United States v. Gomez

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-

JVS-FWS-5

v.

JESUS RAMIRO GOMEZ, AKA

Hunter, OPINION

Defendant - Appellant.

Appeal from the United States District Court

for the Central District of California

James V. Selna, Senior District Judge, Presiding

Argued and Submitted En Banc September 9, 2025

San Francisco, California

Filed January 13, 2026

Before: Mary H. Murguia, Chief Judge, and Ronald M.

Gould, Milan D. Smith, Jr., Jacqueline H. Nguyen, Ryan D.

Nelson, Eric D. Miller, Daniel P. Collins, Lucy H. Koh,

Jennifer Sung, Holly A. Thomas, and Ana de Alba, Circuit

Judges.

Opinion by Judge H.A. Thomas;

Concurrence by Judge Collins

2 USA V. GOMEZ

SUMMARY*

Criminal Law

The en banc court affirmed the district court’s judgment

in a case in which the district court found that Jesus Ramiro

Gomez, who pleaded guilty to distribution of

methamphetamine, was subject to a career offender

enhancement under U.S.S.G. § 4B1.1(a) because his prior

conviction for assault with a deadly weapon under California

Penal Code § 245(a)(1) was a crime of violence—a

classification Gomez did not challenge until his opening

brief on appeal.

The government argued that Gomez’s unpreserved

challenge should be reviewed only for plain error under

Federal Rule of Criminal Procedure 52. In a long series of

decisions, this court previously held that where the appeal

presents a pure question of law and there is no prejudice to

the opposing party, this court may review de novo rather

than for plain error. Applying this exception, a three-judge

panel reviewed de novo whether a conviction under Section

245(a)(1) constitutes a crime of violence and concluded that

it did not.

The en banc court overruled the precedent recognizing a

“pure question of law” exception to Rule 52 and held that

unpreserved claims of legal error may be reviewed only for

plain error.

*

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

The en banc court further held that, in light of the

Supreme Court’s decision in Borden v. United States, 593

U.S. 420 (2021), a conviction under California Penal Code

§ 245(a)(1) does not qualify as a crime of violence, given

that Section 245(a)(1) does not require the intentional

application of force against another. The en banc court

therefore overruled this court’s pre-Borden decisions

holding that Section 245(a)(1) is a crime of violence under

Section 4B1.1(a) and held that the district court erred when

it ruled to the contrary in Gomez’s case.

But the en banc court concluded that the district court’s

error was not plain. In so concluding, the en banc court

noted that in the years since Borden, this court continued to

rely upon pre-Borden decisions to reject arguments that

Section 245(a)(1) is not a crime of violence, and that the

decision the en banc court reaches today is a close and

difficult one. The en banc court therefore affirmed the

district court’s judgment.

Judge Collins concurred in part and concurred in the

judgment. He agreed with the court’s decision to overrule

its precedent recognizing unwritten exceptions to the plain

error standards set forth in Federal Rule of Criminal

Procedure 52(b). He also agreed with the majority’s

ultimate judgment affirming Gomez’s sentence, but he

reached that conclusion by a different route. He wrote that

the court should adhere to its precedent holding that a

conviction for assault with a deadly weapon under California

Penal Code § 245(a)(1) qualifies as a “crime of violence,”

because that caselaw is not inconsistent with the Supreme

Court’s decision in Borden. Consequently, he would hold

that the district court did not err at all, and not merely that it

did not commit a plain error.

4 USA V. GOMEZ

COUNSEL

Alexander P. Robbins (argued), Assistant United States

Attorney, Deputy Chief; Bram M. Alden and David R.

Friedman, Assistant United States Attorneys, Chiefs;

Criminal Appeals Section; Mack E. Jenkins, Assistant

United States Attorney, Chief, Criminal Division; E. Martin

Estrada, United States Attorney; Office of the United States

Attorney, United States Department of Justice, Los Angeles,

California; Robert J. Keenan, Assistant United States

Attorney, Santa Ana Section, Office of the United States

Attorney, United States Department of Justice, Santa Ana,

California; for Plaintiff-Appellee.

Todd W. Burns (argued), Burns & Cohan Attorneys at Law,

San Diego, California, for Defendant-Appellant.

Kara Hartzler, Appellate Attorney; Vincent Brunkow, Chief

Appellate Attorney; Kasha Castillo, Executive Director;

Federal Defenders of San Diego Inc., San Diego, California;

Fidel Cassino-DuCloux, Federal Public Defender, Office of

the Federal Public Defender, Portland, Oregon; Colin

Fieman, Federal Public Defender, Office of the Federal

Public Defender, Seattle, Washington; Andrea George,

Executive Director, Federal Defenders of Eastern

Washington and Idaho, Spokane, Washington; Rachel

Julagay, Executive Director, Federal Defenders of Montana

Inc., Great Falls, Montana; Salina M. Kanai, Federal Public

Defender, Office of the Federal Public Defender, Honolulu,

Hawaii; Jodi Linker, Federal Public Defender, Office of the

Federal Public Defender, San Francisco, California; Leilani

V. Lujan, Federal Public Defender, Office of the Federal

Public Defender, Mongmong, Guam; Jamie McGrady,

Federal Public Defender, Office of the Federal Public

Defender, Anchorage, Alaska; Cuauhtemoc Ortega, Federal

USA V. GOMEZ 5

Public Defender, Office of the Federal Public Defender, Los

Angeles, California; Nicole Owens, Executive Director,

Federal Defender Services of Idaho, Boise, Idaho; Jon M.

Sands, Federal Public Defender, Office of the Federal Public

Defender, Phoenix, Arizona; Rene L. Valladares, Federal

Public Defender, Office of the Federal Public Defender, Las

Vegas, Nevada; Heather Williams, Federal Public Defender,

Office of the Federal Public Defender, Sacramento,

California; for Amici Curiae Ninth Circuit Federal Public

and Community Defender Offices.

OPINION

H.A. THOMAS, Circuit Judge:

Jesus Ramiro Gomez pleaded guilty to distribution of

methamphetamine. At sentencing, the district court found

that he was subject to a career offender enhancement and

sentenced him to 188 months’ imprisonment. In applying the

enhancement, the district court determined that Gomez’s

prior conviction for assault with a deadly weapon under

California Penal Code § 245(a)(1) was a crime of violence—

a classification Gomez did not challenge until his opening

brief on appeal.

The government argued that Gomez’s unpreserved

challenge should be reviewed only for plain error under

Federal Rule of Criminal Procedure 52. In a long series of

decisions, however, we had previously held that “where the

appeal presents a pure question of law and there is no

prejudice to the opposing party,” we may review de novo

rather than for plain error. United States v. Gonzalez-

6 USA V. GOMEZ

Aparicio, 663 F.3d 419, 426 (9th Cir. 2011). Applying this

exception, a three-judge panel of our court reviewed de novo

whether a conviction under Section 245(a)(1) constitutes a

crime of violence and concluded that it did not. See United

States v. Gomez, 115 F.4th 987, 999 (9th Cir. 2024), vacated

and reh’g en banc granted, 133 F.4th 1083 (9th Cir. 2025).

We have jurisdiction over this appeal under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a). Sitting en banc, we now

overrule our precedent recognizing a “pure question of law”

exception to Rule 52 and hold that unpreserved claims of

legal error may be reviewed only for plain error. We further

hold that, in light of the Supreme Court’s decision in Borden

v. United States, 593 U.S. 420 (2021), a conviction under

California Penal Code § 245(a)(1) does not qualify as a

crime of violence. But because the district court’s error in

concluding otherwise was not plain, we affirm the district

court’s judgment.

I.

Pursuant to the Sentencing Reform Act and the United

States Sentencing Guidelines (“U.S.S.G.”), the “career

offender” enhancement applies when a defendant is

sentenced for a controlled substance offense or a “crime of

violence” and has two prior such convictions. U.S.S.G.

§ 4B1.1(a) (U.S. Sent’g Comm’n 2018); see also 28 U.S.C.

§ 994(h) (directing the Sentencing Commission to include

such a provision in the Guidelines). For purposes of this

enhancement, a crime of violence is defined in part as “any

offense under federal or state law, punishable by

imprisonment for a term exceeding one year, 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). This portion of the definition is known as the

USA V. GOMEZ 7

“elements clause.” United States v. Davis, 588 U.S. 445,

451–52 (2019) (referring to the corresponding clause of

multiple similar statutory definitions of violent crimes as the

“elements clause”).

Courts employ the “categorical approach” to determine

whether a conviction constitutes a qualifying offense under

Section 4B1.2(a). See United States v. Prigan, 8 F.4th 1115,

1118–19 (9th Cir. 2021); see also Borden, 593 U.S. at 424

(plurality opinion) (applying categorical approach to the

comparable elements clause in § 924(e)(2)(B)(i)); Taylor v.

United States, 495 U.S. 575, 602 (1990) (describing

categorical approach). Under this approach, a court must

examine whether a conviction “fits within the scope of a

generically defined crime, such as . . . a ‘crime of violence.’”

United States v. Ellsworth, 456 F.3d 1146, 1152 (9th Cir.

2006); see also Borden, 593 U.S. at 424 (plurality opinion)

(“The focus is . . . on whether the elements of the statute of

conviction meet the federal standard.”). When applying the

categorical approach, “the facts of a given case are

irrelevant.” Borden, 593 U.S. at 424 (plurality opinion).

Instead, courts focus only on “whether the elements of the

statute of conviction meet the federal” crime of violence

definition. Id. If, when conducting this examination, a court

determines that the statute of conviction makes unlawful any

conduct less culpable than that required to constitute a crime

of violence, then there is “not a categorical match.” United

States v. Begay, 33 F.4th 1081, 1091 (9th Cir. 2022) (en

banc).

In 2022, Gomez pleaded guilty to distribution of

methamphetamine. See 21 U.S.C. § 841(a)(1),

(b)(1)(A)(viii). At sentencing, the district court applied a

career offender enhancement because, in addition to

Gomez’s latest conviction for distribution of

8 USA V. GOMEZ

methamphetamine and a previous conviction for possession

of cocaine for sale, he had also previously been convicted of

assault with a deadly weapon under California Penal Code

§ 245(a)(1), which the court determined was a “crime of

violence” under Section 4B1.1(a). The application of the

career offender enhancement increased Gomez’s adjusted

offense level from 27 to 34 1 and his advisory sentencing

range from 130–162 to 262–327 months’ imprisonment. The

district court sentenced Gomez to 188 months’

imprisonment.

Gomez did not object to the district court’s finding that

his Section 245(a)(1) conviction was a crime of violence. He

raised this challenge for the first time on appeal. Reviewing

that challenge, the three-judge panel vacated Gomez’s

sentence and remanded the case to the district court for

resentencing. See Gomez, 115 F.4th at 999. Applying our

“pure question of law” exception to plain error review, the

panel exercised its discretion to review Gomez’s

unpreserved legal challenge de novo. See id. at 990–92; see

also United States v. Eckford, 77 F.4th 1228, 1231 (9th Cir.

2023). The panel held that a Section 245(a)(1) conviction is

not a crime of violence and thus could not serve as a

predicate offense for the career offender enhancement.

Gomez, 115 F.4th at 992–99. We vacated that decision after

a majority of the nonrecused active judges on our court voted

to rehear this matter en banc. See Gomez, 133 F.4th at 1083.

1

The district court applied a three-level downward adjustment to the

base offense level for Gomez accepting responsibility. See U.S.S.G.

§ 3E1.1(a), (b).

USA V. GOMEZ 9

II.

We first address the applicable standard of review for an

unpreserved claim of error.

Under Federal Rule of Criminal Procedure 52(a), “[a]ny

error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.” Fed. R. Crim. P.

52(a). But under Rule 52(b), “[a] plain error that affects

substantial rights may be considered even though it was not

brought to the [district] court’s attention.” Fed. R. Crim. P.

52(b).

The import of Rule 52 could hardly be clearer: if an error

is not plain or does not affect substantial rights, it must be

ignored if it was not raised below. Although this concept has

gone more or less unchanged since the Federal Rules of

Criminal Procedure were put into place in 1944, beginning

in the late 1970s, our court created an exception to plain error

review. In 1978, relying on several decisions in non-criminal

cases, we held in United States v. Patrin that although “[a]s

a general rule, ‘a federal appellate court does not consider an

issue not passed upon below,’” there nevertheless existed a

“narrow exception to the general rule” for situations where

“the issue conceded or neglected in the trial court is purely

one of law and . . . does not affect or rely upon the factual

record developed by the parties.” 575 F.2d 708, 712 (9th Cir.

1978) (quoting Singleton v. Wulff, 428 U.S. 106, 120

(1976)). Our decision in Patrin did not mention Rule 52(b).

See generally id.

A series of conforming decisions followed. See, e.g.,

Guam v. Okada, 694 F.2d 565, 570 n.8 (9th Cir. 1982),

opinion amended on denial of reh’g, 715 F.2d 1347 (9th Cir.

1983); United States v. Whitten, 706 F.2d 1000, 1012 (9th

Cir. 1983); United States v. Rubalcaba, 811 F.2d 491, 493

10 USA V. GOMEZ

(9th Cir. 1987); United States v. Carlson, 900 F.2d 1346,

1349 (9th Cir. 1990). By the early 1990s, we had clearly

delineated a category of criminal appeals presenting “pure

questions of law” to which we could apply de novo review,

which existed alongside those to which plain error applied.

For instance, in United States v. Flores-Payon, we held that

our “narrow exceptions to the general rule against review on

appeal of issues not raised below” included situations where

“the issue presented is purely one of law and the opposing

party will suffer no prejudice as a result of the failure to raise

the issue in the trial court,” and observed that “[f]urther

exception may be made when plain error has occurred and

an injustice might otherwise result.” 942 F.2d 556, 558 (9th

Cir. 1991) (first citing Carlson, 900 F.2d at 1349; United

States v. Smith, 905 F.2d 1296, 1302 (9th Cir. 1990); then

citing Whitten, 706 F.2d at 1012; Fed. R. Crim. P. 52).

By the early aughts, however, the Supreme Court had

made clear that appellate courts have limited authority to

review unpreserved legal issues. First, in Jones v. United

States, the Court rejected the argument that the Federal

Death Penalty Act of 1994 created an exception to Rule

52(b)’s plain error review. See 527 U.S. 373, 388–89 (1999).

Then, in United States v. Vonn, the Court held that “a

defendant who lets Rule 11 error pass without objection in

the trial court . . . has the burden to satisfy the plain-error

rule,” despite the expression of a harmless error standard in

Rule 11(h). 535 U.S. 55, 58–59 (2002). The Court

emphasized that to hold otherwise would “amount to finding

a partial repeal of Rule 52(b) by implication”—a

“disfavored” result. Id. at 65.

In 2009, the Court further “cautioned that ‘[a]ny

unwarranted extension’ of the authority granted by Rule

52(b) would disturb the careful balance it strikes between

USA V. GOMEZ 11

judicial efficiency and the redress of injustice, and that the

creation of an unjustified exception to the Rule would be

‘[e]ven less appropriate.’” Puckett v. United States, 556 U.S.

129, 135–36 (2009) (alterations in original) (citation

omitted) (first quoting United States v. Young, 470 U.S. 1,

15 (1985); and then quoting Johnson v. United States, 520

U.S. 461, 466 (1997)). Holding that “a forfeited claim that

the Government has violated the terms of a plea agreement

is subject to the plain-error standard of review,” the Court

noted that the “real question in this case is not whether plain-

error review applies . . . , but rather what conceivable reason

exists for disregarding its evident application.” Id. at 131,

136 (emphasis in original). The Court underlined that while

the breach of a plea agreement was “undoubtedly a violation

of the defendant’s rights, . . . the defendant has the

opportunity to seek vindication of those rights in district

court; if he fails to do so, Rule 52(b) as clearly sets forth the

consequences for that forfeiture as it does for all others.” Id.

at 136 (citation omitted).

After Puckett, it should arguably have been beyond

debate that our application of a “pure question of law”

exception to plain error review could not survive. What, after

all, could “all others” have referred to if not the remainder of

forfeited errors that a defendant might raise on appeal?

Indeed, as at least one of our colleagues has observed, “our

sister circuits routinely review pure questions of law for

plain error.”2 United States v. Zhou, 838 F.3d 1007, 1016

(9th Cir. 2016) (Graber, J., concurring).

2

See, e.g., United States v. Bennett, 469 F.3d 46, 50 (1st Cir. 2006);

United States v. Gamez, 577 F.3d 394, 397 (2d Cir. 2009) (per curiam);

United States v. Henderson, 64 F.4th 111, 116–17 (3d Cir. 2023); United

States v. Carthorne, 726 F.3d 503, 509 (4th Cir. 2013); United States v.

12 USA V. GOMEZ

To be sure, our application of a “pure question of law”

exception to Rule 52(b) has not gone unquestioned. See, e.g.,

Begay, 33 F.4th at 1090 n.3 (“The government did not ask

us to revisit our precedent allowing the application of de

novo review to pure questions of law where we are satisfied

the government will not be prejudiced. And because the

outcome is the same regardless of what standard we apply,

we need not consider whether that precedent can be

reconciled with the Supreme Court’s cases interpreting

Federal Rule of Criminal Procedure 52(b).” (citations

omitted)); United States v. Castillo, 69 F.4th 648, 653 (9th

Cir. 2023) (“[T]he assumption that de novo review applies

to purely legal questions that have not been argued below

has been called into question both by our court and by the

Supreme Court.”). Nevertheless, we have as a court

continued to reaffirm and reapply the principle that we “are

not limited to [plain error] review when we are presented

with [1] a question that is purely one of law and [2] where

the opposing party will suffer no prejudice as a result of the

failure to raise the issue in the trial court.” Eckford, 77 F.4th

at 1231 (alterations in original) (quoting United States v.

McAdory, 935 F.3d 838, 841–42 (9th Cir. 2019)); see also,

e.g., United States v. Garcia-Lopez, 903 F.3d 887, 892 (9th

Cir. 2018).

The time has come for us to right our course. We

“creat[ed] out of whole cloth” a pure question of law

Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012); United States v.

Woodruff, 735 F.3d 445, 448 (6th Cir. 2013); United States v. Jaimes-

Jaimes, 406 F.3d 845, 849 (7th Cir. 2005); United States v. Ellis, 127

F.4th 1122, 1126 (8th Cir. 2025); United States v. Gonzalez-Jaquez, 566

F.3d 1250, 1251 (10th Cir. 2009); United States v. Laines, 69 F.4th 1221,

1233 (11th Cir. 2023); United States v. Williams, 358 F.3d 956, 966

(D.C. Cir. 2004).

USA V. GOMEZ 13

exception to Rule 52(b)—an exception that is incompatible

with Supreme Court precedent and the plain language of the

Rule. See Johnson, 520 U.S. at 466. We now overrule our

precedent establishing such an exception. Because Gomez

did not object in the district court to the classification of his

Section 245(a)(1) conviction as a crime of violence, his

claim is reviewable only for plain error. See Fed. R. Crim. P.

52(b). To prevail in this appeal, Gomez must therefore

demonstrate that the district court (1) committed an error

(2) that is plain and that (3) affects his substantial rights. See

Greer v. United States, 593 U.S. 503, 507–08 (2021). If

those three requirements are satisfied, we have discretion to

remedy the error if it “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.”

Puckett, 556 U.S. at 135 (alteration in original) (quoting

United States v. Olano, 507 U.S. 725, 736 (1993)).

III.

Applying the standard set forth above, we turn next to

whether the district court erred in determining that assault

with a deadly weapon under California Penal Code

§ 245(a)(1) is a crime of violence.

A.

We have observed that, under the categorical approach,

the least culpable act criminalized under the statute of

conviction must involve the level of force described in the

federal crime of violence definition. See Begay, 33 F.4th at

1091. If the statute criminalizes any conduct less culpable

than the federal definition’s requirement, “the statute is not

a categorical match,” and a conviction under that statute does

not qualify as a crime of violence. Id. Gomez argues that

assault with a deadly weapon under Section 245(a)(1) does

not match the “elements clause” of U.S.S.G. § 4B1.2(a)(1)

14 USA V. GOMEZ

because Section 245(a)(1) criminalizes a lesser mens rea

than the federal definition. We agree.

In Borden, the Supreme Court determined that a

defendant’s conviction for reckless aggravated assault under

Tennessee law did not satisfy the elements clause because

that clause requires the statute of conviction to have a mens

rea greater than recklessness. See 593 U.S. at 445 (plurality

opinion). The plurality concluded that the mens rea

requirement stems from the language in the elements clause

requiring that force be used “against the person of another.”

Id. at 429. The plurality 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 (quoting Model Penal Code

§ 2.02(2)(c) (1985)). The Model Penal Code defines the

most culpable mens rea—purpose—as when a person

“‘consciously desires’ a particular result.” Id. at 426 (quoting

United States v. Bailey, 444 U.S. 394, 404 (1980)). The

plurality concluded 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. See id. at

446 (Thomas, J., concurring). His analysis, however, relied

on a different phrase in the statute: “use of physical force.”

Id. 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

USA V. GOMEZ 15

“could be violated through mere recklessness,” it did not

satisfy the elements clause. Id.

As we held in United States v. Davis, “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. 825 F.3d 1014, 1021–

22 (9th Cir. 2016) (en banc); see also Marks v. United States,

430 U.S. 188, 193 (1977) (explaining that the holding of the

Court in a plurality opinion is the narrowest ground agreed

upon by at least five Justices). In Borden, the four-justice

plurality and Justice Thomas agreed that a mens rea of

recklessness is insufficient to satisfy the elements clause.

The plurality opinion is narrower than Justice Thomas’s

opinion because Justice Thomas would have held that the

elements clause encompasses only “intentional acts

designed to cause harm.” Borden, 593 U.S. at 446 (Thomas,

J., concurring) (quoting Voisine, 579 U.S. at 713 (Thomas,

J., dissenting)). Even if we had not articulated the plurality’s

reasoning in our decision in Begay, see 33 F.4th at 1092–94,

it would therefore be binding upon us. And, indeed, the

government now agrees that the plurality opinion must be

treated as controlling.

Following Borden, the elements clause is satisfied only

by crimes that require uses of force with a mens rea more

culpable than recklessness. Stated differently, 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,” then the crime is not a

16 USA V. GOMEZ

crime of violence. 3 Borden, 593 U.S. at 427 (plurality

opinion).

B.

Gomez was 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. See

id. We thus look to the California Supreme Court’s

interpretation of the statute to determine the requisite mens

rea requirement. See Johnson v. United States, 559 U.S. 133,

138 (2010) (explaining that while interpreting the elements

clause is a question of federal law, we are bound by the state

court’s “interpretation of state law, including its

determination of the elements” of the relevant crime).

The California Supreme Court has held that the requisite

mens rea for a conviction under Section 245(a)(1) 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.” People v. Williams, 29 P.3d 197, 204 (Cal. 2001).

Section 245(a)(1), therefore, 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.

3

Our holding in Begay is consistent with this conclusion. See 33 F.4th at

1093–95. In Begay, we held that crimes committed with “extreme

recklessness” or a “depraved heart” satisfy the elements clause because

they require sufficient awareness of the risk to constitute active uses of

force against another person. Id.

USA V. GOMEZ 17

“A person acts purposefully when he ‘consciously

desires’ a particular result.” Borden, 593 U.S. at 426

(plurality opinion) (quoting Bailey, 444 U.S. at 404). Under

Williams, Section 245(a)(1) does not require an intent to

cause harm; it merely requires an intent to do an act that

results in harm. A defendant need not have “specific intent

to cause injury or a subjective awareness of the risk that an

injury might occur.” Williams, 29 P.3d at 204; see also

People v. Wyatt, 229 P.3d 156, 158 (Cal. 2010) (“[T]he

criminal intent required for assault is ‘the general intent to

wilfully commit an act the direct, natural and probable

consequences of which if successfully completed would be

the injury to another.’” (quoting People v. Rocha, 479 P.2d

372, 376–77 (Cal. 1971))). The “intentional act” requirement

in Section 245(a)(1) requires only that the act in question be

volitional. See Williams, 29 P.3d at 201 (“The pivotal

question is whether the defendant intended to commit an act

likely to result in such physical force, not whether he or she

intended a specific harm.” (quoting People v. Colantuono,

865 P.2d 704, 712 (Cal. 1994))). It does not require the

intentional application of force against another.4

4

Our decision in Gutierrez v. Garland, 106 F.4th 866 (9th Cir. 2024), is

consistent with this conclusion. In Gutierrez, we held that carjacking

under California Penal Code § 215 is not categorically a crime of

violence. See id. at 871–77. Even though carjacking under California law

necessarily involves the act of taking a vehicle with the intent to deprive

its owner of that vehicle, we reasoned that the elements clause also

requires a sufficiently culpable mens rea as to the use of force. See id. at

874–77. Our decision in Gutierrez demonstrates that when a state statute

does not assign a sufficiently culpable mens rea to the use of force—as

opposed to other elements of the crime—it fails to satisfy the elements

clause. See id. at 876 (“That California courts do not consider a

defendant’s mens rea as to [the use of force] element [of carjacking]

18 USA V. GOMEZ

A person “acts knowingly when ‘he is aware that [a]

result is practically certain to follow from his conduct,’

whatever his affirmative desire.” Borden, 593 U.S. at 426

(plurality opinion) (alteration in original) (quoting Bailey,

444 U.S. at 404). The government argues that Section

245(a)(1) requires, at the very least, a knowing use of force.

But such a reading is incompatible with the California

Supreme Court’s holding, recited above, that assault “does

not require . . . a subjective awareness” of the risk of injury

the defendant has created. Williams, 29 P.3d at 204. While it

is true that—as the government emphasizes—the California

Supreme Court requires knowledge of the facts that make the

action the type of act likely to result in harm, this does not

equate to a subjective awareness that harm “is practically

certain” to result. Borden, 593 U.S. at 426 (plurality

opinion). Rather, as the California Supreme Court has

explained, even “a defendant who honestly believes that his

act was not likely to result in a battery is still guilty of assault

if a reasonable person, viewing the facts known to [the]

defendant, would find that the act would directly, naturally

and probably result in a battery.” Williams, 29 P.3d at 203

n.3. This falls far short of Borden’s definition of knowledge.5

Indeed, “knowledge of [the] . . . facts sufficient to establish

that the act by its nature will probably” result in force, id. at

further suggests that a defendant can be convicted for accidental or

reckless use of ‘force . . . .’”).

5

The government also points to a single sentence in Williams stating that

“mere recklessness or criminal negligence” is insufficient to satisfy

California’s assault statute. 29 P.3d at 203. But the California Supreme

Court explained that the quoted language uses the term 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.” Id. at 203 n.4.

USA V. GOMEZ 19

204, is less culpable even than Borden’s definition of

recklessness, which requires conscious disregard of a

substantial risk, 593 U.S. at 427 (plurality opinion).

Our concurring colleague disagrees, writing that the

requisite mens rea for a conviction under Section 245(a)(1)

is “a significantly more demanding mental state than the sort

of recklessness rejected in Borden.” Concurrence at 31. Our

colleague emphasizes that “a defendant who violates

§ 245(a)(1) must be shown to have intentionally committed

an act with actual subjective knowledge of circumstances

that objectively establish that a battery will directly occur as

a result.” Id. But, as explained, Section 245(a)(1) “does not

require . . . a subjective awareness of the risk that an injury

might occur.”6 Williams, 29 P.3d at 204. Awareness of the

facts that would cause a reasonable person to “find that the

act would directly, naturally and probably result in a

battery,” id. at 203 n.3, does not equate to awareness of the

risk. And a defendant who lacks a subjective awareness of

any risk cannot “consciously disregard[] a substantial and

unjustifiable risk.” Borden, 593 U.S. at 427 (plurality

opinion).

Accordingly, we overrule our pre-Borden decisions

holding that a conviction under Section 245(a)(1) is a crime

of violence under Section 4B1.1(a). See, e.g., United States

6

Our colleague writes that recklessness under Borden “did not require

that the risk of a battery ‘come anywhere close to a likelihood,’ Borden,

593 U.S. at 427 (plurality), whereas the Williams standard affirmatively

requires that a battery will be the ‘probabl[e] and direct[] result.’

Williams, 29 P.3d at 204.” Concurrence at 31. But the probability of the

risk of harm—even assuming that Williams requires a higher probability

than a substantial and unjustifiable risk—is not relevant to the mens rea

because Williams does not require a defendant to have any awareness of

that risk.

20 USA V. GOMEZ

v. Grajeda, 581 F.3d 1186, 1189–97 (9th Cir. 2009); United

States v. Jimenez-Arzate, 781 F.3d 1062, 1064–65 (9th Cir.

2015) (per curiam); United States v. Vasquez-Gonzalez, 901

F.3d 1060, 1065–68 (9th Cir. 2018). And we hold that the

district court erred when it ruled to the contrary in Gomez’s

case.7

IV.

We next consider whether the district court’s error was

plain. “[T]he Supreme Court has made clear that whether an

error is ‘plain’ for purposes of Rule 52(b) is judged ‘at the

time of review’ by the appellate court and not at the ‘time of

error.’” United States v. Irons, 31 F.4th 702, 713 (9th Cir.

2022) (emphasis in original) (quoting Henderson v. United

States, 568 U.S. 266, 273 (2013)). “The question, then, is

whether the district court’s [determination], ‘even if now

wrong (in light of the new appellate holding),’ should . . . be

characterized as ‘questionabl[y]’ wrong rather than ‘plainly

wrong.’” Id. (second alteration and emphasis in original)

(quoting Henderson, 568 U.S. at 278). This requires us to

assess “whether our analysis reveals the question at issue to

have a ‘plain’ answer or whether that analysis confirms that

we have instead answered a close and difficult question.” Id.

7

The government argues that, even if Section 245(a)(1) does not satisfy

the elements clause, it still meets the definition of a crime of violence

contained in the enumerated offenses clause. See U.S.S.G. § 4B1.2(a)(2)

(specifying that “murder, voluntary manslaughter, kidnapping,

aggravated assault, a forcible sex offense, robbery, arson, extortion, or

the use or unlawful possession of a firearm” constitute crimes of

violence). Aggravated assault under the enumerated offenses clause,

however, requires a mens rea greater than extreme recklessness. See

United States v. Garcia-Jimenez, 807 F.3d 1079, 1085 (9th Cir. 2015).

For the reasons explained above, Section 245(a)(1) does not meet that

standard.

USA V. GOMEZ 21

Undertaking that analysis, we conclude that the decision we

have reached today is a “close and difficult” one. Id.

Both before and after Borden, we have consistently held

that Section 245(a)(1) qualifies as a crime of violence. First,

in Grajeda, we held that Section 245(a)(1) was a crime of

violence because it requires “‘violent’ and ‘active’” force

and “not merely accidental” uses of force. 581 F.3d at 1195.

We were thus satisfied that the assault statute did not

criminalize merely “reckless” conduct. Id.

Next, in Jimenez-Arzate, we considered whether two

California cases undercut Grajeda’s holding and determined

that they did not. 781 F.3d at 1064–65. We explained that in

People v. Aznavoleh, 210 Cal. App. 4th 1181 (2012), the

California Court of Appeal upheld a conviction under

Section 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.” Jimenez-Arzate, 781 F.3d at 1064

(citing Aznavoleh, 210 Cal. App. 4th at 1185, 1189). And we

noted that in Wyatt, the California Supreme Court upheld a

conviction for manslaughter and assault on a child causing

death because “substantial evidence established that [the]

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 Wyatt, 229 P.3d at 157).

We held that these decisions did not demonstrate that

Section 245(a)(1) criminalizes conduct less culpable than the

elements clause requires. Id. at 1064–65. We observed that

the defendant in Aznavoleh “heedlessly disregard[ed] a

perceived likelihood of death or grave injury to others,” and

22 USA V. GOMEZ

that in Wyatt “a reasonable person would have recognized

the dangers” of the defendant’s actions. Id.

In our most recent pre-Borden decision on this issue, we

held that Section 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.

Although we quoted the California Supreme Court’s

conclusion in Williams that “recklessness or criminal

negligence” is insufficient under the assault statute, we did

not identify that, as discussed earlier, recklessness here was

a synonym for criminal negligence rather than a separate

mental state. See id. at 1067.

In the years since the Supreme Court decided Borden, we

have continued to rely upon these earlier decisions to reject

defendants’ arguments that Section 245(a)(1) is not a crime

of violence. Although these decisions are unpublished, they

demonstrate that we did not identify Borden as being

irreconcilable with our prior precedent. See, e.g., United

States v. Morton, No. 21-10291, 2022 WL 17076203, at *1

(9th Cir. Nov. 18, 2022) (“Morton argues that Borden v.

United States . . . abrogates [our] precedent. . . . We

previously held that section 245 offenses are crimes of

violence precisely because the statute requires a mens rea

greater than recklessness. Borden requires nothing more.”

(citations omitted)); United States v. Man, No. 21-10241,

2022 WL 17260489, at *1 (9th Cir. Nov. 29, 2022) (same);

Paz-Negrete v. Garland, No. 16-73889, 2023 WL 4404348,

at *1 (9th Cir. July 7, 2023) (“Paz-Negrete argues that

§ 245(a)(1) is broader than § 16(a) because its elements can

be satisfied by an offensive touching or reckless or negligent

conduct, but our court rejected both those arguments in

United States v. Grajeda . . . and United States v. Vasquez-

Gonzalez . . . . Because Grajeda and Vasquez-Gonzalez are

USA V. GOMEZ 23

binding authority, we conclude the IJ correctly determined

that Paz-Negrete’s § 245(a)(1) conviction constituted an

aggravated felony.”). And in Amaya v. Garland, we rejected

the argument that a crime of violence requires proof of

specific intent after Borden. 15 F.4th 976, 983 (9th Cir.

2021).

Given these decisions—and the analysis we have

undertaken above—we cannot conclude that the answer we

have reached today is plain. Cf. Irons, 31 F.4th at 713

(concluding that the “textual analysis” at issue there was

“sufficiently one-sided, and sufficiently dictate[d] the

answer” that it was plain error for the district court to reach

a different conclusion). Gomez has therefore not satisfied his

burden of showing that the district court committed plain

error when it applied the career offender enhancement to his

sentence. And, in light of that conclusion, we need not

answer whether the error affected Gomez’s substantial

rights.

V.

For the reasons discussed above, we overrule our

precedent recognizing a “pure question of law” exception to

Rule 52 and hold that forfeited claims of legal error are

subject to plain error review. We further conclude that

convictions under California Penal Code § 245(a)(1) are not

crimes of violence and cannot serve as the predicate for the

application of the career offender enhancement. But because

the district court’s error in concluding otherwise was not

plain, its judgment stands AFFIRMED.

24 USA V. GOMEZ

COLLINS, Circuit Judge, concurring in part and concurring

in the judgment:

I agree with the court’s decision to overrule our

precedent recognizing unwritten exceptions to the plain error

standards set forth in Federal Rule of Criminal Procedure

52(b). I therefore join section II of the court’s opinion. I

also agree with the majority’s ultimate judgment affirming

Jesus Ramiro Gomez’s sentence, but I reach that conclusion

by a very different route. Contrary to what the majority

concludes, I believe that we should adhere to our precedent

holding that a conviction for assault with a deadly weapon

under California Penal Code § 245(a)(1) qualifies as a

“crime of violence,” because that caselaw is not inconsistent

with the Supreme Court’s decision in Borden v. United

States, 593 U.S. 420 (2021). Consequently, I would hold

that the district court did not err at all, and not merely that it

did not commit a plain error. I therefore respectfully concur

in part and in the judgment.

I

In determining Gomez’s sentencing range under the

sentencing guidelines, the district court applied the career

offender enhancement contained in U.S.S.G. § 4B1.1(a).

That ruling rested dispositively on the district court’s

conclusion that Gomez’s prior conviction for assault with a

deadly weapon, in violation of California Penal Code

§ 245(a)(1), constituted a “crime of violence” within the

meaning of U.S.S.G. § 4B1.2(a). That conclusion was

dictated by our precedent holding that § 245(a)(1) is

categorically a crime of violence under the various

comparable definitions of that phrase in federal criminal law.

See United States v. Vasquez-Gonzalez, 901 F.3d 1060,

1065–68 (9th Cir. 2018); United States v. Jimenez-Arzate,

USA V. GOMEZ 25

781 F.3d 1062, 1064–65 (9th Cir. 2015); United States v.

Grajeda, 581 F.3d 1186, 1189–97 (9th Cir. 2009). Gomez

claims for the first time on appeal that this settled precedent

is no longer good law in light of Borden, and I agree with the

majority that we review this contention under the plain error

standards of Federal Rule of Criminal Procedure 52(b).

Under those standards, Gomez must first show that (1) there

was an error; (2) the error is plain; and (3) the error affects

Gomez’s “substantial rights, which generally means that

there must be a reasonable probability that, but for the error,

the outcome of the proceeding would have been different.”

Greer v. United States, 593 U.S. 503, 507–08 (2021)

(simplified). “If those three requirements are met, [we] may

grant relief if [we] conclude[] that the error had a serious

effect on the fairness, integrity or public reputation of

judicial proceedings.” Id. at 508 (simplified). In my view,

Gomez fails at the first step, because there was no error.

II

A

In evaluating whether our § 245(a)(1) precedent is

inconsistent with Borden, we must first determine what the

binding holding of Borden is.

In Borden, the defendant had previously been convicted

of “recklessly committing an assault” in violation of a

Tennessee statute, see Borden, 593 U.S. at 424–25

(plurality) (simplified), and he argued that this offense did

not qualify as a “violent felony” for purposes of the

sentencing enhancement provided under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The relevant

definition of “violent felony” in the ACCA, like that of

“crime of violence” in U.S.S.G. § 4B1.2(a), applies to any

offense that has as an element the “use, attempted use, or

26 USA V. GOMEZ

threatened use of physical force against the person of

another.” 18 U.S.C. § 924(e)(2)(B)(i); see also U.S.S.G.

§ 4B1.2(b) (same). In Borden, the plurality framed the

question presented there as whether this “elements clause”

of the definition “includes offenses,” like the Tennessee

statute, that “criminaliz[e] reckless conduct.” 593 U.S. at

429 (plurality). The plurality answered that question in the

negative, holding that the definition “covers purposeful and

knowing acts, but excludes reckless conduct.” Id. at 432.

The plurality reasoned that the phrase “use of physical force

against the person of another” denotes a targeted use of

force, and thereby “sets out a mens rea requirement—of

purposeful or knowing conduct.” Id. at 432, 434 (emphasis

added). Reckless conduct, which “is not opposed to or

directed at another,” therefore does not suffice under the

plurality’s view. Id. at 432.

Justice Thomas concurred in the judgment, agreeing that

the Tennessee offense was not a violent felony under the

ACCA. Borden, 593 U.S. at 445 (Thomas, J., concurring in

the judgment). However, his reasoning differed from the

plurality’s. He concluded that “a crime that can be

committed through mere recklessness does not have as an

element the ‘use of physical force’ because that phrase has a

well-understood meaning applying only to intentional acts

designed to cause harm.” Id. (emphasis added) (additional

quotation marks omitted).

In these circumstances, in which there is no majority

opinion for the Court, the binding holding of the decision is

the “position taken by those [Justices] who concurred in the

judgment[] on the narrowest grounds.” Marks v. United

States, 430 U.S. 188, 193 (1977). As the majority notes, the

narrowest ground of decision between the plurality and

Justice Thomas in Borden is their agreement that an offense

USA V. GOMEZ 27

that may be committed with a mens rea of recklessness does

not satisfy the “elements clause” of the definition of “violent

felony” in the ACCA. See Opin. at 15. Borden therefore

establishes that if a particular statutory offense may be

committed merely by showing that the person acted with

“conscious[] disregard[]” of a “substantial and unjustifiable

risk . . . in gross deviation from accepted conduct”—which

the plurality described as “the most common formulation” of

recklessness—then that offense does not satisfy the elements

clause. Borden, 593 U.S. at 427 (plurality); id. at 446

(Thomas, J, concurring in the judgment) (relying on the

reasoning in his prior dissent in Voisine v. United States, 579

U.S. 686 (2016)); see also Voisine, 579 U.S. at 709 (Thomas,

J., dissenting) (asserting that the “standard for

recklessness”—viz., disregard of “a substantial and

unjustifiable risk”—does not satisfy the mens rea required

by the elements clause).

Because (1) the plurality’s and Justice Thomas’s

rejection of a mens rea of recklessness is the least common

denominator that defines the holding of Borden in construing

the elements clause; (2) there is no overlap between the

Borden plurality opinion and Justice Thomas’s concurring

opinion as to the extent to which a mens rea of knowledge

would be sufficient; and (3) it is generally inappropriate to

combine portions of a plurality or concurring opinion “with

a dissent” to try to form a majority rationale that would be

binding under Marks, see Johnson v. City of Grants Pass, 72

F.4th 868, 913 (9th Cir. 2023) (Collins, J., dissenting), rev’d,

603 U.S. 520 (2024), Borden does not establish a standard

for the minimum mens rea, above recklessness, that would

be needed to satisfy the elements clause. Instead, it simply

holds that recklessness does not suffice.

28 USA V. GOMEZ

Indeed, even if the Borden plurality opinion were

construed as a binding majority opinion in all respects, I do

not think that that opinion is fairly read as purporting to

articulate exactly what the requisite minimum level of mens

rea is. On the contrary, in describing the holding that

resulted from the combination of the plurality opinion and

Justice Thomas’s concurrence in the judgment, the plurality

itself described that holding exactly as I have:

Four Justices think that the “use” phrase, as

modified by the “against” phrase, in ACCA’s

elements clause excludes reckless conduct.

One Justice thinks, consistent with his

previously stated view, that the “use” phrase

alone accomplishes that result. See post, at

446 (THOMAS, J., concurring in judgment).

And that makes five to answer the question

presented. Q: Does the elements clause

exclude reckless conduct? A: Yes, it does.

593 U.S. at 437 n.6 (plurality).

Moreover, the notion that the Borden plurality opinion

establishes a minimum level of mens rea seems impossible

to square with the plurality’s insistence, in a footnote, that it

was not addressing whether “mental states (often called

‘depraved heart’ or ‘extreme recklessness’) between

recklessness and knowledge” satisfied the elements clause.

Borden, 593 U.S. at 429 n.4 (emphasis added). And we have

previously explicitly recognized, in a prior en banc decision,

that “the Supreme Court’s decision in Borden stopped short

of deciding whether offenses that may be committed with

mental states between ordinary recklessness and knowledge

. . . qualify as crimes of violence.” United States v. Begay,

USA V. GOMEZ 29

33 F.4th 1081, 1086 (9th Cir. 2022) (en banc). Put simply,

if the Borden plurality expressly declined to address whether

any mens rea standard “between” recklessness and

knowledge satisfies the elements clause, then the plurality’s

opinion cannot be read to define what the requisite minimum

mens rea is. Borden merely holds that, whatever the exact

line is, “ordinary recklessness” does not meet it. Borden,

593 U.S. at 429 n.4 (plurality).

In my view, the majority therefore errs in extracting from

Borden a minimum standard as to the level of knowledge

that must be included in an offense’s elements in order for

that offense to satisfy the elements clause. According to the

majority, Borden restricts the qualifying offenses to those

that include a knowledge requirement that meets or exceeds

the particular definition of knowledge set forth in the Model

Penal Code and a few other sources. Thus, under the

majority’s view, an offense suffices only if its mens rea

element requires knowledge in the sense of a defendant’s

subjective “aware[ness] that [a] result is practically certain

to follow from his conduct.” See Opin. at 18 (quoting

Borden, 593 U.S. at 426 (plurality) (emphasis added)); see

also Model Penal Code § 2.02(b)(ii) (“A person acts

knowingly with respect to a material element of an offense

when: . . . if the element involves a result of his conduct, he

is aware that it is practically certain that his conduct will

cause such a result.”).

But in referencing this particular definition of

knowledge, the Borden plurality did not suggest that it was

the only one that would be acceptable under the elements

clause. Rather, the Borden plurality invoked this

formulation in order to underscore just how sharply the

concept of knowledge contrasts with that of recklessness. As

the plurality explained, recklessness is very different from

30 USA V. GOMEZ

knowledge because the “substantial and unjustifiable risk”

that, if disregarded, establishes recklessness “need not come

anywhere close to a likelihood,” much less the practical

certainty required under the Model Penal Code formulation

of knowledge. Borden, 593 U.S. at 427 (plurality) (emphasis

added); see also id. (noting that recklessness covers “low-

probability events” and “possible consequence[s]”).

Furthermore, the Supreme Court authority on which Borden

relied on this point did not itself consistently enunciate a

“practical certainty” standard. In discussing the mens rea of

knowledge, Borden cited United States v. United States

Gypsum Co., 438 U.S. 422 (1978), which in turn

interchangeably referenced both knowledge that a result was

“practically certain” to occur and “knowledge that the

proscribed effects would most likely follow.” Id. at 444–45

(emphasis added) (citations omitted); see also id. at 444

(referencing “action undertaken with knowledge of its

probable consequences” (emphasis added)). Nothing in

Borden required the Court to settle upon an exact line as to

what mens rea above recklessness would suffice for

purposes of the elements clause, and the Court did not do so.

Accordingly, the binding holding of Borden is that an

offense with a mens rea of recklessness, as described in

Borden, does not satisfy the elements clause.

B

The question, then, is whether California Penal Code

§ 245(a)(1) permits a conviction based on the sort of

recklessness that was rejected by Borden. The answer is no.

As definitively construed by the California Supreme

Court, the “assault” offense set forth in § 245(a)(1) requires,

inter alia, “[1] an intentional act and [2] actual knowledge

of those facts sufficient to establish that the act by its nature

USA V. GOMEZ 31

will probably and directly result in the application of

physical force against another.” People v. Williams, 29 P.3d

197, 204 (Cal. 2001) (emphasis added). In other words,

§ 245(a)(1) requires subjective knowledge of those facts

that, in turn, objectively establish that a battery is likely to

occur as the direct result of the defendant’s intentional act,

but the statute does not require subjective knowledge that the

battery itself will occur.

This distinctive mens rea is a significantly more

demanding mental state than the sort of recklessness rejected

in Borden. The latter standard, as the plurality explained,

did not require that the risk of a battery “come anywhere

close to a likelihood,” Borden, 593 U.S. at 427 (plurality),

whereas the Williams standard affirmatively requires that a

battery will be the “probabl[e] and direct[] result.” Williams,

29 P.3d at 204; see also id. at 202 (explaining that “the

mental state for assault incorporates the language of

probability, i.e., direct, natural and probable

consequences”). Moreover, in contrast to a defendant acting

with ordinary recklessness, who merely “pay[s] insufficient

attention to the potential application of force,” a defendant

who violates § 245(a)(1) must be shown to have

intentionally committed an act with actual subjective

knowledge of circumstances that objectively establish that a

battery will directly occur as a result. Borden, 593 U.S. at

432 (plurality). And because § 245(a)(1) thus requires an

intentional act and subjective knowledge of the facts that

make the battery likely to directly result from that act, a

§ 245(a)(1) violation involves a “targeted” use of force

“against” another person in a way that ordinary recklessness

does not. Id. Although Williams’s mens rea standard falls

short of the Model Penal Code’s knowledge standard

(because it does not require subjective knowledge that the

32 USA V. GOMEZ

battery itself is practically certain to occur), it is more

demanding than the sort of mere recklessness rejected in

Borden.

The majority does not dispute that, as compared to

ordinary recklessness, the nuanced mens rea element

described in Williams requires a much greater likelihood that

a battery will result from the act that the defendant

intentionally commits with knowledge of the associated

objectively-risk-creating circumstances. But the majority

says that this difference does not matter because there is

another difference that cuts the other way: in contrast to the

“most common formulation” of recklessness, which requires

a showing that the defendant “consciously disregard[ed] a

substantial and unjustifiable risk,” Borden, 593 U.S. at 427

(plurality) (emphasis added), the Williams standard “does

not require . . . a subjective awareness of the risk that an

injury might occur,” Williams, 29 P.3d at 204 (emphasis

added). Given this latter difference, the majority argues, the

much higher probability of the risk required by Williams is

“not relevant,” and the Williams standard is “less culpable

even than Borden’s definition of recklessness.” See Opin. at

18–19 & n.6 (emphasis added). The majority’s reasoning is

flawed.

There are good reasons to doubt the majority’s

conclusion that an aggravated assault under § 245(a)(1) is

“less culpable” than the reckless assault offense at issue in

Borden, but that issue is ultimately beside the point.1 The

1

Culpability is the focus of other provisions, such as the provision of the

Immigration and Nationality Act declaring “inadmissible” certain

persons who have committed a “crime involving moral turpitude,”

8 U.S.C. § 1182(a)(2)(A)(i)(I). See Safaryan v. Barr, 975 F.3d 976,

985–88 (9th Cir. 2020) (holding that § 245(a)(1) is categorically a crime

USA V. GOMEZ 33

relevant question here is not relative culpability in the

abstract but whether the elements of the offense establish the

requisite targeting of force against another person. See

Borden, 593 U.S. at 429 (plurality). There is no such

directing of force at another when, as with ordinary

recklessness, the risk created by the defendant “need not

come anywhere close to a likelihood.” Id. at 427. But when

the defendant’s intentional actions make it likely that force

will be applied against another person as the direct

consequence of those actions, and the defendant knows the

facts that create that direct likelihood, he has “used force

‘against’ another person in the targeted way that [the

elements] clause requires.” Id. at 432.2 The fact that the

involving moral turpitude, because its combination of aggravating

factors and mens rea makes the offense sufficiently turpitudinous under

the applicable “sliding scale,” which considers the combined culpability

of both “a sufficiently reprehensible actus reus and a sufficiently

culpable mens rea”). The much greater likelihood of bodily harm

inherent in an aggravated assault under § 245(a)(1) as opposed to the

reckless assault offense at issue in Borden significantly augments the

former offense’s culpability, and that substantially increased culpability

outweighs the relatively modest countervailing distinction in culpability

“between (1) someone who is subjectively aware of the facts that create

[an] obvious risk versus (2) someone who is subjectively aware of [the]

risk.” Id. at 987. Nonetheless, I do not discern anything in the majority’s

decision that calls into question Safaryan’s holding that § 245(a)(1) is

categorically a crime involving moral turpitude. See id. at 988 (noting

that, under the sliding scale that governs the distinct analysis applicable

to a “crime involving moral turpitude,” even “recklessness is an adequate

mens rea for assault if combined with additional aggravating factors”).

2

The panel opinion was therefore wrong in contending that § 245(a)(1)

would cover the hypothetical described in Borden in which “a driver . . .

‘decides to run a red light, and hits a pedestrian whom he did not see.’”

United States v. Gomez, 115 F.4th 987, 995 (9th Cir. 2024) (quoting

Borden, 593 U.S. at 432 (plurality)). Because Williams makes clear that

a defendant cannot be convicted based on “facts he did not know but

34 USA V. GOMEZ

defendant may not subjectively perceive the obvious direct

consequence of what he knows he is doing does not negate

the “directedness or targeting,” id. at 430, that inheres in the

close connection between his known actions and their direct

consequence.

Viewed in this fuller context, § 245(a)(1)’s mens rea

requirement is somewhere “between ordinary recklessness

and knowledge” as defined in the Model Penal Code

provisions quoted in Borden. Begay, 33 F.4th at 1086.

Because § 245(a)(1) does not allow conviction based on the

sort of recklessness rejected in Borden, our existing caselaw

holding that § 245(a)(1) satisfies the elements clause is not

inconsistent with the binding holding of Borden. Absent

further guidance from the Supreme Court, I therefore would

adhere to our precedent on stare decisis grounds and hold

that § 245(a)(1) is a crime of violence for purposes of the

elements clause.

should have known” and must be shown to have known “the facts that

would lead a reasonable person to realize that a battery would directly,

naturally and probably result from his conduct,” Williams, 29 P.3d at

788, § 245(a)(1) does not apply to a defendant who actually thinks the

crosswalk is clear when he runs the red light. Cf. People v. Yorba, 2008

WL 727693, at *6 (Cal. Ct. App. 2008) (upholding a § 245(a)(1)

conviction because a jury could reasonably find that the defendant knew

the facts making a collision likely when he “was speeding through a red

light” and he saw “another car whose driver was proceeding legally with

the left-turn arrow and who had looked both ways before entering the

intersection,” even though “defendant was honking his horn while

approaching the intersection, was being chased by police cars with their

sirens on, and had illegally driven through other traffic-light-controlled

intersections while evading the police at unsafe speeds well in excess of

the posted speed limits without being involved in other collisions”).

USA V. GOMEZ 35

C

As I have noted, the majority’s contrary view is based on

the premise that Borden requires that the knowledge element

must meet or exceed the knowledge required under the

Model Penal Code formulation. I agree with the majority

that its conclusion properly follows from that assumption,

but for the reasons I have explained, I do not think that

Borden requires us to adopt that premise. Beyond that, I

have one final concern about the majority’s approach.

Specifically, despite the majority’s insistence to the

contrary, see Opin. at 16 n.3, the reasoning in its opinion

today cannot be reconciled with our en banc decision in

Begay.

I agree that Begay’s holding—viz., that “crimes

committed with ‘extreme recklessness’ or a ‘depraved heart’

satisfy the elements clause”—is logically “consistent” with

the rule that “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,

then the crime is not a crime of violence” under Borden. See

Opin. at 15–16 & n.3 (simplified). Stated differently, I agree

with the majority that the statute at issue in Begay requires

more than the recklessness rejected in Borden, and in that

sense Begay is consistent with Borden. See supra at 30

(explaining that the binding holding of Borden is simply that

“an offense with a mens rea of recklessness, as described in

Borden, does not satisfy the elements clause”).

The problem with the majority’s approach is that the

“extreme recklessness” and “depraved heart” standards

discussed in Begay do not satisfy the Model Penal Code’s

knowledge standard, which the majority later deploys as a

sufficient basis for its conclusion that § 245(a)(1) fails the

36 USA V. GOMEZ

elements clause under Borden. See Opin. at 18–19. Indeed,

we expressly acknowledged in Begay that the “mental

states” that were “at issue” there fell “between recklessness

and knowledge” as described in Borden. Begay, 33 F.4th at

1093. If, as the majority insists, the Model Penal Code

standard of knowledge must be met in order for a particular

offense to satisfy the elements clause, then Begay was

wrongly decided and cannot stand. The majority seems

unwilling to accept that conclusion, but it does not explain

how the statute at issue in Begay satisfies the majority’s test

while § 245(a)(1) fails that test.

* * *

Borden held that ordinary recklessness does not suffice

under the elements clause, and that holding is consistent with

our existing caselaw addressing § 245(a)(1). Because

Borden does not disturb that precedent, I would adhere to it

unless and until the Supreme Court further refines its

understanding of the elements clause. I would therefore hold

that the district court correctly concluded that § 245(a)(1) is

a crime of violence. Accordingly, the district court did not

err, much less plainly err, by applying the career offender

enhancement. On that basis, I respectfully concur in part and

in the judgment.