Conviction in Paul Pelosi Attack Stands Despite Initial ‘Clear’ Sentencing Error

Thursday, March 26, 2026

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Conviction in Paul Pelosi Attack Stands Despite Initial ‘Clear’ Sentencing Error—Ninth Circuit

Opinion Says While Judge Committed Reversible Slip of Not Allowing Defendant to Speak, Federal Rule Allowing Correction of Technical Mistakes Authorized Salvific Resentencing

By a MetNews Staff Writer

DAVID DEPAPE
assailant

The Ninth U.S. Circuit Court of Appeals yesterday affirmed the 30-year prison sentence and conviction of the man who attacked the husband of then-Speaker of the U.S. House of Representatives Nancy Pelosi inside the couple’s San Francisco home, saying that a District Court judge committed “clear error” by failing to provide an opportunity for the defendant to speak at sentencing but that the mistake was properly rectified by reopening and resentencing him.

At issue is the interplay between Federal Rules of Criminal Procedure Rule 32(i)(4)(A)(ii), which provides that a sentencing court must “permit the defendant to speak or present any information to mitigate the sentence,” and Rule 35, which specifies that “the court may correct a sentence that resulted from arithmetical, technical, or other clear error” within 14 days of the mistake.

Circuit Judge Patrick J. Bumatay authored yesterday’s opinion, joined in by Circuit Judges Anthony D. Johnstone and Ana de Alba, in which he pointed out that “[w]e have not yet addressed whether a violation of Rule 32’s right to allocute constitutes an ‘arithmetical, technical, or other clear error’ that may be corrected under Rule 35(a)” and declared:

“A district court’s failure to afford a defendant the allocution right is unquestionably erroneous and is thus correctable as ‘other clear error’ under Rule 35(a).”

Acknowledging that the Third Circuit has adopted a limited reading of Rule 35, having found that the statute only applies to errors that are akin to arithmetical or technical mistakes, Bumatay declined to adopt such a narrow interpretation but said that a violation of a defendant’s right to speak would still qualify even under that understanding.

Attempted Kidnapping Charges

Seeking to invalidate his sentence and convictions was David DePape, who was found guilty by a jury of attempting to kidnap a federal officer, under 18 U.S.C. §1201(d), and assaulting the family member of a U.S. official, as prohibited by 18 U.S.C. §115(a)(1)(A), in November 2023.

According to prosecutors, he entered Nancy Pelosi’s residence in the early morning hours of Oct. 28, 2022 and demanded to speak with the then-speaker. When the representative’s husband, Paul Pelosi, informed the intruder that the politician would not be home for days, DePape attacked him with a hammer, fracturing the victim’s skull.

DePape told police that he was planning on holding the California politician hostage to “get her to tell the truth” about Russian influence in the 2016 election and, if she failed to give him satisfactory answers to his questions, to “break her kneecaps.”

After the jury found him guilty of both charges, District Court Judge Jacqueline Scott Corley of the Northern District of California sentenced him to the statutory maximum of 30 years in prison on May 17, 2024, without offering the defendant an opportunity to be heard. Later that day, prosecutors with the U.S. Attorney’s Office realized the mistake and moved to reopen sentencing under Rule 35; DePape opposed the request.

On May 18, Corley granted the motion, vacated the prior sentence, scheduled a new hearing for May 28, and ordered the defendant to provide any response by May 22.

At the new sentencing hearing, DePape was permitted to speak and said that he was “sorry for what I did, especially to Paul Pelosi” and that he “should have just left the house when I realized Nancy Pelosi wasn’t home.”

Undeterred, Corley resentenced him to 30 years in prison.

Start With Text

Addressing whether Corley’s initial blunder qualifies as a correctable mistake under Rule 35, Bumatay wrote:

“As always, we start with the text….While neither party contends that the Rule 32 error is an ‘arithmetical’ or ‘technical’ error, their definitions help us understand the meaning of ‘other clear error.’ Any grade schooler can tell us what an ‘arithmetical’ error is. It involves a numerical error of ‘addition, subtraction, multiplication, [or] division.’…And a ‘technical’ error is one involving ‘strict legal interpretation.’ ”

Saying that “clear error” refers to “ ‘[a] trial judge’s decision or action that appears to a reviewing court to have been unquestionably erroneous,’ ” he opined:

“So ‘other clear error’ here means an ‘unquestionably erroneous’ decision that’s different from a ‘technical’ or ‘arithmetical’ error.”

Noting that “[w]e’ve recognized that allocution” is an essential element of the sentencing process since 1689, when a court recognized that the failure to ask the defendant if he had anything to add before imposing a penalty undermines the judgment of conviction, he concluded:

“[F]ailing to afford a defendant his Rule 32 allocution right is unquestionably erroneous and falls within Rule 35(a)’s ‘other clear error.’…Thus, the district court properly re-sentenced DePape under Rule 35(a) after giving him a chance to personally address the court.”

Addressing the Third Circuit’s view, Bumatay remarked:

“It is true that, under the canon of ejusdem generis, ‘a general phrase can be given a more focused meaning by the terms linked to it.’…But this does not help DePape. Even if we were to give “clear error” a narrower reading, a Rule 32(i)(4)(A)(ii) violation would still fit. Like an arithmetical error, such as miscalculating the sentencing guidelines, or a technical error, such as failing to impose a mandatory sentence, denying a defendant the right to allocute is a procedural error that is readily discernible from the sentencing record….”

Rejecting DePape’s assertion that the application of Rule 35 was inappropriate because Corley was required to “re-exercise” her discretion after hearing him speak, the jurist said:

“According to DePape, any error requiring the use of sentencing discretion falls out of Rule 35(a)’s scope. But that’s wrong. While it’s true that correcting a Rule 32(i)(4)(A)(ii) violation may result in reconsideration of the sentencing factors,…nothing in Rule 35(a)’s text limits its scope in this way.”

He was similarly unpersuaded by DePape’s allegation that Corley violated his due process rights by granting the prosecutor’s motion less than 24 hours after it was filed, without the benefit of adversarial briefing. Bumatay commented:

“We see no due process violation. The district court gave DePape four days to respond to the government’s motion to reopen sentencing, did not reopen sentencing until it received his opposition briefing, and addressed his arguments against the applicability of Rule 35(a) in a well-reasoned order.”

In a memorandum decision, also filed yesterday, the court rejected the defendant’s other challenges, saying that sufficient evidence supported the conviction and that Corley did not err in admitting graphic video footage showing the aftermath of the assault.

The case is U.S. v. DePape, 24-3458.

DePape was sentenced to life in prison without the possibility of parole in California state court on Oct. 29, 2024. His attorneys indicated that they will appeal the kidnapping, burglary, and other convictions.