Thursday, February 19, 2026
Page 3
Ninth Circuit:
Judge’s Failure to Find Threat to Witness Was Willful Obstruction Requires Resentencing
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday ordered that a sentence be vacated because it was enhanced based on a threat to a witness without the judge making the requisite finding that the defendant “wilfully” obstructed or attempted to obstruct justice, drawing a dissent saying that the subjective intent is so clear from the evidence that any error is harmless.
Senior Judge Marsha S. Berzon authored the majority opinion, joined in by Judge Jennifer Sung. Judge Mark J. Bennett was the dissenter.
There were two versions of each opinion: one released publicly and a second containing reference the evidence that remains under a seal. The alleged threats were made to persons identified as “Witness 1” and “Witness 2.”
Witness 1 had been in a romantic relationship with Ho-Romero but his violent conduct toward her led to her obtaining a restraining order against him. Witness 2 was a close friend of Witness 1.
Mens Rea Element
Berzon said that District Court Judge Dana M. Sabraw of the Southern District of California erred in enhancing the sentence of David Ho-Romero, who pled guilty to importation of methamphetamine, “without making any mens rea finding.”
Sabraw sentenced the defendant to five years in prison followed by five years of probation. Although the defendant has already served the time in prison, Berzon said, the matter is not moot because the length of probation is tied to the duration of the sentence.
What Sabraw discerned to have been threats were made in connection with Ho-Romero’s demand that the content of Witness 1’s testimony before the grand jury be related to him.
Bennett’s Dissent
Bennett protested:
“[T]he district court would have abused its discretion had it not found by a preponderance of the evidence that Ho-Romero’s statements constituted a threat to obstruct justice. Yelling and upset, Ho-Romero told Witness 1 and Witness 2 that ‘if I have problems you’re going to have problems,’ and stated that ‘he was going to go there and find them.’ Uncontroverted sealed testimony suggests that Ho-Romero already knew the content of Witness l’s testimony and that he threatened to find and approach her. Given Ho-Romero’s history with Witness 1 and Witness 2, these statements clearly demonstrate an intent to intimidate and obstruct justice.”
Berzon countered:
“On the record at the sentencing proceeding, the district conn would not have abused its discretion by determining that Ho-Romero did not act with the conscious purpose of obstructing justice. So the error here is not harmless.”
The case is U.S. v. Ho-Romero, 23-3848.
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