Precedent Creating Exception to Plain-Error Rule Overruled

Wednesday, January 14, 2026

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Ninth Circuit:

Precedent Creating Exception to Plain-Error Rule Overruled

Opinion Says Judge Erred in Finding That Plaintiff’s Refusal to Accept Payment Until Court Ruled on Fee Motion Relating to Enforcement Justified Allowing Debt to Continue to Grow After Defendant Agreed to Release Funds

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals, sitting en banc, yesterday overruled its own precedent establishing that unpreserved claims raised for the first time on an appeal of a criminal judgment may be considered de novo if they raise pure questions of law, saying the carve-out to Federal Rule of Criminal Procedure, rule 52, which specifies that only “[a] plain error…may be considered,” contravenes U.S. Supreme Court guidance and the statute’s plain terms.

Yesterday’s opinion, authored by Circuit Judge Holly A. Thomas, also tackles the question of whether California Penal Code §245(a)(1), which criminalizes assault with a deadly weapon, qualifies as a “crime of violence” for purposes of a federal sentencing enhancement. Declaring that it does not, the en banc court further overruled its previous decisions to the contrary.

Chief Judge Mary H. Murguia and Circuit Judges Ronald M. Gould, Milan D. Smith Jr., Jacqueline H. Nguyen, Ryan D. Nelson, Eric D. Miller, Lucy H. Koh, Jennifer Sung, and Ana de Alba joined in the opinion.

Circuit Judge Daniel P. Collins penned a concurring opinion, saying that “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)” but that “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 under the federal sentencing scheme.

Career Offender Enhancement

The question arose after Jesus Ramiro Gomez pled guilty to distributing methamphetamine in May 2022. At a 2023 sentencing hearing, Senior District Court Judge James V. Selna of the Central District of California sentenced him to more than 15 years in prison based, in part, on a finding that he was subject to a career offender enhancement due to prior convictions for a drug-related offense and one count of having violated §245(a)(1).

Under the U.S. Sentencing Guidelines (“U.S.S.G.”), the enhancement attaches to a controlled substance offense or one that amounts to a “crime of violence” if the defendant has a criminal history that includes two prior convictions for those same categories of offenses.

A “crime of violence” is defined as “any offense…, 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.” To determine whether a conviction qualifies, courts look at whether the elements of the statute at issue meet the federal definition.

Gomez did not object to the finding that his conviction for §245(a)(1) amounts to a “crime of violence” under the U.S.S.G. before the trial court, raising the challenge for the first time on appeal.

Three-Judge Panel Decision

A three-judge panel, consisting of Thomas and Roopali H. Desai as well as Senior District Court Judge James Alan Soto of the District of Arizona, sitting by designation, vacated Gomez’s sentence in September 2024, having exercised discretion to review the unpreserved legal challenge de novo. The court determined that assault with a deadly weapon in California is not a predicate offense for the career offender enhancement.

Yesterday’s decision followed a vote by a majority of the court’s nonrecused active judges to rehear the matter en banc. Thomas wrote:

“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 [2021] decision in Borden v. United States…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.”

Long Series

Acknowledging a “long series of decisions” establishing that a forfeited pure question of law may be considered on appeal under the de novo standard, the jurist pointed out that, “[b]y the early aughts, however, the Supreme Court had made clear that appellate courts have limited authority to review unpreserved legal issues.”

Citing high court cases faulting appellate courts with circumventing the plain-error rule relating to claims brought under the Death Penalty Act of 1994 and one asserting violations of the terms of a plea agreement, she opined: “The time has come for us to right our course. We ‘creat[ed] out of whole cloth’ a pure question of law exception to Rule 52(b)….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.”

Turning to whether the section qualifies as a “crime of violence” under federal law, she noted:

“We have observed that…the least culpable act criminalized under the statute of conviction must involve the level of force described in the federal crime of violence definition….Gomez argues that assault with a deadly weapon under Section 245(a)(1) does not match the ‘elements clause’…because Section 245(a)(1) criminalizes a lesser mens rea than the federal definition. We agree.”

Borden Case

Citing Borden, she said:

“[T]he 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….[A four justice] 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.’ ”

The plurality opinion concluded that the phrase “against another” contemplates an action that is directed toward another person, and reckless conduct is not so limited.

Justice Clarence Thomas, concurring in the judgment, penned an opinion agreeing that reckless crimes do not satisfy the elements clause based on the “use of physical force” language, which he said is “well-understood” to apply only to intentional acts.

Recklessness Is Insufficient

Saying that five high court justices “agreed that a mens rea of recklessness is insufficient to satisfy the elements clause,” the Ninth Circuit judge reasoned:

“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.’…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.”

Under those circumstances, she declared that “we overrule our pre-Borden decisions holding that a conviction under Section 245(a)(1) is a crime of violence” under the U.S.S.G. but remarked:

“Given these decisions[,]…we cannot conclude that the answer we have reached today is plain….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.”

Collins’ View

Commenting that, “[i]n evaluating whether our §245(a)(1) precedent is inconsistent with Borden, we must first determine what the binding holding of Borden is,” Collins said that where “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.’ ”

Arguing that “the narrowest ground of the decision…is [the] agreement that an offense that may be committed with a mens rea of recklessness does not satisfy the ‘elements clause,’” he opined:

“In my view, the majority…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.’ ”

Saying that the “distinctive mens rea” required by §245(a)(1) is “significantly more demanding mental state than the sort of recklessness rejected in Borden,” he asserted that “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.”

The case is U.S. v. Gomez, 23-435.