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- v. JVS-FWS-5 JESUS RAMIRO GOMEZ, AKA Hunter, OPINION

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted March 5, 2024 Pasadena, California

Filed September 4, 2024

Before: Holly A. Thomas and Roopali H. Desai, Circuit Judges, and James Alan Soto, District Judge. *

Opinion by Judge Desai; Concurrence by Judge Soto

* The Honorable James Alan Soto, United States District Judge for the District of Arizona, sitting by designation. 2 USA V. GOMEZ

SUMMARY **

Criminal Law

The panel vacated a sentence and remanded for resentencing in a case in which the district court applied a career offender enhancement under U.S.S.G. § 4B1.1 on the ground that Gomez’s prior conviction for assault with a deadly weapon under California Penal Code § 245(a)(1) was a “crime of violence.” To satisfy the elements clause of the career offender guideline, U.S.S.G. § 4B1.2(a)(1), a crime must require use of force with a mens rea more culpable than recklessness, as defined in Borden v. United States, 593 U.S. 420 (2021). Because California’s assault statute sweeps in reckless uses of force, a conviction under § 245(a)(1) is not a categorical match with the elements clause and does not constitute a crime of violence. The panel held that this court’s previous decisions holding that § 245(a)(1) constitutes a crime of violence are clearly irreconcilable with Borden, which established a bright line rule: if a statute criminalizes uses of force committed only with a conscious disregard of a substantial risk to another person, it is not a crime of violence. This court’s prior cases do not apply that test, and thus improperly categorize § 245(a)(1) as a crime of violence. The government argued that this court can affirm on the ground that § 245(a)(1) satisfies an alternative definition of ** 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

crime of violence set forth in the career offender guideline’s enumerated offenses clause, U.S.S.G. § 4B1.2(a)(2). The panel rejected this argument because aggravated assault under the enumerated offenses clause requires a mens rea greater than extreme recklessness. The district court thus improperly applied the career offender enhancement at sentencing. Concurring, District Judge Soto agreed with the majority that § 245(a) criminalizes conduct with a mental state short of recklessness, and therefore does not constitute a crime of violence according to Borden. Calling attention to what he fears will precipitate confusion and disparate outcomes in future cases, he wrote that the majority opinion cannot be reconciled with the en banc decision in United States v. Begay, 33 F.4th 1081 (9th Cir. 2022), which held that a second-degree-murder conviction under 18 U.S.C. § 1111(a) is a crime of violence.

COUNSEL Robert J. Keenan (argued), Assistant United States Attorney, Santa Ana Section; Bram M. Alden, Assistant United States Attorney, Criminal Appeals Section Chief; E. Martin Estrada, United States Attorney; United States Department of Justice, Office of the United States Attorney, Santa Ana, California; David R. Friedman, Assist