Ninth Circuit addresses application of Guidelines enhancements for substantial disruption of government functions and attempted obstruction of justice in threats cases
United States v. Brandenburg, decided February 17, 2026
Panel: McKeown (authored), Friedland, Sung
Holding: Non-public-facing security measures in response to threat may qualify as “substantial disruption” of governmental functions under U.S.S.G. § 2A6.1(b)(4)(A).
Impatient for a decision following his divorce proceedings, Bryan Brandenburg sent court staff emails threatening to bomb the court and other targets. These threats led the court to institute numerous enhanced security measures. The government indicted and convicted Mr. Brandenburg for transmitting threats in interstate commerce in violation of 18 U.S.C. § 875(c), and making threats about explosives in violation of 18 U.S.C. § 844(c). At sentencing, Mr. Brandenburg objected to the enhancement of his sentence pursuant to § 2A6.1(b)(4)(A) of the Guidelines, which applies when an offense resulted in “substantial disruption” of (inter alia) public or governmental functions. Mr. Brandenburg argued that he caused no “disruption,” because despite his threats, the court continued to operate “as intended.” The district court overruled his objection and applied the enhancement. The Ninth Circuit affirmed, holding that even “behind-the-scenes” responses to a threat, which do not prevent a public institution from performing its essential function, may constitute “disruption” for purposes of § 2A6.1(b)(4)(A).
The opinion is here.
United States v. Ho-Romero, decided February 18, 2026
Panel: Berzon (authored), Bennett (dissented), Sung
Holding: Finding of intent to obstruct justice required for application of U.S.S.G. § 3C1.1 in threat context.
While awaiting trial on a drug charge, David Ho-Romero learned that his ex-girlfriend had likely testified before the grand jury. He telephoned her and said: (1) that if she did not tell him about her testimony, he was “going to go over there”; and (2) “If I have a problem, [you] have a problem.” At sentencing following his guilty plea, the government sought an enhancement under § 3C1.1 of the Guidelines, which applies to defendants who “willfully” attempt to obstruct or impede the administration of justice in their prosecutions. Accepting the government’s argument that the guideline is governed by an “objective” standard, the district court applied the enhancement without making a finding that Mr. Ho-Romero had the subjective intent to obstruct justice. The Ninth Circuit held that this was error. The court reasoned that the guideline’s use of the term “willfully” required a finding of a conscious purpose of obstructing justice. Even threatening-sounding statements may be made without such a subjective intention. Moreover, the “objective” standard would raise First Amendment concerns. The court found remand necessary because only the district court could make the required mens rea finding. The error was not harmless because on the record, the district court’s refusal to make the mens rea finding would not have amounted to an abuse of discretion. Judge Bennett dissented, opining that the error was harmless, because the district court’s refusal to make the finding would have amounted to an abuse of discretion.
The court also reiterated procedural principles established in prior cases: (i) the fact that an appellant is serving the supervised release portion of his sentence does not moot his appeal challenging the length of his custodial sentence, because success on remand may lead the district court to curtail his supervised release term; (ii) where a district court failed to make a finding on a necessary element of a Guidelines provision, remand is required because the court of appeals may not make that finding itself, regardless of whether the “record is complete” with respect to the issue; and (iii) the fact that an appellant was sentenced below the bottom of the correct Guidelines range does not obviate the need for remand in the face of a Guidelines error; any Guidelines calculation error is a significant procedural error that requires remand for resentencing.
The opinion is here.