-Borden case confirms this conclusion. See
Gutierrez v. Garland, 106 F.4th 866 (9th Cir. 2024). In
Gutierrez, we held that carjacking under California Penal
Code § 215 is not categorically a crime of violence. 3 Id. at
874. Even though carjacking necessarily involves the act of
taking a vehicle with the intent to deprive its owner, the
elements clause requires more. Id. at 873. Gutierrez
illustrates that when a state statute does not assign a
sufficiently culpable mens rea to the use of force itself—as
opposed to other elements of the crime—it fails to satisfy the
elements clause. Id. at 876 (“That California courts do not
consider a defendant’s mens rea as to [the use of force]
element [of carjacking] further suggests that a defendant can
be convicted for accidental or reckless use of ‘force.’”).
The government argues that the assault statute requires,
at the very least, a knowing use of force. While superficially
appealing, this reading ignores the California Supreme
Court’s own interpretations of the statute. The California
Supreme Court has expressly held that assault “does not
require . . . a subjective awareness of the risk that an injury
might occur.” Williams, 29 P.3d at 204. Williams makes this
point even clearer, noting that a “defendant who honestly
believes that his act was not likely to result in a battery is
3
Under California Penal Code § 215,
[c]arjacking’ is the felonious taking of a motor vehicle
in the possession of another, from his or her person or
immediate presence, or from the person or immediate
presence of a passenger of the motor vehicle, against
his or her will and with the intent to either permanently
or temporarily deprive the person in possession of the
motor vehicle of his or her possession, accomplished
by means of force or fear.
Cal. Penal Code § 215(a).
USA V. GOMEZ 15
still guilty of assault if a reasonable person, viewing the facts
known to defendant, would find that the act would directly,
naturally, and probably result in a battery.” Id. at 203 n.3.
This description contradicts the definition of knowledge in
Borden, which is “aware[ness] that [a] result is practically
certain to follow from [one’s] conduct.” 593 U.S. at 426
(second alteration in original). Although California requires
knowledge of the facts that make the action the type of act
likely to result in harm, this does not equate to the subjective
awareness that harm “is practically certain” to result. See id.
Indeed, “knowledge of [the] . . . facts sufficient to
establish that the act by its nature will probably” result in
force, Williams, 29 P.3d at 204, is less culpable even than
Borden’s recklessness definition—that is, conscious
disregard of a substantial risk, 593 U.S. at 427. To illustrate,
Borden explains that a driver who “sees a pedestrian in his
path but plows ahead anyway, knowing the car will run him
over” has knowledge and satisfies the elements clause. Id. at
432. It further explains that a driver who “decides to run a
red light, and hits a pedestrian whom he did not see,” is
merely reckless, and does not satisfy the elements clause. Id.
The California assault statute not only sweeps in both types
of conduct, but does so even when the defendant is not
conscious of the risk he disregards. See, e.g., People v.
Yorba, No. G038293, 2008 WL 727693, at *6 (Cal. Ct. App.
Mar. 19, 2008) (affirming defendant’s § 245(a)(1)
conviction for running a red light during a police chase
because “[a]ny reasonable person under virtually any
circumstances would be aware a collision was a probable
result of speeding through a traffic-light-controlled
intersection against a red light”); People v. Lopez, No.
D053543, 2010 WL 780369, at *5 (Cal. Ct. App. Mar. 9,
2010) (affirming defendant’s § 245(a)(1) conviction for
16 USA V. GOMEZ
swerving toward an officer on the highway to avoid a tire
deflation device because “a reasonable person [in
defendant’s position] would realize that [his] act by its
nature would directly and probably result in the application
of force” to the officer). These cases show that the least
culpable conduct covered by the California assault statute
does not require an intent to apply force, knowledge that an
action will cause force to be applied to another, or even
subjective awareness of a risk that such force will result.
The government argues that we need only look to the
label California uses to describe the mens rea for assault. It
points to one sentence in Williams stating that “mere
recklessness or criminal negligence” is insufficient to satisfy
the assault statute. 29 P.3d at 203. But this argument
improperly relies on labels, thus elevating form over
substance. The Williams court itself explained that the
quoted language uses “recklessness” synonymously with
criminal negligence, rather than with the modern definition
of recklessness. Id. at 203 n.4 (explaining that the court uses
recklessness “in its historical sense as a synonym for
criminal negligence, rather than its more modern conception
as a subjective appreciation of the risk of harm to another”).
Given that the court meant only that criminal negligence
does not satisfy the assault statute, this statement from
Williams does not answer the question before us: whether the
assault statute criminalizes reckless uses of force.
Because we conclude California’s assault statute sweeps
in reckless uses of force, as defined in Borden, a conviction
under § 245(a)(1) is not a categorical match with the
elements clause and does not constitute a crime of violence.
USA V. GOMEZ 17
B. Borden is clearly irreconcilable with our cases
holding that California Penal Code § 245(a) is a
crime of violence.
Our prior holdings to the contrary are not binding. Before
Borden, we held that § 245(a) convictions are crimes of
violence. United States v. Heron-Salinas, 566 F.3d 898 (9th
Cir. 2009) (per curiam); Grajeda, 581 F.3d 1186; United
States v. Jimenez-Arzate, 781 F.3d 1062 (9th Cir. 2015) (per
curiam); United States v. Vasquez-Gonzalez, 901 F.3d 1060
(9th Cir. 2018). But these holdings are clearly irreconcilable
with intervening precedent, namely Borden. See Miller v.
Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003) (en banc);
United States v. Lindsey, 634 F.3d 541, 548 (9th Cir. 2011)
(“In order to be controlling on the panel, a higher court’s
decision must undercut the theory or reasoning underlying
the prior circuit precedent in such a way that the cases are
clearly irreconcilable.” (cleaned up)).
Before Borden, we held that crimes with a recklessness
mens rea do not satisfy the elements clause. Fernandez-Ruiz
v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc).
But our subsequent cases analyzing § 245(a)(1) did not use
a definition of recklessness consistent with Borden’s. Most
of our cases focused on whether § 245(a) can sustain a
conviction for unintentional conduct and concluded it
cannot. As a result, we have not conducted a meaningful
analysis of whether the statute is satisfied by reckless uses of
force using Borden’s definition of recklessness. This gap in
analysis puts our holdings at odds with Borden, which
requires analyzing whether the statute criminalizes uses of
force with a reckless mens rea.
In United States v. Grajeda, we held that § 245(a)(1) was
a crime of violence because it requires “‘violent’ and
18 USA V. GOMEZ
‘active’” force and “not merely accidental” uses of force. 4
581 F.3d at 1195–96. We were thus satisfied that § 245(a)(1)
did not criminalize merely “reckless” conduct. Id. at 1195. 5
But this analysis fails to consider Borden’s more rigorous
definition of recklessness. 593 U.S at 427. Grajeda’s
conclusion that a crime is a crime of violence whenever it
requires at least (1) active force and (2) non-accidental
conduct is irreconcilable with Borden’s holding that a crime
is not a crime of violence if it encompasses a mens rea in
which the defendant acts deliberately, but consciously
4
Before Grajeda, we concluded in Heron-Salinas, that assault with a
firearm under California Penal Code § 245(a)(2) was a crime of violence.
Heron-Salinas, 566 F.3d at 899. But Heron-Salinas based its reasoning
primarily on a portion of the statute that the Supreme Court has since
held is unconstitutionally vague. Id.; see also 18 U.S.C. § 16(b)
(“‘[C]rime of violence’ means . . . any other offense that is a felony and
that, by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of
committing the offense.”); see also Sessions v. Dimaya, 584 U.S. 148,
152 (2018) (holding that this clause is unconstitutionally vague). The
only independent analysis based on the constitutional portion of the
statute—the elements clause—conclusively held, “[t]he use of a firearm
in the commission of the crime is enough to demonstrate the actual force
was attempted or threatened.” Heron-Salinas, 566 F.3d at 899. This does
not address the mens rea requirement and is largely inapplicable because
Gomez was convicted under § 245(a)(1), which specifically criminalizes
assaults with “a deadly weapon or instrument other than a firearm”
(emphasis added).
5
Grajeda also relied on our decision in Heron-Salinas, as well as the
Supreme Court of California’s statement in Williams that “mere
recklessness or criminal negligence is . . . not enough.” Id. at 1194–96
(quoting Williams, 29 P.3d at 203). As we have explained above,
however, neither of these decisions shows that § 245(a)(1) satisfies
Borden’s mens rea requirement.
USA V. GOMEZ 19
disregards an unjustifiable—though not practically certain—
risk.
Next, Jimenez-Arzate considered whether two California
cases undercut the holding of Grajeda and demonstrated that
the assault mens rea did not match the mens rea of the
elements clause. 781 F.3d at 1064–65. In one California
case, the Court of Appeal upheld a conviction under
§ 245(a)(1) when the defendant “intentionally ran a red light
while racing another car down the street even though he saw
a car entering the intersection on the green,” and made “no
effort to stop despite a passenger warning him that he needed
to stop.” Id. at 1064 (citing People v. Aznavoleh, 210 Cal.
App. 4th 1181, 1185, 1189 (2012)). And in the other, the
Supreme Court of California upheld a conviction for
manslaughter and assault on a child causing death because
“substantial evidence established that defendant knew he
was striking his young son with his fist, forearm, knee, and
elbow, and that he used an amount of force a reasonable
person would realize was likely to result in great bodily
injury.” Id. (quoting People v. Wyatt, 229 P.3d 156, 157
(Cal. 2010)).
We held that these California cases did not demonstrate
that § 245(a)(1) criminalizes conduct less culpable than the
elements clause requires. We noted that in both cases the
defendant either “heedlessly disregard[ed] a perceived
likelihood of death or grave injury to others” or “a
reasonable person would have recognized the dangers” of
the defendant’s actions. Jimenez-Arzate, 781 F.3d at 1064–
65. We also recognized that under the assault statute, the
defendant need “not [be] subjectively aware of the risks” his
actions posed. Id. at 1065. This analysis is plainly at odds
with Borden because, under Borden, even a subjective
20 USA V. GOMEZ
awareness of a risk of harm is not sufficient. 593 U.S. at 427,
429. 6
In our most recent decision on this issue, we held that
§ 245(a)(1)’s “intentional act” requirement establishes that it
is an intentional crime, which satisfies the elements clause.
Vasquez-Gonzalez, 901 F.3d at 1068 (holding that the
intentional act requirement in § 245(a) established an
intentional use of force under the elements clause). But this
is irreconcilable with Borden’s definition of intent. Borden
explains that intent means not only intent to act, but a desire
that the action will result in harm. 593 U.S. at 426. We also
did not properly consider whether the statute criminalizes a
mens rea more culpable than recklessness in Vasquez-
Gonzalez. Although we quoted Williams, saying
“recklessness or criminal negligence” is insufficient under
6
Several of our colleagues have observed that the categorical approach
yields inconsistent or absurd results. See Lopez-Aguilar v. Barr, 948 F.3d
1143, 1149–50 (9th Cir. 2020) (Graber, J., joined by Tunheim, J.,
concurring) (“The categorical approach requires us to perform absurd
legal gymnastics, and it produces absurd results.”); United States v.
Brown, 879 F.3d 1043, 1051 (9th Cir. 2018) (Owens, J., concurring)
(“This case . . . typifies how far this doctrine has deviated from common
sense. . . . [T]his is a really, really bad way of doing things.”); United
States v. Valdivia-Flores, 876 F.3d 1201, 1210 (9th Cir. 2017)
(O’Scannlain, J., specially concurring) (“[This case] illustrates the
bizarre and arbitrary effects of the ever-spreading categorical approach
for comparing state law offenses to federal criminal definitions.”).
Indeed, the categorical approach requires courts to conclude that
obviously violent crimes are not “crimes of violence,” such as the fatal
beating of a child in Wyatt or, even more strikingly, the arson charges
from the Boston Marathon bombing, which killed three and injured
hundreds. See 229 P.3d at 157; United States v. Tsarnaev, 968 F.3d 24,
102 (1st Cir. 2020). But absent Supreme Court or congressional action
directing a departure from the categorical approach, we must continue to
apply it.
USA V. GOMEZ 21
the assault statute, as noted above, this phrase only
encompasses criminal negligence. Vasquez-Gonzalez, 901
F.3d at 1067. Our analysis thus fails to comply with
Borden’s requirements. 7
In sum, Borden establishes a bright line rule: if a statute
criminalizes uses of force committed only with a conscious
disregard of a substantial risk to another person, it is not a
crime of violence. Our prior cases do not apply that test, and
thus improperly categorize § 245(a)(1) as a crime of
violence in violation of Borden. 8 They are not merely in
tension with Borden; they are irreconcilable.
II. Assault under § 245(a)(1) also does not satisfy the
enumerated offenses clause.
The government argues that we can affirm on the ground
that § 245(a)(1) satisfies an alternative definition of a crime
7
Our court’s unpublished cases post-Borden are not persuasive because
they, too, conducted a labels-over-substance inquiry. See, e.g., United
States v. Man, No. 21-10241, 2022 WL 17260489, at *1 (9th Cir. Nov.
29, 2022) (stating, without analyzing the definition of recklessness under
Borden, “we have previously held that section 245 offenses are crimes
of violence—and thus, violent felonies—precisely because the statute
requires a mens rea greater than recklessness”); see also United States v.
Morton, No. 21-10291, 2022 WL 17076203, at *1 (9th Cir. Nov. 18,
2022) (same).
8
In a post-Borden case, United States v. Begay, our en banc court held
that second-degree murder under 18 U.S.C. § 1111(a), which requires an
“extreme recklessness” mens rea, constitutes a crime of violence. 33
F.4th at 1093–94. The Begay court held that second-degree murder is a
crime of violence because, unlike crimes committed with simple
recklessness, the recklessness required for second-degree murder must
be “extreme,” and the risk disregarded must specifically be a risk to
human life. Id. at 1094–95. Section 245 does not involve the type of
extreme recklessness at issue in Begay, and thus Begay does not control
the outcome here.
22 USA V. GOMEZ
of violence. A conviction can also constitute a crime of
violence if it falls within a narrow category of enumerated
offenses. U.S.S.G. § 4B1.2(a)(2) (specifying several
offenses that constitute crimes of violence: “murder,
voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion, or the use or
unlawful possession of a firearm”). The government argues
that § 245(a)(1) meets the definition for aggravated assault
under the enumerated offenses clause. But aggravated
assault under the enumerated offenses clause requires a mens
rea greater than extreme recklessness. United States v.
Garcia-Jimenez, 807 F.3d 1079, 1085 (9th Cir. 2015). And
as explained above, § 245(a)(1) does not limit its scope to
uses of force with a mens rea greater than recklessness, let
alone extreme recklessness. It thus does not constitute
aggravated assault under the enumerated offenses clause.
CONCLUSION
For the foregoing reasons, convictions under California
Penal Code § 245(a)(1) are not crimes of violence and
cannot serve as the predicate for the career offender
enhancement. The district court thus improperly applied the
career offender enhancement to Gomez at sentencing. We
remand for the district court to correct this error and
resentence Gomez accordingly.
VACATED and REMANDED.
USA V. GOMEZ 23
SOTO, District Judge, concurring:
I agree with the majority that § 245(a) of the California
Penal Code criminalizes conduct with a mental state short of
recklessness, and therefore does not constitute a crime of
violence according to Borden v. United States, 593 U.S. 420
(2021). However, an en banc panel of this circuit reached a
different conclusion in a case concerning substantively the
same facts and law. See United States v. Begay, 33 F.4th
1081 (9th Cir. 2022) (holding that a second-degree-murder
conviction under 18 U.S.C. § 1111(a) is a crime of violence).
The majority opinion distinguishes Begay on the ground that
a conviction under § 1111 requires “extreme recklessness”
while a conviction under § 245 requires only “ordinary
recklessness.” For the reasons explained below, I do not
believe this distinction fully addresses the tension that Begay
creates with Borden. Further, I believe this conflict may lead
to inconsistent outcomes in future cases and that en banc
review may be appropriate to resolve this conflict.
I.
Borden held that a crime of violence requires the
“targeted” use of force. A crime of violence must include the
“use, attempted use, or threatened use of physical force
against the person or property of another.” 1 U.S.S.G.
§ 4B1.2(a)(1). In Borden, a plurality of the Supreme Court
held that “[t]he phrase ‘against another,’ when modifying the
‘use of force,’ demands that the perpetrator direct his action
at, or target, another individual.” 2 593 U.S. at 429.
1
This language, in its various appearances across federal law, is called
the “elements clause.”
2
The plurality opinion from Borden is binding for the reasons articulated
in footnote 2 of the majority opinion.
24 USA V. GOMEZ
Therefore, a crime of violence requires that a perpetrator
direct his action at, or target, another individual. 3 Because
“reckless conduct is not aimed in that prescribed manner,” a
crime that can be committed with a reckless mens rea is not
a crime of violence. Id.
II.
Begay outlines conduct that satisfies Borden’s
“targeting” requirement. In Begay, a post-Borden en banc
panel concluded that second-degree murder under 18 U.S.C.
§ 1111(a) constitutes a crime of violence. 33 F.4th at 1096.
Second-degree murder is the unlawful killing of a human
being with malice aforethought. § 1111(a). “Malice
aforethought” encompasses “four kinds of mental states:
(1) intent to kill; (2) intent to do serious bodily injury;
(3) depraved heart (i.e., reckless indifference); and (4) intent
to commit a felony.” United States v. Pineda-Doval, 614
3
The plurality used the following example to illustrate the “targeting”
requirement:
A commuter who, late to work, decides to run a red
light, and hits a pedestrian whom he did not see. The
commuter has consciously disregarded a real risk, thus
endangering others. And he has ended up making
contact with another person, as the Government
emphasizes. See Brief for United States 23. But as the
Government just as readily acknowledges, the reckless
driver has not directed force at another: He has not
trained his car at the pedestrian understanding he will
run him over. See id., at 26. . . . [B]ecause his conduct
is not opposed to or directed at another—he does not
come within the elements clause. He has not used force
“against” another person in the targeted way that the
clause requires.
593 U.S. at 432.
USA V. GOMEZ 25
F.3d 1019, 1038 (9th Cir. 2010). Because the en banc panel
reasoned that depraved-heart murder encompasses the “least
culpable conduct” for a conviction under § 1111, 4 the panel
analyzed whether depraved-heart murder requires a
perpetrator to “direct his action at, or target” another
individual. Begay, 33 F.4th at 1091. In concluding that it
does, the panel held that any conviction under § 1111
constitutes a federal crime of violence. Id. at 1093.
Judge Ikuta dissented, highlighting the many ways that a
conviction under § 1111 can be sustained without a
perpetrator “direct[ing]” or “target[ing]” their force at
another individual. Begay, 33 F.4th at 1103-04 (citing
United States v. Merritt, 961 F.3d 1105, 1118 (10th Cir.
2020) (upholding depraved-heart murder conviction for a
defendant who was driving drunk in the wrong lane resulting
in the death of another motorist); United States v. Sheffey, 57
F.3d 1419, 1431 (6th Cir. 1995) (upholding depraved-heart
murder conviction for a defendant who was driving under
the influence, resulting in the death of another motorist,
despite the defendant's testimony “that he did not intend to
hurt anybody”); State v. Davidson, 267 Kan. 667, 987 P.2d
335, 344 (1999) (upholding depraved-heart murder
conviction for a defendant whose dogs escaped and mauled
a child to death after the defendant failed to properly train
and secure them); People v. Arzon, 92 Misc.2d 739, 401
N.Y.S.2d 156, 157, 159 (N.Y. Sup. Ct. 1978) (charging a
defendant with depraved-heart murder after he set fire to a
couch in an abandoned building which later contributed to
the death of a responding fireman)).
4
The categorical approach requires the court to analyze whether the
“least culpable conduct” criminalized by a statute satisfies the federal
elements clause.
26 USA V. GOMEZ
Nevertheless, under the majority’s reasoning in Begay,
the above-cited conduct satisfies the “targeting” requirement
articulated in Borden.
III.
This panel looks at identical conduct to that outlined in
Begay and concludes that it does not satisfy Borden’s
“targeting” requirement. In her dissent, Judge Ikuta cites
Stallard v. State, 209 Tenn. 13, 348 S.W.2d 489, 490 (1961),
a case that would satisfy Borden’s targeting requirement
under the Begay majority’s reasoning. In that case, the
defendant was convicted of second-degree murder for killing
another motorist after he drove on the wrong side of the road
while racing another vehicle. Id. at 490. The defendant, who
was racing his friend up a hill, collided with the victim’s
vehicle at the crest, never slowing his speed, presumably
because he never saw the victim’s car before impact. Id.
In contrast, the majority here relies on People v.
Aznavoleh, 210 Cal. App. 4th 1181, 148 Cal. Rptr. 3d 901,
903 (2012), as an example of a case that does not satisfy
Borden’s “targeting” requirement. In that case, the defendant
was convicted of assault with a deadly weapon for severely
injuring another motorist after he deliberately ran a red light
while racing another vehicle on a busy city street. Id. at
1183-84. There, the defendant saw the victim’s car entering
the intersection on the green and never slowed his speed,
despite his passenger imploring him to stop. Id. at 1189.
An inescapable tension arises when two panels look at
nearly identical conduct and reach different conclusions. The
majority here attempts to create a meaningful distinction
between these cases, stating that the modifier “extreme”
before the word “reckless” makes § 1111 conduct more
USA V. GOMEZ 27
“targeted” than § 245 conduct. The majority elevates form
over substance.
It is true that while § 1111 requires a mens rea of
“extreme” recklessness to sustain a conviction, an individual
can be convicted under § 245 for conduct that is merely
reckless. One could therefore interpret § 1111 as requiring a
higher degree of culpability than § 245, seemingly satisfying
Borden’s “greater-than-recklessness” standard. But this
interpretation ignores Borden’s targeting requirement.
Indeed, “greater than recklessness” is not the mens rea
standard articulated in Borden. Rather, it is a
characterization of a mental state that satisfies Borden’s
“targeted” or “directed” use of force requirement. See
Borden, 593 U.S. at 429 (“The phrase ‘against another,’
when modifying the ‘use of force,’ demands that the
perpetrator direct his action at, or target, another individual.
Reckless conduct is not aimed in that prescribed manner.”).
Adding the modifier “extreme” before “recklessness”
does not make the least culpable conduct criminalized under
§ 1111 any more targeted than the least culpable conduct
criminalized under § 245. Rather, the function of “extreme”
is to add the “human-life” element. 5 The human-life element
only pertains to the consequences of one’s actions, namely
the loss of human life. I do not dispute that extreme
recklessness is more severe than ordinary recklessness, only
that the increase in severity is along an axis not relevant to
the Borden analysis. I see no meaningful distinction between
5
Unlike ordinary recklessness, which requires disregard of a substantial
and unjustifiable risk, extreme recklessness requires disregard for human
life. Begay at 443.
28 USA V. GOMEZ
the minimum level of targeting required for ordinary
recklessness and that required for extreme recklessness.
The tension between Begay and Borden has already led
to inconsistent results. Three subsequent Circuit decisions,
albeit unpublished, have concluded that the conduct required
for a conviction under § 245 satisfies Borden’s mens rea
requirement. United States v. Man, No. 21-10241, 2022 WL
17260489, at *1 (9th Cir. Nov. 29, 2022); United States v.
Morton, No. 21-10291, 2022 WL 17076203, at *1 (9th Cir.
Nov. 18, 2022); Paz-Negrete v. Garland, No. 16-73889,
2023 WL 4404348, at *1 (9th Cir. July 7, 2023). That is
because there is no meaningful distinction between the
conduct required to sustain a conviction under § 1111 and
the conduct required to sustain a conviction under § 245.
IV.
Under Begay, a conviction for a crime that requires no
“targeted” use of force whatsoever may constitute a crime of
violence. Begay treated depraved-heart murder, or reckless
indifference, as the least culpable mental state within the
ambit of malice aforethought. For reasons not articulated in
the opinion, the panel disregarded the fourth mental state, 6
intent to commit a felony. See Pineda-Doval, 614 F.3d at
1038.
The least culpable conduct criminalized by felony
murder does not involve the targeted use of force required
for a crime of violence under Borden. In fact, an individual
may be convicted for felony murder under § 1111 even if the
6
“Malice aforethought” encompasses “four kinds of mental states:
(1) intent to kill; (2) intent to do serious bodily injury; (3) depraved heart
(i.e., reckless indifference); and (4) intent to commit a felony.” United
States v. Pineda-Doval, 614 F.3d at 1038.
USA V. GOMEZ 29
resulting death is entirely unforeseeable. 7 Take for example
a drug dealer who intentionally sells drugs unknowingly
laced with a deadly chemical, resulting in the death of the
buyer. Or an arsonist who sets an abandoned building on fire,
resulting in the death of a responding firefighter. Or an
individual who robs a bank, resulting in a customer’s death
by heart attack 15-20 minutes later. Under the Begay panel’s
reasoning these actors’ conduct would sustain a conviction
under § 1111, and therefore constitute categorical crimes of
violence. However, these actors never targeted the victims
with physical force, as required by the elements clause.
V.
I agree with the majority that § 245 does not constitute a
crime of violence; this holding is consistent with the
Supreme Court’s directive in Borden. I also believe the
majority opinion cannot be reconciled with the en banc
decision in Begay. It is not for me to say how this
inconsistency should be resolved; however, it is my
obligation to call attention to what I fear will precipitate
confusion and disparate outcomes in future cases.
7
See People v. Dillon, 34 Cal.3d 441, 477, 194 Cal.Rptr. 390, 668 P.2d
697 (1983) (holding that first-degree felony murder includes “a variety
of unintended homicides resulting from reckless behavior, or ordinary
negligence, or pure accident; it embraces both calculated conduct and
acts committed in panic or rage, or under the dominion of mental illness,
drugs, or alcohol; and it condemns alike consequences that are highly
probable, conceivably possible, or wholly unforeseeable.”).