Ninth Circuit Overturns Exception to Criminal Plain Error Review

A full panel of Ninth Circuit judges overturned Tuesday the court’s decades-long precedent of granting an exception to the federal rule of criminal procedure’s “plain error” review standard when the issue on appeal is a “pure question of law.”

The 11-judges, known as an en banc panel, determined that the appeals court should have long ago done away with its “pure question of law” exception after a series of contrary rulings from the US Supreme Court.

“The time has come for us to right our course,” Judge Holly Thomas wrote in the majority opinion the US Court of Appeals for the Ninth Circuit. The court has created “an exception that is incompatible with Supreme Court precedent and the plain language of” the rules of criminal procedure, she said.

Rule 52 of the federal rules of criminal procedure requires appeals courts to ignore any argument raised on appeal that wasn’t properly raised before the trial court, unless it is a “plain error that affects substantial rights.”

In the case before the Ninth Circuit, criminal defendant Jesus Ramiro Gomez, who pled guilty to distribution of methamphetamine in 2022, faced a career offender sentencing enhancement because the trial court classified his prior conviction under California law for assault with a deadly weapon as a “crime of violence.”

Gomez didn’t challenge that classification until his opening brief before the original three-judge panel before the Ninth Circuit. That panel applied the pure question of law exception and reviewed his case as new instead of under Rule 52’s plain error standard. The appeals court ruled that Gomez’s prior conviction wasn’t a crime of violence before the court voted to rehear the case en banc.

The Tuesday en banc opinion said starting in the late 1970s, the Ninth Circuit created a narrow exception to the plain error review standard when the issue is purely one of law and doesn’t affect the factual record.

But the Supreme Court in the early 2000s made clear that appeals courts “have limited authority to review unpreserved legal issues” and that exceptions to Rule 52 “would disturb the careful balance it strikes between judicial efficiency and the redress of injustice,” Holly wrote.

Applying the plain error standard to Gomez’s case, the Ninth Circuit ultimately upheld the trial court’s career offender enhancement.

The appeals court concluded that the trial court did commit an error because California’s criminal code for assault with a deadly weapon doesn’t qualify as a crime of violence under the US Supreme Court’s 2021 ruling in Borden v. United States. Under Borden, a crime of violence requires an intentional application of force, which isn’t required under California’s law.

But the appeals court said the error wasn’t plain and was instead a “close and difficult question.”

Burns & Cohan Attorneys at Law represent Gomez.

The case is USA v. Gomez, 9th Cir., No. 23-435, 1/13/26.