The en banc Ninth Circuit to reconsider important issues of appellate practice and whether CPC 245(a) is a crime of violence

April has seen significant en banc activity in the Ninth Circuit. On the civil front, the Court decided Briskin v. Shopify, Inc., which applied the traditional principles governing personal jurisdiction to the e-commerce context and, in so doing, overruled precedent that created Internet exceptionalism in this sphere. The decision will have major implications (as the amici list confirms), so expect a petition for certiorari in due course.

On the criminal law front, the Ninth Circuit granted en banc review in two cases. Unsurprisingly, in both cases, the government sought en banc review. Also unsurprisingly, both cases target aspects of appellate practice that the government perceives as too defendant friendly (in the vein of United States v. Lucas, which abrogated the clear-and-convincing standard for sentencing enhancements that have a disproportionate effect on the sentence).

First, the Court granted en banc review in United States v. Gomez, which held that CPC 245(a) (assault with a deadly weapon) is no longer a crime of violence after the Supreme Court’s decision in Borden v. United States, 593 U.S. 420 (2021). Although the defendant had not raised the issue in the district court, the panel corrected the error and vacated the sentence by relying on the pure-question-of-law exception to the plain error standard. In its petition, the government argued primarily that Ninth Circuit precedent recognizing this exception is inconsistent with Fed. R. Crim. 52 and urged the Court to overrule it. The Court granted en banc review and, according to its standard practice, vacated the panel opinion.

Even assuming that the Court abrogates the pure-question-of-law exception to the plain error standard, it will almost certainly decide whether CPC 245(a) is a crime of violence. Defendants should therefore continue to raise the issue both in district court and on appeal (even if not raised below, since error must be plain at the time of the appellate decision).

Second, the Court granted en banc review in United States v. Atherton, which held that a procedural Due Process challenge to sentencing falls within the illegal-sentence exception to appellate waivers. The panel found that the defendant’s due process rights were not violated and affirmed the sentence. The government nonetheless sought en banc review, challenging the legitimacy of the well-established illegal-sentence exception to appellate waivers and, in the alternative, arguing that the exception only encompasses substantive constitutional challenges to a sentence.

Under Ninth Circuit precedent, the illegal-sentence exception is read into every plea agreement, so the en banc decision in Atherton will have significant impact on criminal appellate practice throughout the Circuit.

Both United States v. Gomez and United States v. Atherton will be argued the week of September 8, 2025, in San Francisco.