Petition for Writ of Certiorari — Jesus Ramiro Gomez, Petitioner v. United States
Supreme Court briefApr 10, 2026
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No. _________
IN THE SUPREME COURT OF THE UNITED STATES
444444444444444444444444U
JESUS RAMIRO GOMEZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
4444444444444444444444444U
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
4444444444444444444444444U
TODD W. BURNS
Counsel of Record
Burns & Cohan
501 West Broadway, Suite 1510
San Diego, California 92101
619-236-0244
todd@burnsandcohan.com
Counsel for Petitioner
QUESTION PRESENTED
Whether a purely legal Sentencing Guidelines error is sufficient, by itself, to establish the
plainness prong of plain-error review under United States v. Olano, 507 U.S. 725 (1993).
i
PARTIES TO THE PROCEEDING
The parties to the proceeding whose judgment is sought to be reviewed are Petitioner Jesus
Ramiro Gomez and Respondent United States of America. There are no corporate parties or other
interested entities.
ii
STATEMENT OF RELATED PROCEEDINGS
The related proceedings are:
1. United States v. Jesus Ramiro Gomez, No. 8:20-cr-0171-JVS-FWS-5, United States
District Court for the Central District of California. Judgment entered on March 13, 2023.
2. United States v. Jesus Ramiro Gomez, No. 23-435, United States Court of Appeals for the
Ninth Circuit. Judgment entered on January 13, 2026, after en banc rehearing.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I.
District Court Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II.
Ninth Circuit Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A.
Gomez’s Argument On Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B.
Initial Ninth Circuit Panel Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C.
Ninth Circuit En Banc Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
I.
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
II.
The Ninth Circuit’s En Banc Opinion Directly Conflicts With The Tenth
Circuit’s Opinion In Sjodin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
III.
The Ninth Circuit’s En Banc Opinion Conflicts With This Court’s Approach
To Plain-Error Review Set Out In Molina-Martinez And Rosales-Mireles . . . . . 13
iv
IV.
The Ninth Circuit’s En Banc Opinion Conflicts With The Second Circuit’s
Relaxed Application Of Olano’s Second Prong . . . . . . . . . . . . . . . . . . . . . . . . . . 17
V.
The Ninth Circuit’s En Banc Opinion Conflicts With Fifth Circuit Case Law
Holding That A Sentencing Error Is Plain If It Is Evident From A
“Straightforward Application” Of Supreme Court Case Law. . . . . . . . . . . . . . . . 21
VI.
This Case Is An Ideal Vehicle To Resolve An Important And Recurring
Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
APPENDIX
Opinion in United States v. Gomez, 115 F.4th 987 (9th Cir. 2024)
Opinion in United States v. Gomez, 165 F.4th 1199 (9th Cir. 2026) (en banc)
PROOF OF SERVICE
v
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Borden v. United States,
593 U.S. 420 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Glover v. United States,
531 U.S. 198 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Henderson v. United States,
568 U.S. 266 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16
Hicks v. United States,
137 S. Ct. 2000 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19
Marks v. United States,
430 U.S. 188 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Mathis v. United States,
579 U.S. 500 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
Molina-Martinez v. United States,
578 U.S. 189 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Peugh v. United States,
569 U.S. 530 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Rita v. United States,
551 U.S. 338 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Rosales-Mireles v. United States,
585 U.S. 129 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
United States v. Booker,
543 U.S. 220 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. Frady,
456 U.S. 152 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
vi
United States v. Garcia-Lopez,
903 F.3d 887 (9th Cir. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
United States v. Gomez,
115 F.4th 987 (9th Cir. 2024). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
United States v. Gomez,
133 F.4th 1083 (9th Cir. 2025). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
United States v. Gomez,
165 F.4th 1199 (9th Cir. 2026) (en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
United States v. Irons,
31 F.4th 702 (9th Cir. 2022). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
United States v. Matta,
777 F.3d 116 (2d Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Olano,
507 U.S. 725 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
United States v. Orelien,
119 F.4th 217 (2d Cir. 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
United States v. Rodriguez,
25 F.4th 385 (5th Cir. 2022). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
United States v. Sabillon-Umana,
772 F.3d 1328 (10th Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Saro,
24 F.3d 283 (D.C. Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. Sjodin,
139 F.4th 1188 (10th Cir. 2025). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 11, 12, 13, 24
United States v. Sofsky,
287 F.3d 122 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21
United States v. Urbina-Fuentes,
900 F.3d 687 (5th Cir. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 23
vii
United States v. Walker,
953 F.3d 577 (9th Cir. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
United States v. Wernick,
691 F.3d 108 (2d Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 19
United States v. Williams,
399 F.3d 450 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17, 18
FEDERAL STATUTES
28 U.S.C. §1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
FEDERAL RULES
Fed. R. Crim. P. 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 25
S. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 24
S. Ct. R. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
FEDERAL SENTENCING GUIDELINES
U.S.S.G. §4B1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
U.S.S.G. §4B1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 9, 12
STATE CASES
People v. Williams,
26 Cal. 4th 779 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
STATE STATUTES
California Penal Code §240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
California Penal Code §245(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
OTHER AUTHORITIES
Model Penal Code §2.02(2)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
U.S. Sentencing Commission, Sourcebook of Federal Sentencing Statistics (2024) . . . . . . . 24, 25
viii
INTRODUCTION
In an en banc decision, the Ninth Circuit applied plain-error review and acknowledged that
the district court committed a purely legal error that doubled Petitioner Jesus Gomez’s Sentencing
Guidelines range – from 130-162 months to 262-327 months – based on the mistaken conclusion that
California assault is a federal “crime of violence.” There is no dispute that this error affected
Gomez’s substantial rights and undermined the fairness, integrity, and public reputation of the
judicial proceedings, thus satisfying the third and fourth prongs of the plain-error test established in
United States v. Olano, 507 U.S. 725 (1993).
Nevertheless, the Ninth Circuit declined to correct the error. It held the error was not “plain”
under Olano’s second prong, not because the law was unsettled, but because the court characterized
the issue as a “close and difficult question.” That reasoning conflicts with the approach to assessing
whether Guidelines error is plain taken by the Second and Fifth Circuits, and directly conflicts with
a Tenth Circuit opinion addressing the same issue. It also conflicts with this Court’s decisions in
Molina-Martinez v. United States, 578 U.S. 189 (2016), and Rosales-Mireles v. United States, 585
U.S. 129 (2018), which instruct that the plain-error standard should be applied less stringently in the
Guidelines context.
The Ninth Circuit’s rule is also troubling because it permits courts to deny relief for conceded
legal errors that lengthen prison sentences – sometimes dramatically – simply by labeling an issue
“difficult.” That approach inverts plain-error review, elevating judicial hesitation over legal
correctness and allowing prejudicial sentencing errors that undermine judicial integrity to go
uncorrected. Moreover, the Ninth Circuit justified its conclusion by pointing to its own prior
misreading of controlling law, effectively insulating error from correction because the court itself
had erred before.
This case provides an ideal vehicle to resolve the conflicts identified above and to complete
the trilogy of Molina-Martinez and Rosales-Mireles by addressing Olano’s “plainness” prong in the
context of purely legal Guidelines errors. The question presented is also exceptionally important
because sentencing errors arise in the vast majority of federal criminal appeals and the rule adopted
below will systematically deny relief even where defendants can show a purely legal Guidelines error
that prejudiced them and undermined judicial integrity. Review is therefore warranted to ensure such
sentences are not allowed to stand and to promote uniformity and fairness in federal sentencing. See
S. Ct. R. 10(a) & (c).
OPINIONS BELOW
On September 4, 2024, the Ninth Circuit filed a published opinion remanding for
resentencing because the district court erred in calculating Gomez’s Sentencing Guidelines range.
See United States v. Gomez, 115 F.4th 987 (9th Cir. 2024) (attached in appendix).
On April 14, 2025, the court vacated its prior opinion and ordered rehearing en banc. See
United States v. Gomez, 133 F.4th 1083 (9th Cir. 2025).
On January 13, 2026, an en banc panel filed a published opinion holding that the district
court erred but declining to grant relief under plain-error review because it concluded the error was
not “plain.” See United States v. Gomez, 165 F.4th 1199 (9th Cir. 2026) (en banc) (attached in
appendix).
JURISDICTION
The judgment of the court of appeals was entered on January 13, 2026, following en
banc review. The petition is timely under Supreme Court Rule 13 and this Court has jurisdiction
under 28 U.S.C. §1254(1).
2
STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED
Federal Rule of Criminal Procedure 52(b) states, “[a] plain error that affects substantial rights
may be considered even though it was not brought to the court’s attention.”
STATEMENT OF THE CASE
I.
District Court Proceedings
In May 2022, Gomez pleaded guilty to distributing 109 grams of methamphetamine. See
Gomez, 165 F.4th at 1204; see also 2-ER-46, 74.1 During sentencing, the district court found that
the Sentencing Guidelines’ career-offender enhancement applied. See U.S.S.G. §4B1.1(a). That
finding depended on the court’s conclusion that Gomez’s February 2013 conviction for assault under
California Penal Code §245(a)(1) qualified as a federal “crime of violence” under the elements
clause in U.S.S.G. §4B1.2(a)(1). See Gomez, 165 F.4th at 1204. The elements clause defines a
crime of violence 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 . . . .”
The career-offender enhancement doubled Gomez’s Guidelines range, raising it from 130162 months to 262-327 months. See id. The district court used that higher range as its starting point
in imposing a 188-month sentence. See id.; see also 2-ER-112-20.
1
ER denotes the excerpts of record filed at docket #10 in United States v. Gomez, Ninth
Circuit No. 23-435.
3
II.
Ninth Circuit Proceedings
A.
Gomez’s Argument On Appeal
For the first time on appeal, Gomez claimed that the career-offender enhancement didn’t
apply because assault under California Penal Code §245(a)(1) is not a federal crime of violence
under the elements clause. Specifically, he argued that the threshold for the intent to apply force to
another is higher under the elements clause than is required to convict for California assault, thus
the latter doesn’t qualify as a crime of violence.
To assess that claim, a court must apply the categorical approach. “Under that by-now
familiar method . . . the facts of a given case are irrelevant. The focus is instead on whether the
elements of the statute of conviction meet the federal standard. Here, that means asking whether”
California assault “necessarily involves the defendant’s ‘use, attempted use, or threatened use of
physical force against the person of another.’” Borden v. United States, 593 U.S. 420, 424 (2021)
(interpreting elements clause mens rea in 18 U.S.C. §924(e)(2)(B)(i)).2 “If any – even the least
culpable – of the acts criminalized” by California Penal Code §245(a)(1) “do not entail [the] kind
of force” necessary to qualify under the Guidelines’ elements clause, then §245(a)(1) “does not
categorically match the federal standard, and so cannot serve as” a career offender predicate. Id.
Beginning with the elements clause side of the categorical analysis, the key case is Borden,
in which a four-justice plurality opinion concluded that the phrase “against the person of another”
indicates that a person must “direct his action at, or target, another individual.” 593 U.S. at 429.
2
The elements clause appears in several criminal statutes and the Guidelines in language that
is identical, or nearly so. Consequently, case law across those contexts is mostly interchangeable.
See Borden, 593 U.S. 426-27, 429; see also United States v. Walker, 953 F.3d 577, 579 (9th Cir.
2020).
4
Based on that reading, the plurality opinion concluded that to qualify as a crime of violence under
the elements clause an offense must have a mens rea greater than recklessness, as defined in the
Model Penal Code. That means an offense must have a mens rea greater than a “conscious[]
disregard[ of] a substantial and unjustifiable risk” that force will be applied to another. Id. at 427
(quoting Model Penal Code §2.02(2)(c)).
In a concurring opinion, Justice Thomas said he would go further and hold that the elements
clause requires a mens rea commensurate with purpose, the highest of the four mens rea defined in
the Model Penal Code. See id. at 446 (Thomas, J., concurring). Accordingly, five justices – the four
who signed onto the plurality opinion and Justice Thomas – agreed that to qualify as a crime of
violence under the elements clause an offense must have a mens rea greater than recklessness with
respect to whether force will be applied to another.3 See Marks v. United States, 430 U.S. 188, 193
(1977). The government agrees that the plurality opinion establishes the controlling holding. See
Gomez, 165 F.4th at 1208.
Turning to California assault, the key case is People v. Williams, 26 Cal. 4th 779 (2001), in
which the California Supreme Court interpreted a 150-year-old statute that defines assault as “an
unlawful attempt, coupled with a present ability, to commit a violent injury on the person of
another.” Cal. Penal Code §240. That requires showing the defendant had “actual knowledge of the
facts sufficient to establish that the defendant’s act by its nature will probably and directly result in
injury to another.” Williams, 26 Cal. 4th at 784. “He, however, need not be subjectively aware of
3
Arguably the Borden plurality went further and held the minimum mens rea required under
the elements clause is knowledge as defined in the Model Penal Code, because it said “[t]he ‘against’
phrase indeed sets out a mens rea requirement – of purposeful or knowing conduct.” 593 U.S. at
434. That conclusion is also encompassed in Justice Thomas’s concurring opinion. But it was
unnecessary to go that far to resolve this case and the Ninth Circuit panels did not do so.
5
the risk that a battery might occur.” Id. at 787. Indeed, “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 defendant, would find that the act would directly, naturally and probably result in a
battery.” Id. at 788 n.3. Thus, to convict for assault under §245(a)(1) the prosecution must show
the defendant had knowledge of the surrounding facts but need not show the defendant had any
intent to use force against another, or even that he knew there was a risk force would be applied.
As Gomez argued on appeal, it is obvious that assault under §245(a)(1) is not categorically
a crime of violence under the elements clause because: (1) the California Supreme Court said in
Williams that §245(a)(1) doesn’t require showing the defendant was aware of any risk that force
would be applied to another; but (2) this Court in Borden said an offense does not qualify as a crime
of violence even if the defendant consciously disregarded a substantial risk that force would be
applied.
B.
Initial Ninth Circuit Panel Opinion
In its initial panel opinion, the Ninth Circuit agreed with Gomez, found the district court
erred by applying the career-offender enhancement, and ordered the case remanded for resentencing.
See Gomez, 115 F.4th at 992-996. There are two aspects of that opinion that bear highlighting.
First, the panel had to deal with the fact that in four pre-Borden published cases the Ninth
Circuit had held that California assault is a crime of violence under the elements clause. The panel
concluded that those cases were “clearly irreconcilable” with Borden and thus had been effectively
overruled. Gomez, 115 F.4th at 996-98. As will be emphasized again below, the Ninth Circuit has
held that a “clearly irreconcilable” holding also establishes that the error involved is plain under the
6
plain-error test set out in Olano. See United States v. Garcia-Lopez, 903 F.3d 887, 894 (9th Cir.
2018). That conclusion follows because the two standards are effectively identical.
Second, with respect to the standard of review, Gomez argued that the panel could rely on
longstanding Ninth Circuit case law that allowed the court discretion to apply de novo review when
the question presented is purely legal and the opposing party is not prejudiced by the failure to object
in the district court. See Appellant’s Op. Br. at 8-9, 37, United States v. Gomez, Ninth Circuit No.
23-435 (Docket #12). But Gomez also argued that even if the court applied plain-error review, relief
should be granted because he satisfied all four prongs of Olano’s test. See id. The panel chose the
former course and applied de novo review. See Gomez, 115 F.4th at 990-92.
C.
Ninth Circuit En Banc Proceedings
In a petition for rehearing en banc, the government asked the Ninth Circuit to overrule its
longstanding pure-question-of-law exception to Olano’s four-prong test, claiming that exception is
inconsistent with this Court’s case law. See Pet. for Rh’g at 6, 10, United States v. Gomez, Ninth
Circuit No. 23-435 (Docket #45). The government didn’t dispute that there was error, nor did it
claim Gomez couldn’t establish the third and fourth prongs of Olano’s test, a claim it couldn’t
credibly make in light of this Court’s opinions in Molina-Martinez and Rosales-Mireles. Instead,
the government claimed Gomez couldn’t establish Olano’s second, plainness prong. Thus, the
government said, this case was a good vehicle for overruling the Ninth Circuit’s pure-question-oflaw exception because doing so would be outcome-determinative on Gomez’s claim for relief.
Gomez responded that this case was not a good vehicle for addressing the Ninth Circuit’s
pure-question-of-law exception because Gomez can meet Olano’s second prong, thus the outcome
7
of his case would be the same regardless of whether the court overruled that exception. He made
three arguments in that regard.
First, he noted that the original panel held that the Ninth Circuit’s pre-Borden case law was
“clearly irreconcilable” with Borden, and it necessarily followed that the error was “plain” under
Olano, which is synonymous with “clear.” See Garcia-Lopez, 903 F.3d at 894; Olano, 507 U.S. at
734; Gomez Resp. in Opp. to Pet. for R’hg (Gomez RIO to PFR) at 9-10, United States v. Gomez,
Ninth Circuit No. 23-435 (Docket #49).
Second, Gomez pointed out that in Molina-Martinez and Rosales-Mireles, this Court had
endorsed a relaxed application of Olano’s plain-error test in the Guidelines error context, in light of
the relative ease of correcting such errors and the important interests involved. And in those cases
the Court cited approvingly to Second Circuit case law that relies on the same reasoning to apply the
second prong of Olano’s test less stringently in the Guidelines error context. Applying that approach
here leads to the conclusion that the error is plain. See Gomez RIO to PFR at 1-2, 13-17.
Third, in United States v. Sjodin, 139 F.4th 1188, 1202-05 (10th Cir. 2025), the Tenth Circuit
addressed the same issue presented here, applied the same reasoning as the panel in this case,
concluded there was error that was plain, and granted relief. Thus, for the Ninth Circuit to conclude
the error here was not plain would create a direct circuit split. See Gomez Rule 28(j) Letter, United
States v. Gomez, Ninth Circuit No. 23-435 (Docket #63).
The Ninth Circuit granted en banc review and issued an opinion overruling its pure-questionof-law exception to Olano’s plain-error test. See Gomez, 115 F.4th at 1204-07. The en banc panel
then applied Olano’s test and, replicating the original panel’s reasoning, concluded there was error
8
because California assault is not a crime of violence under the elements clause. See id. at 1207-10.
It therefore overruled its pre-Borden case law that concluded otherwise.4 See id. at 1210.
The en banc panel next concluded the error was not plain under Olano’s second prong
because, even though it was purely legal error, the court viewed it as presenting “a close and difficult
question.” Id. at 1211. There are several points that bear making here with respect to the court’s
“close and difficult question” yardstick and analysis.
First, to support its conclusion that the question presented was “close and difficult,” the en
banc panel pointed to the fact that in four pre-Borden published cases, and in two post-Borden
unpublished cases, the Ninth Circuit had held that California assault is a crime of violence. See
Gomez, 165 F.4th at 1211-12. In this regard, the panel effectively reasoned that: (1) in its preBorden published cases the court had relied in part on language from the California Supreme Court
in Williams, 26 Cal.4th at 788, stating that “mere recklessness or criminal negligence is . . . not
enough” to convict for California assault; and (2) in its post-Borden unpublished opinions, two
panels (comprised of the same three judges) concluded that the quoted language from Williams
evidences a categorical match with Borden’s holding that the elements clause requires that an offense
have a mens rea of more-than-recklessness. See id.
But the quoted language from Williams comes with a footnote attached in which the
California Supreme Court explained that it was using “the term ‘recklessness’ in its historical sense
as a synonym for criminal negligence, rather than its more modern conception as a subjective
4
Like the original panel, the en banc panel relied on the same reasoning that drove its
conclusion on the elements clause to conclude that California assault is also not a crime of violence
under the enumerated offenses clause in U.S.S.G. §4B1.2(a)(2). See Gomez, 165 F.4th at 1210 n.7;
Gomez, 115 F.4th at 998-99.
9
appreciation of the risk of harm to another.” 26 Cal.4th at 788 n.4. Consistent with that, the opinion
in Williams repeatedly makes clear that California assault does not require any mens rea with respect
to application of force to another. Thus, in the words of the initial panel opinion in Gomez’s case,
the Ninth Circuit’s unpublished post-Borden opinions and, to a degree, its pre-Borden published
opinions, “conducted a labels-over-substance inquiry,” consequently they “are not persuasive.”
Gomez, 115 F.4th at 998 n.7; see id. at 996.
Nonetheless, the en banc opinion reasoned that because prior Ninth Circuit panels “did not
identify” the footnote in Williams stating that the California Supreme Court was using the term
“recklessness [as] a synonym for criminal negligence,” the categorical analysis in this case presents
a “close and difficult question.” Gomez, 165 F.4th at 1211. But invoking the prior panels’ mistake
with respect to reading Williams doesn’t make the categorical mismatch here close. Indeed, the
mismatch is so evident that the original panel held that the Ninth Circuit’s pre-Borden case law is
“clearly irreconcilable” with Borden, and thus Borden effectively overruled that prior case law. As
mentioned, that finding equates to the error having been plain under Olano’s second prong. See
Garcia-Lopez, 903 F.3d at 894. While the en banc panel did not have to engage in that “clearly
irreconcilable” analysis, because it could trump the prior Ninth Circuit three-judge decisions
regardless, its 10-1 vote finding error is telling. Also telling is that the author of the en banc opinion
joined the original panel opinion holding that the prior Ninth Circuit case law is “clearly
irreconcilable” with Borden.
A final major weakness in the en banc panel’s analysis is that, for its “close and difficult
question” yardstick, it relied on United States v. Irons, 31 F.4th 702, 713 (9th Cir. 2022), which dealt
with jury-instruction, not Guidelines, error. See id. at 710-13. As mentioned, and discussed further
10
below, this Court has made clear that the plain-error test should be applied less stringently in the
Guidelines error context.
Furthermore, in Irons the Ninth Circuit found that even though the district court had relied
on an unpublished opinion that explicitly approved the jury instruction it gave, it had plainly erred.
31 F.4th at 713. In that regard, the court in Irons said:
To be sure, it seems quite unfair to conclude that the district court “plainly erred”
when it followed an unpublished decision of this court, but the [Supreme] Court has
made “clear that plain-error review is not a grading system for trial judges.”
[Henderson v. United States, 568 U.S. 266, 278 (2013).] “It has broader purposes,
including in part allowing courts of appeals better to identify those instances in which
the application of a new rule of law to cases on appeal will meet the demands of
fairness and judicial integrity.” Id.
The “demands of fairness and judicial integrity” are shorthand for the third and fourth prongs of the
Olano test, which were undeniably met in this case and, as in Irons, support granting relief regardless
of there having been previous erroneous unpublished opinions.
REASONS FOR GRANTING THE WRIT
I.
Introduction
The Ninth Circuit’s en banc opinion, and its “close and difficult question” test, conflicts with
case law from this Court and other circuit courts in several ways.
First, it directly conflicts with the Tenth Circuit’s opinion in United States v. Sjodin, 139
F.4th 1188, 1202-05 (10th Cir. 2025), which held that the same error involved in this case is plain
in light of Borden and the California Supreme Court’s opinion in Williams.
Second, it conflicts with this Court’s opinions in Molina-Martinez and Rosales-Mireles,
which indicate that Olano’s plain-error test should be applied less stringently in the Guidelines error
context because of the limited costs of correcting such error and the substantial interests involved.
11
Although those cases addressed Olano’s third and fourth prongs, in cases in which a defendant
satisfies those prongs – such as this one – it makes no sense to say he should be denied relief because
the reviewing court found it “difficult” to resolve a purely legal issue.
Third, it conflicts with the Second Circuit’s long line of cases holding that Olano’s plainerror test should be applied less stringently in the sentencing context, an approach the Second Circuit
has repeatedly applied to find Guidelines errors to be plain even though the Ninth Circuit would
presumably conclude otherwise because the errors presented “close and difficult questions.”
Fourth, it conflicts with Fifth Circuit case law holding a sentencing error is plain if it is
dictated by a “straightforward application” of Supreme Court case law, even if there is contrary prior
circuit case law. Here, the error is evident from a straightforward application of Borden,
notwithstanding that the en banc panel acknowledged that prior Ninth Circuit panels misunderstood
clear language in the California Supreme Court’s Williams opinion.
Each of these points is addressed below, followed by an explanation of why this case is an
ideal vehicle for resolving the question presented.
II.
The Ninth Circuit’s En Banc Opinion Directly Conflicts With The Tenth Circuit’s
Opinion In Sjodin
The Ninth Circuit’s en banc opinion with respect to Olano’s plainness prong directly
conflicts with Sjodin, 139 F.4th at 1202-05, in which the Tenth Circuit held that California Penal
Code §245(a) doesn’t qualify as a crime of violence under U.S.S.G. §4B1.2(a) and granted relief
under Olano’s test. It is useful to quote that court’s conclusion on the merits because it re-enforces
how clear the error is:
The mens rea criminalized by the California assault statute simply spans too wide on
the “culpability spectrum” to constitute a crime of violence. . . . The least culpable
12
conduct covered by the California assault statute, as interpreted in [People v.
Williams, 29 P.3d 197, 204 (2001)], does not require an intent to apply force to
another person, knowledge that that action will apply force on another, or subjective
awareness of the risk of such force. Id. Instead, 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 defendant, would find that the act would directly,
naturally, and probably result in a battery.” [Id. at 203 n.3.] Borden, on the other
hand, requires an “awareness that a result is practically certain to follow from one’s
conduct.” 593 U.S. at 426 . . . . The California assault statute’s mens rea sweeps too
broadly: mere volition does not prove the intent to apply force to another person.
Id. at 1203.
With respect to the second-prong of Olano’s test, the court held that “because the California
assault statute does not prohibit only the use of force with a mens rea greater than recklessness,” and
“in light of Borden” having held that an offense must have such a mens rea, “the district court’s error
is plain.” Id. at 1204. This is consistent with the Fifth Circuit’s holding – discussed in Section V
below – that a sentencing error is plain if it involves a “straightforward application” of Supreme
Court precedent. Furthermore, the court in Sjodin concluded the error at issue here is plain even
though it was aware of the Ninth Circuit’s initial opinion in Gomez, that court’s en banc grant, and
that court’s prior published and unpublished case law on the issue. See id. at 1204 n.9. That is, the
Tenth Circuit didn’t find that the Ninth Circuit’s grappling with the issue made the error any less
plain. Finally, that the error is plain is supported by the fact that the government didn’t petition for
certiorari in Sjodin.
III.
The Ninth Circuit’s En Banc Opinion Conflicts With This Court’s Approach To PlainError Review Set Out In Molina-Martinez And Rosales-Mireles
In Molina-Martinez, this Court addressed Olano’s third prong in the Guidelines error context.
There, the district court’s error raised the defendant’s Guidelines range from 70-87 to 77-96 months.
See 578 U.S. at 195-97. The Fifth Circuit affirmed the 77-month sentence imposed because (a) it
13
was within the otherwise correct range, and (b) the defendant hadn’t adduced evidence other than
the error to support Olano’s third-prong requirement that there be a reasonable probability that, butfor the error, the district court would have imposed a lower sentence. See id. at 197. This Court
reversed, explaining that the Guidelines are central to the sentencing process, thus “[i]t follows . .
. that in most cases” the district court’s calculation of an erroneous range “will affect the sentence.”
Id. at 204. Accordingly, “the error itself can, and most often will, be sufficient” to satisfy Olano’s
third prong.5 Id. at 198.
In response to the claim that this holding shifted the burden of establishing Olano’s thirdprong to the government, and would sap judicial resources, see id. at 202-04, this Court said
application of the plain-error rule in the Guidelines context should be less-stringent because “a
remand for resentencing, while not costless, does not invoke the same difficulties as a remand for
retrial does.” Id. at 204 (quoting United States v. Wernick, 691 F.3d 108, 117-118 (2d Cir. 2012)).
The Court returned to the plain-error rule in the Guidelines context in Rosales-Mireles, which
addressed Olano’s fourth prong. There, like in Molina-Martrinez, the district court’s error raised
the defendant’s Guidelines range from 70-87 months to 77-96 months and it imposed a 77-month
sentence. See Rosales-Mireles, 585 U.S. at 135. The Fifth Circuit affirmed the sentence because
it concluded the error wasn’t significant enough to trigger relief under Olano’s fourth-prong, which
asks whether the error affected “the fairness, integrity, and public reputation of the judicial
proceedings.” See id. at 136. This Court reversed and held that “[i]n the ordinary case, as here, the
5
The court indicated that exceptions to this general rule may arise if the district court said
it would have imposed the same sentence “irrespective of the Guidelines range,” or made clear that
it “selected” the sentence “based on factors independent of the Guidelines.” 578 U.S. at 200.
14
failure to correct a plain Guidelines error that affects a defendant’s substantial rights will” satisfy
Olano’s fourth prong. Id. at 145. The Court relied on three things to support that holding.
First, the Court again emphasized the “relative ease of correcting [Guidelines] error” because
“[a] resentencing is a brief event, normally taking less than a day and requiring the attendance of
only the defendant, counsel, and court personnel.” Id. at 140 (quoting United States v. Williams, 399
F.3d 450, 456 (2d Cir. 2005)). For this reason, the Court said its case law stating that plain error
relief should be granted “sparingly” to correct trial error is inapplicable in the Guidelines error
context. See id. at 142-43. “As we have explained, a decision remanding a case to the district court
for resentencing on the basis of a Guidelines miscalculation is far less burdensome than a retrial, or
other jury proceedings, and thus does not demand such a high degree of caution.” Id. at 143.
Second, the Court noted that apart from the effect on the parties, failing to correct a
Guidelines error on appeal has institutional costs because: (1) to “determine whether revisions to
the Guidelines are necessary,” the Sentencing Commission gathers statistics on Guidelines
calculations; and (2) “[s]imilarly, the work of the Federal Bureau of Prisons is hindered by
uncorrected Guidelines errors, because the Bureau relies, in part, on aspects of the Guidelines
calculation in designating and classifying prisoners based on security and program needs.” Id. at
140-41 & n.2.
Finally, the district court’s “role . . . in calculating the range” gives it “the ultimate
responsibility to ensure that the Guidelines range it considers is correct.” Id. at 134, 140. In this
respect, Guidelines errors are “[u]nlike” trial error, for which Olano’s test was crafted, id. at 140,
because the relative blame for missing a Guidelines error lies more heavily on the district court.
15
There is no dispute that, under Molina-Martinez and Rosales-Mireles, Gomez meets the third
and fourth prongs of the plain-error test. The Ninth Circuit’s decision to nonetheless put substantial
teeth into the second-prong of that test in the Guidelines context, and its reasoning for doing so,
conflicts with those cases in several respects.
First, the Ninth Circuit’s conclusion that Gomez should be denied relief because the purelylegal error involved here presents a “close and difficult question” conflicts with this Court’s direction
to apply Olano’s test less stringently in the Guidelines error context.
Second, considering that failing to grant Gomez relief would adversely affect “the fairness,
integrity, and public reputation of the judicial proceedings” (under Rosales-Mireles), the Ninth
Circuit’s refusal to do so because it concluded the purely-legal error involved presents a “close and
difficult question” is indefensible from the standpoint of preserving fairness and judicial integrity.
Third, and relatedly, the Ninth Circuit’s reliance on its past mistakes in construing the
California Supreme Court’s opinion in Williams to conclude that the question presented is “close and
difficult” cuts against this Court’s statement in Rosales-Mireles that one of the reasons the plain error
rule should be applied less stringently in the Guidelines context is because the district court bears
some responsibility for Guidelines error. Here, that reasoning has even more force because the Ninth
Circuit relied on its own past mistake to deny Gomez relief.
Finally, the third and fourth prongs of Olano’s test – not the second prong – are meant to be
the gatekeepers against excessive grants of plain-error relief. See Henderson, 568 U.S. at 279
(holding that allowing courts to determine that an error is plain based on controlling law at the time
of appeal provides flexibility so courts can “identify those instances in which the application of a
new rule of law to cases on appeal will meet the demands of fairness and judicial integrity”). With
16
its “close and difficult question” test the Ninth Circuit has thus set up a barrier to relief that this
Court deliberately sought to lower for Guidelines errors in Molina-Martinez and Rosales-Mireles.
IV.
The Ninth Circuit’s En Banc Opinion Conflicts With The Second Circuit’s Relaxed
Application Of Olano’s Second Prong
As noted above, to support its holdings in Molina-Martinez and Rosales-Mireles this Court
cited two Second Circuit cases that applied that court’s longstanding rule that the plain-error test
should be applied less stringently when dealing with sentencing error, including when assessing
Olano’s second prong.6
One of those cases is Williams, which this Court cited approvingly in Rosales-Mireles, 585
U.S. at 140. There, the Second Circuit considered the different circuits’ approaches to appeals by
defendants who were sentenced under then-mandatory Guidelines and, while they were on appeal,
this Court rendered the Guidelines advisory in United States v. Booker, 543 U.S. 220 (2005). The
Second Circuit noted that in dealing with this issue, the circuit courts “reckon with the plain-error
doctrine, but apply it in different ways,” which “prompt[ed]” the court in Williams “to analyze the
application of the plain error doctrine in the context of a review of sentences.” Williams, 399 F.3d
at 454. In the portion of the opinion relied on by this Court in Rosales-Mireles, the Second Circuit
contrasted the circumstances with respect to review of trial versus sentencing errors and explained
why Olano’s test should be applied less stringently in the latter context.
The Second Circuit began by noting that Olano dealt with trial error and relief in that context
comes at the immense cost of holding a new trial. See id. at 455-56. Thus, the court explained,
6
Prior to Molina-Martinez and Rosales-Mireles, the D.C. Circuit took the same approach.
See, e.g., United States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994) (“[w]hen an error in sentencing
is at issue, however, the problem of finality is lessened, for a resentencing is nowhere near as costly
or as chancy an event as a trial”).
17
when a court reviews forfeited trial error relief is granted only “sparingly.” Id. at 456. “[T]he
context of review of a sentencing error is fundamentally different. From the standpoint of the
parties, the error might have great significance. An error yielding an unduly low sentence would
deny the public its entitlement to a sentence sufficient to achieve the purposes of punishment. An
error yielding an unduly high sentence would deny the defendant freedom for some length of time.
More importantly, the cost of correcting a sentencing error is far less than the cost of a retrial.” Id.
In light of these considerations, and the relative ease of reliably correcting sentencing error, the court
concluded that “there is no need to apply the plain error doctrine in the sentencing context with
precisely the same procedure that has been used in the context of review of errors occurring at trial.”
Id. at 457.
Considering that the error addressed in Williams was abundantly clear following Booker, the
court did not focus on Olano’s second prong. But in a footnote it said:
It might be argued that, in the sentencing context, where error can be easily corrected,
the requirement that an error be “plain” is ill-advised. Although there is a sound
reason not to require a new trial because of an unpreserved error that is not “plain,”
a sentence ought not to impose too few or too many years just because the error took
some thought for the appellate court to identify. However, Rule 52(b) establishes the
requirement that the error be “plain,” and we have no occasion on this appeal . . . to
consider whether the second Olano prong should be ameliorated in the context of
sentencing errors.
Williams, 399 F.3d at 460 n.14 (emphasis added). Not correcting an error that satisfies Olano’s third
and fourth prongs solely “because the error took some thought for the appellate court to” resolve is
“ill-advised,” for obvious reasons. Even more so where, as here, the court declined to correct the
error because previous Ninth Circuit opinions had made a fundamental mistake in reading the
California Supreme Court’s Williams opinion. “[W]ho wouldn’t hold a rightly diminished view of
18
our courts if [they] allowed individuals to linger longer in prison than the law requires only because
[the courts] [are] unwilling to correct [their] own obvious mistakes?” Hicks v. United States, 137
S. Ct. 2000, 2001 (2017) (Gorsuch, J., concurring) (citing United States v. Sabillon-Umana, 772 F.3d
1328, 1333-1334 (10th Cir. 2014)).
Presumably because of that common-sense conclusion, and despite the Second Circuit’s
reservation of the issue in Williams, in several cases that court has applied its less-stringent approach
to find sentencing error was plain. For example, in Wernick, which this Court cited approvingly in
Molina-Martinez, 578 U.S. at 204, the court began by cautioning that “the plain error doctrine should
not be applied stringently in the sentencing context, where the cost of correcting an unpreserved error
is not as great as in the trial context.” Wernick, 691 F.3d at 113 (cleaned up). To find there was
Guidelines error – Olano’s first prong – the court then undertook a detailed analysis that covered five
pages. See id. at 113-17. After finding error, the court said, “[a]lthough the Guidelines [involved]
are intricate, we also find the error – a misreading of a frequently applied Guideline – sufficiently
clear to satisfy the second prong.” Id. at 117. Under the Ninth Circuit’s approach, the error involved
in Wernick would likely be found to present too “close and difficult” a “question” to be considered
“plain.”
The Second Circuit’s opinion in United States v. Orelien, 119 F.4th 217 (2d Cir. 2024), is
to the same effect. There the court addressed whether the district court erroneously increased the
defendant’s Guidelines offense level for obstruction of justice under U.S.S.G. §3C1.1. See id. at
220. At the outset, the court cited its longstanding case law holding that the plain-error test “should
not be applied stringently in the sentencing context . . . .” Id. at 223. The court then undertook a
complicated analysis, which spanned eight pages, and found there was error. See id. at 226-33. The
19
court remanded for the district court to address that error. On Olano’s second prong, it stated only,
“we emphasize the less-than-stringent plain-error standard that we apply to our review of sentencing
determinations. . . . We in no way suggest that the district court made an elementary blunder.” Id.
at 234 n.17. Under the Ninth Circuit’s test the error presumably would have been deemed too “close
and difficult” to satisfy Olano’s second prong.
The Second Circuit’s opinion in United States v. Matta, 777 F.3d 116 (2d Cir. 2015), is
similar. There the defendant challenged a condition of supervised release that delegated to the
probation department whether he should undergo in-patient or out-patient drug treatment. See id.
at 119. The government pointed out that plain-error review applied and claimed “Matta’s argument
fails because there was no clear precedent preventing the district court’s delegation; in other words,
the error was not ‘plain.’” Id. at 121. The Second Circuit held that because Matta had not received
adequate notice of the supervised release condition, and “because the alleged error relates only to
sentencing,” “we will entertain his challenge without insisting on strict compliance with the rigorous
standards of plain error review.” Id. at 122 (cleaned up). The court then undertook a lengthy
analysis and granted relief, stating, “[a]pplying ‘relaxed’ plain error review, we conclude that the
district court’s delegation to the probation department of the discretion to require either inpatient or
outpatient drug treatment was an impermissible delegation of judicial sentencing authority.” Id. at
123. The court said nothing about Olano’s second prong or the “plainness” of the error, presumably
because it was applying a relaxed approach to the plain-error test in the sentencing context. Again,
the outcome almost surely would have been different under the Ninth Circuit’s “close and difficult”
test. See also United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002) (“relax[ing] the otherwise
rigorous standards of plain error review to correct sentencing error[]” and finding an error was plain
20
even though there was a circuit split on the issue presented, good arguments on both sides, and no
controlling Second Circuit case).
In sum, there is a conflict between the Second and Ninth Circuits’ approaches with respect
to applying Olano’s second prong in the sentencing error context, and, more specifically, in the
Guidelines error context. That conflict is bound to create unjustifiably disparate outcomes,
particularly because, as the discussion above shows, it is hard to know how much mental strain
makes a purely-legal error a “close and difficult question.” Furthermore, as discussed in RosalesMireles, 585 U.S. at 140-41 & n.2, refusing to correct legal errors that affect a defendant’s
substantial rights and impair judicial integrity will corrupt the data (a) the Sentencing Commission
relies on to create Guidelines that foster uniformity in sentencing and (b) the Bureau of Prisons relies
on to designate and classify inmates.
V.
The Ninth Circuit’s En Banc Opinion Conflicts With Fifth Circuit Case Law Holding
That A Sentencing Error Is Plain If It Is Evident From A “Straightforward
Application” Of Supreme Court Case Law
The Ninth Circuit’s en banc opinion in Gomez also conflicts with Fifth Circuit case law
holding that a sentencing error is plain if it is evident from a “straightforward application” of
controlling Supreme Court case law.
In United States v. Urbina-Fuentes, 900 F.3d 687 (5th Cir. 2018), the defendant was
convicted for illegal entry and he argued for the first time on appeal that the ex post facto clause
required that he be sentenced under the 2015 version of the Guidelines, which produced a range of
15-21 months, rather than the 2016 version under which he was sentenced, which produced a range
of 24-30 months. That issue turned on whether Urbina-Fuentes was subject to an upward adjustment
under the 2015 Guidelines because he was previously convicted of a crime of violence. The district
21
court concluded the answer was yes based on Urbina-Fuentes’s conviction for Florida burglary. See
id. at 690-91. But Florida burglary includes within its ambit the burglary of a home’s curtilage,
which does not fall within the generic definition of burglary that would categorically qualify it as a
federal crime of violence under the enumerated offenses clause in the crime of violence definition.7
See id. at 694.
The key question, then, was whether Florida’s burglary statute was divisible, such that the
court could apply a modified categorical approach to conclude Urbina-Fuentes’s burglary was of a
home, not curtilage, and thus qualified as a crime of violence under the enumerated offenses clause.
Addressing this question, the Fifth Circuit said that “[b]efore” Mathis v. United States, 579 U.S. 500
(2016), in published opinions it had “twice used the modified categorical approach to exclude from
its consideration the portion of the Florida burglary statute pertaining to burglary of curtilages. Both
of these decisions, however, moved from the premise that the modified categorical approach is
available whenever adjudicative records disclose the precise factual basis of a defendant’s
conviction. That premise no longer holds [because Mathis rejected it]. The modified categorical
approach is now only available when a court confronts alternative statutory elements tantamount to
distinct offenses.” Urbina-Fuentes, 900 F.3d at 694. The court then undertook the analysis required
by Mathis and found the Florida burglary statute was not divisible, thus Urbina-Fuentes’s burglary
conviction does not qualify as a crime of violence and he was erroneously sentenced using the 2016
Guidelines manual.
7
It was undisputed that Florida burglary is not a federal crime of violence under the elements
clause definition.
22
With respect to whether the un-preserved error on this issue was plain, the government
argued that it could not be in light of the prior Fifth Circuit case law holding the modified categorical
approach applied to Florida burglary, and the lack of any post-Mathis opinion from that court to the
contrary.
The court rejected that argument, holding that the error was plain because a
“straightforward application of Mathis produces the unmistakable conclusion that the Florida
burglary statute is indivisible.” Id. at 698.
The Fifth Circuit applied the same reasoning in United States v. Rodriguez, 25 F.4th 385, 390
(5th Cir. 2022). There the defendant argued that the district court plainly-erred when it concluded
he had previously been convicted of an “aggravated felony” and consequently sentenced him for
illegal entry under the enhanced penalty provisions in 8 U.S.C. §1326(b)(2). Specifically, he
asserted that the district court should not have applied a modified categorical approach to assess
whether the Texas sexual assault statute under which he was previously convicted was an aggravated
felony because that statute is not divisible. The government countered that even if there was error,
it could not be considered plain because there was no case law from the Fifth Circuit or the highest
Texas criminal court holding that the Texas assault statute is not divisible. See id. The Fifth Circuit
rejected that argument, concluding that the error was plain because a “straightforward application
of” Mathis shows the Texas sexual assault statute is not divisible, and thus not subject to a modified
categorical approach. Id.
Under the Fifth Circuit’s approach, the error in Gomez’s case is plain because it involves a
“straightforward application” of Borden in light of the elements of assault set out by the California
23
Supreme Court in Williams.8 The fact that previous Ninth Circuit panels misread Williams does not
change that conclusion. And, as discussed above, to deny Gomez relief on that basis runs directly
contrary to Olano’s fourth prong and this Court’s discussion of judicial integrity in Rosales-Mireles.
VI.
This Case Is An Ideal Vehicle To Resolve An Important And Recurring Question
For several reasons, this case is an ideal vehicle to resolve an important and recurring
question.
First, the question presented is purely legal, cleanly presented, and outcome-determinative.
There is no dispute that Gomez satisfies Olano’s first, third, and fourth prongs. The court of appeals
denied relief solely because it concluded the error is not “plain.” Resolving that question controls
the outcome.
Second, as shown above, the Ninth Circuit’s rule that a purely legal Guidelines error can
never be plain if it presents a “close and difficult question” conflicts this Court’s precedents and
decisions from other circuits. The question presented therefore falls within Rule 10(a)’s core
concern of ensuring uniformity in federal law, a concern that is especially important in the
Guidelines context. See Rita v. United States, 551 U.S. 338, 349 (2007) (overarching purpose of the
Guidelines is “uniformity” and “proportionality in sentencing”).
Third, the question presented is exceptionally important. Sentencing issues arise in the
overwhelming majority of federal criminal appeals. See U.S. Sentencing Commission, Sourcebook
of Federal Sentencing Statistics at 150, Table A-1 (2024). In those appeals, application of the
Guidelines will usually be critical – a staggering 96.6% of sentences fall within or below the
8
As discussed above, this is effectively the same reasoning the Tenth Circuit applied to find
the error involved in this case is plain. See Sjodin, 139 F.4th at 1204.
24
applicable range, thus when those ranges “move up or down, offenders’ sentences move with” them.
Peugh v. United States, 569 U.S. 530, 544 (2013); U.S. Sentencing Commission, Sourcebook of
Federal Sentencing Statistics at 58, Table 29 (2024). The rule adopted below will systematically
deny relief in many of those cases in which there is acknowledged Guidelines error, the defendant’s
substantial rights were affected, and concerns about judicial integrity are implicated. Thus, this case
starkly presents the fairness and integrity concerns underlying Molina-Martinez and Rosales-Mireles
and provides an ideal opportunity to complete the framework begun in those cases by clarifying how
Olano’s “plainness” prong applies in the context of purely legal Guidelines error.
Finally, the consequences for Gomez are substantial because the error doubled his Guidelines
range from 130-162 months to 262-327 months, and the latter served as the district court’s North
Star when imposing a 188-month sentence. See Glover v. United States, 531 U.S. 198, 203 (2001)
(“our jurisprudence suggests that” even a “minimal amount” of additional time in prison has
constitutional “significance”); United States v. Frady, 456 U.S. 152, 163 (1982) (stating that Federal
Rule of Criminal Procedure 52(b) is meant to ensure “our insistence that obvious injustice be
promptly redressed”).
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CONCLUSION
Gomez respectfully requests that the Court grant the petition for a writ of certiorari.
Respectfully submitted,
/s/ Todd W. Burns
Date: April 10, 2026
TODD W. BURNS
Counsel of Record
Burns & Cohan
501 West Broadway, Suite 1510
San Diego, California 92101-5008
(619) 236-0244
todd@burnsandcohan.com
Counsel for Petitioner
26
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