2024’s Crucial Circuit Splits: How Diverging Legal Opinions Could Shape the Future of Federal Law [Deep Dive #6]

Circuit splits aren’t just legal battles—they’re high-stakes showdowns that leave entire regions in the dark, creating chaos in the consistency of federal law.

Circuit splits are more than just legal disagreements; they create a patchwork of interpretations that leave federal law applied inconsistently across the country. When the U.S. Courts of Appeals—often the final word on legal matters—reach divergent conclusions, it can lead to confusion, uncertainty, and uneven treatment for litigants, depending on where they live. As these courts issue thousands of decisions every year, the ripple effects of these splits can be far-reaching, affecting everything from basic legal rights to major policy issues.

At their core, circuit splits aren’t just about differing legal opinions; they’re about the very clarity and predictability of federal law. When appellate courts interpret the same law in opposing ways, it puts everyone in a bind—from litigants unsure of their rights to lawmakers unsure of the law’s true intent. Whether it's a federal statute, a constitutional principle, or regulatory language, these splits can make the legal landscape feel fragmented, especially when courts hold starkly different views on key issues like employment rights, healthcare, or arbitration agreements.

The implications of these disagreements go beyond just the law; they highlight unresolved policy debates that are directly tied to Congress’s power to legislate and oversee. These conflicts—whether over sentencing guidelines or employment discrimination—serve as a reminder that clearer, more cohesive lawmaking is necessary to bridge the gaps. And when the U.S. Supreme Court is called upon to step in, it may be years before a final resolution settles the dispute, leaving a trail of uncertainty in its wake.

Even more, circuit splits don’t just reflect confusion—they can act as a bellwether for lawmakers, signaling areas where legislative intervention is needed. When courts are at odds, it often means the law itself is ambiguous, and Congress may need to step up with reforms to restore uniformity and fairness. In this way, circuit splits do more than complicate legal practice; they shape the ongoing conversation between the judiciary and the legislature, influencing the very development of federal law.

Losing a case in the context of a circuit split may not necessarily be a negative outcome, especially if the split is significant enough to increase the likelihood of U.S. Supreme Court review. When appellate courts disagree on a legal issue, the Supreme Court often intervenes to resolve the inconsistency, which can lead to a more definitive and uniform interpretation of the law. A case that contributes to a circuit split may position the issue for a broader, nationwide resolution, giving the losing party an opportunity for the Supreme Court to clarify the law in their favor or set a precedent that may align with their position.

The remainder of this article tracks data on all federal appeals courts’ opinions discussing active circuit splits during 2024 and then dives into ten of the decisions that highlight major fault lines between the circuits.

Data

The federal courts of appeals examined circuit splits in 173 decisions during the year 2024. There are several common features worth exploring from these decisions.

Although the Ninth and Fifth Circuits have the most cases each year as they are the biggest circuits, the Sixth Circuit had the most opinions discussing open splits. There is a substantial drop off in these decisions after the Fifth Circuit and the subject matter specific Federal Circuit not surprisingly discussed the fewest splits in its opinions.

Many of these cases deal with criminal and related issues including indictment, fraud, assault, murder, and more. There are also other types of interesting and diverse issues raised in these cases including constitutionality, employment, and even First Amendment / religion.

Lastly, a look at the law firms involved in multiple cases from this set:

The United States and associated governmental entities were not covered in the graph above and would easily be the most active employer of attorneys involved in these appeals. Of the firms with multiple appeals in this set Gibson Dunn far outpaces the rest. There are a mix of big law and small firms that are engaged in these appeals nationwide down to the local level highlighting the diversity of the cases and of the scope of the splits.

Splits

The circuit splits described below highlight several key legal issues with differing interpretations across federal appellate courts. These include whether nonretroactive changes to mandatory minimum sentences under the First Step Act can be considered as "extraordinary and compelling reasons" for sentence reductions, with some circuits allowing consideration and others prohibiting it; whether government intrusion into the attorney-client relationship requires a showing of prejudice; whether forum-selection clauses can bind non-signatories based on a "closely related" doctrine; the scope of civil liability under the Trafficking Victims Protection Reauthorization Act (TVPRA) regarding human trafficking; whether drug conspiracy convictions can be sustained based on distribution-quantity transactions; class certification in cases involving insurance violations requiring individualized determinations; the interpretation of sentencing guidelines involving "another felony offense"; and whether Section 1981 protects against discrimination based on citizenship status. These splits reflect ongoing debates in the courts over various legal doctrines and their application in specific cases.

Case #1 United States v. Rutherford (CA3)

Decision for Government

Attorneys:

Justin Berg Kellogg Hansen Todd Figel & Frederick Counsel for Appellant

Geoffrey Block Kellogg Hansen Todd Figel & Frederick Counsel for Appellant

Alex Treiger Kellogg Hansen Todd Figel & Frederick Counsel for Appellant

Salvatore L. Astolfi Office of United States Attorney Counsel for Appellee

Robert A. Zauzmer Office of United States Attorney Counsel for Appellee

David A. O'Neil Debevoise & Plimpton Counsel for Amicus Appellants National Association of Criminal Defense Lawyers, FAMM, and Federal Public & Community Defender Organization of the Third Circuit

Amy M. Saharia Williams & Connolly Counsel for Amicus Appellants Cory Booker, and Dick Durbin

Danielle Sochaczevski Williams & Connolly Counsel for Amicus Appellants Cory Booker, and Dick Durbin

Jonathan E. Spratley Williams & Connolly Counsel for Amicus Appellants Cory Booker, and Dick Durbin

The case revolves around the issue of whether nonretroactive changes in sentencing law, such as those introduced by the First Step Act, can qualify as "extraordinary and compelling reasons" for granting compassionate release under 18 U.S.C. § 3582(c)(1)(A). Specifically, Daniel Rutherford seeks to reduce his nearly 42.5-year sentence for two armed robberies by arguing that the First Step Act's amendments to 18 U.S.C. § 924(c), which reduced certain mandatory minimum penalties, would result in a significantly shorter sentence if he were sentenced today. However, these changes were explicitly made nonretroactive by Congress.

The case revolves around the issue of whether nonretroactive changes in sentencing law, such as those introduced by the First Step Act, can qualify as "extraordinary and compelling reasons" for granting compassionate release under 18 U.S.C. § 3582(c)(1)(A). Specifically, Daniel Rutherford seeks to reduce his nearly 42.5-year sentence for two armed robberies by arguing that the First Step Act's amendments to 18 U.S.C. § 924(c), which reduced certain mandatory minimum penalties, would result in a significantly shorter sentence if he were sentenced today. However, these changes were explicitly made nonretroactive by Congress.

The circuit split centers on whether nonretroactive changes to mandatory minimum sentences under the First Step Act can be considered as "extraordinary and compelling reasons" for reducing a sentence.

In response to this split, the Sentencing Commission amended the Policy Statement in April 2023, clarifying that, generally, changes in the law (including nonretroactive amendments to the Guidelines) cannot be considered as extraordinary and compelling reasons for compassionate release. However, the Commission included a narrow exception under the newly added § 1B1.13(b)(6), which allows for nonretroactive changes to be considered if a defendant has served at least 10 years, received an unusually long sentence, and the change in law would create a significant disparity between the sentence served and the likely sentence if the motion were filed.

Positions of the other circuits

First, Fourth, Ninth, and Tenth:

• These circuits hold that nonretroactive changes in the law—such as reductions in mandatory minimum sentences—can be considered as extraordinary and compelling reasons for compassionate release.

• They argue that such changes may significantly alter the sentencing landscape and warrant reconsideration of a prisoner’s sentence.

• These circuits believe that the law’s purpose is to allow courts to adjust sentences based on changed circumstances, including changes in legal standards, even if the change is not retroactive.

Sixth, Seventh, Eighth, and D.C.:

• These circuits maintain that nonretroactive changes in the law should not be considered extraordinary and compelling reasons for compassionate release.

• They argue that compassionate release is focused on a prisoner’s current circumstances, and that changes in the law should not influence the court’s decision unless the change is explicitly made retroactive.

• These circuits emphasize that the statute is not intended to allow for sentence reductions based on changes in law that do not apply to the prisoner’s case.

Case #2 United States v. Hohn (CA10 )

Decision for Government

Attorneys:

Kannon K. Shanmugam Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC Defendant - Appellant

Abigail Frisch Vice Paul, Weiss, Rifkind, Wharton & Garrison LLP, Washington, DC Defendant - Appellant

Melody Brannon Kansas Federal Public Defenders Office, Kansas City, Kansas Defendant - Appellant

Daniel T. Hansmeier Kansas Federal Public Defenders Office, Kansas City, Kansas Defendant - Appellant

Paige A. Nichols Kansas Federal Public Defenders Office, Kansas City, Kansas Defendant - Appellant

Lydia Krebs Albert Kansas Federal Public Defenders Office, Kansas City, Kansas Defendant - Appellant

James A. Brown Assistant United States Attorney, Topeka, Kansas Plaintiff - Appellee

Kate E. Brubacher United States Attorney, Topeka, Kansas Plaintiff - Appellee

Virginia L. Grady Federal Public Defender, Districts of Colorado and Wyoming, Denver, CO Amicus Curiae (in support of Defendant - Appellant)

Julia O'Connell Federal Public Defender, Northern District of Oklahoma, Tulsa, OK Amicus Curiae (in support of Defendant - Appellant)

Margaret Katze Federal Public Defender, District of New Mexico, Albuquerque, NM Amicus Curiae (in support of Defendant - Appellant)

Scott Graham Federal Public Defender, Eastern District of Oklahoma, Muskogee, OK Amicus Curiae (in support of Defendant - Appellant)

Jeffrey M. Byers Federal Public Defender, Western District of Oklahoma, Oklahoma City, OK Amicus Curiae (in support of Defendant - Appellant)

Scott Wilson Federal Public Defender, District of Utah, Salt Lake City, UT Amicus Curiae (in support of Defendant - Appellant)

Randall L. Hodgkinson National Association of Criminal Defense Lawyers, Washington, DC Amicus Curiae (in support of Defendant - Appellant)

Norman Mueller National Association of Criminal Defense Lawyers, Washington, DC Amicus Curiae (in support of Defendant - Appellant)

Jon M. Sands Federal Public Defender, District of Arizona, Phoenix, AZ Amicus Curiae (in support of Defendant - Appellant)

Daniel L. Kaplan Assistant Federal Public Defender, District of Arizona, Phoenix, AZ Amicus Curiae (in support of Defendant - Appellant)

The case involves Hohn's conviction for drug trafficking and firearms offenses. While awaiting trial, the government improperly obtained a recorded attorney-client call between Hohn and his newly appointed attorney, which raised constitutional concerns. Hohn filed a habeas petition under § 2255, arguing that the government's action violated his Sixth Amendment right to confidential communication with his attorney. The district court denied his petition, concluding that Hohn had waived his attorney-client privilege by not following the procedure to privatize the call. The Tenth Circuit en banc panel ultimately affirmed the district court's decision, ruling that a Sixth Amendment violation in such cases requires a showing of prejudice, overturning the prior structural error rule from Shillinger v. Haworth.

This circuit split revolves around whether a defendant must demonstrate prejudice in cases where government intrusion into the attorney-client relationship occurs.

Positions of the Circuits:

• Position supporting the prejudice requirement:

  • A majority of circuits, including the D.C., 6th, 9th, 11th, 8th, 4th, 7th, 2nd, and 1st Circuits, consistently hold that to prevail on a Sixth Amendment claim concerning government intrusion into the attorney-client relationship, a defendant must show prejudice.

  • These circuits require that the defendant must prove that the intercepted communications were used against them in the underlying case to establish that the intrusion prejudiced the defense.

  • Prejudice must be shown by demonstrating that the intercepted communications were used to the defendant’s detriment during trial (e.g., used as evidence, affecting defense strategy, or influencing the outcome).

  • These circuits reject the notion of structural error without the need for showing prejudice, and they emphasize the necessity of showing harm caused by the intrusion.

• Position rejecting structural error and emphasizing prejudice:

  • The 9th Circuit and 8th Circuit emphasized that harm must be connected to the use of intercepted information at trial (i.e., the information must be used in a way that undermines the defendant’s defense).

  • The 7th Circuit specifically found no violation of the Sixth Amendment without a showing of prejudice, even when the government gained access to privileged communications.

Case #3 Firexo, Inc. v. Firexo Group Limited (CA6)

Decision for Appellant

Attorneys:

Paul Belazis MALONE, AULT & FARELL Appellant

Jason J. Blake CALFEE, HALTER & GRISWOLD, LLP Appellee

John F. Fisher CALFEE, HALTER & GRISWOLD, LLP Appellee

This case involves an American company suing a British fire-extinguisher manufacturer for breach of contract and misrepresentation in Ohio state court. The manufacturer sought to dismiss the case based on a forum-selection clause in a joint venture agreement that designated England or Wales for dispute resolution, even though the plaintiff was not a signatory to the agreement. The court reversed the lower court’s decision, holding that federal courts must apply the Erie doctrine to determine the applicability of the forum-selection clause, using the choice of law dictated by the contract. Under English law, the clause did not apply to the plaintiff, and the case was remanded.

The circuit split revolves around the enforceability of forum-selection clauses against non-signatories, specifically whether a court should apply a "closely related" doctrine or use other traditional doctrines to bind non-signatories to a contract.

Positions of the Circuits on the Split (Mainly):

1. Sixth Circuit:

   • The Sixth Circuit has not formally adopted the "closely related" doctrine. The court has referred to it but did not make it a binding rule in the Baker case. The Sixth Circuit's approach typically distinguishes between the applicability and enforceability of forum-selection clauses, applying an Erie analysis to determine the law governing whether the clause applies to a non-signatory.

2. Fifth Circuit:

   • The Fifth Circuit recognizes various traditional doctrines such as agency, estoppel, and third-party beneficiary to enforce contracts against non-signatories. It does not endorse the "closely related" doctrine as a stand-alone legal principle but includes it as a general umbrella term covering these established doctrines.

3. Seventh Circuit:

   • The Seventh Circuit has a unique view, advocating for a simpler approach by determining the validity of a forum-selection clause based solely on the law of the jurisdiction whose law governs the underlying contract. It does not apply multiple bodies of law to the same case, focusing on the law of the contract's governing jurisdiction.

Case #4 Ratha v. Rubicon Resources, LLC (CA9)

Decision for Appellee

Attorneys:

Agnieszka M. Fryszman Cohen Milstein Sellers & Toll PLLC Plaintiffs-Appellants

Nicholas J. Jacques Cohen Milstein Sellers & Toll PLLC Plaintiffs-Appellants

Madeleine Gates Cohen Milstein Sellers & Toll PLLC Plaintiffs-Appellants

Emily Ray Cohen Milstein Sellers & Toll PLLC Plaintiffs-Appellants

Dan Stormer Hadsell Stormer Renick & Dai LLP Plaintiffs-Appellants

Catherine Sweetser UCLA Law Clinics Plaintiffs-Appellants

Paul Hoffman Schonbrun Seplow Harris Hoffman & Zeldes LLP Plaintiffs-Appellants

John C. Washington Schonbrun Seplow Harris Hoffman & Zeldes LLP Plaintiffs-Appellants

Barbara E. Taylor Sheppard Mullin Richter & Hampton LLP Defendant-Appellee

Bryan D. Daly Sheppard Mullin Richter & Hampton LLP Defendant-Appellee

Charles L. Kreindler Sheppard Mullin Richter & Hampton LLP Defendant-Appellee

Melissa K. Eaves Sheppard Mullin Richter & Hampton LLP Defendant-Appellee

Margaret Lee Human Trafficking Legal Center Amici Curiae (Members of Congress)

Aaron Halegua Aaron Halegua PLLC Amici Curiae (Members of Congress)

John Burton The Law Offices of John Burton Amici Curiae (Human and Workers' Rights Organizations and U.S. Shrimp Producers)

Allison Gill Global Labor Justice – International Labor Rights Forum Amici Curiae (Human and Workers' Rights Organizations and U.S. Shrimp Producers)

Johanna Lee Global Labor Justice – International Labor Rights Forum Amici Curiae (Human and Workers' Rights Organizations and U.S. Shrimp Producers)

Avery Kelly Corporate Accountability Lab Amici Curiae (Human and Workers' Rights Organizations and U.S. Shrimp Producers)

Alicia Brudney Corporate Accountability Lab Amici Curiae (Human and Workers' Rights Organizations and U.S. Shrimp Producers)

Julia Romano King & Spalding LLP Amicus Curiae (Professor David Abramowitz)

Zoe M. Beiner King & Spalding LLP Amicus Curiae (Professor David Abramowitz)

Anne M. Voigts King & Spalding LLP Amicus Curiae (Professor David Abramowitz)

In this case, Cambodian citizens brought a lawsuit under the Trafficking Victims Protection Reauthorization Act (TVPRA) against Thai corporations and a U.S. limited liability partnership (LLP) for damages, alleging forced labor at a seafood processing factory in Thailand. The district court granted summary judgment to the defendants, and the Ninth Circuit affirmed. After the enactment of the Abolish Trafficking Reauthorization Act (ATRA), which expanded civil liability to those attempting or conspiring to benefit from trafficking, the plaintiffs sought to reopen the judgment. The Ninth Circuit upheld the denial, ruling that the ATRA did not apply retroactively as it imposed civil penalties on a new class of defendants and was not a mere clarification of the law.

The circuit split regarding § 1595 of the Trafficking Victims Protection Reauthorization Act (TVPRA) revolves around whether civil liability extends to individuals who merely attempt or conspire to benefit from a human trafficking venture or whether it requires actual participation or benefit from the trafficking activity itself.

Positions of the circuits:

1. Ninth Circuit - Narrow Interpretation

The Ninth Circuit, in Ratha I, held that § 1595 does not extend liability to those who attempt or conspire to benefit from a trafficking venture. This was a narrow interpretation of the statute, focusing only on individuals who actually benefit from the trafficking activity. The court interpreted the statute strictly and emphasized that Congress had not explicitly included attempts or conspiracies in the text of the law. Thus, only those who directly benefit from trafficking could be held liable.

2. First Circuit - Broad Interpretation

The First Circuit adopted a broader interpretation of § 1595, agreeing that individuals who attempt or conspire to benefit from a trafficking venture can indeed be held civilly liable. The First Circuit emphasized that the TVPRA is meant to be a comprehensive statute aimed at combating human trafficking, and therefore, its provisions should be interpreted to reach all those who engage with trafficking ventures, not just those who benefit directly.

3. Sixth Circuit - Broad Interpretation

The Sixth Circuit also broadened the scope of § 1595, allowing for civil liability for individuals who attempt or conspire to benefit from trafficking ventures. Similar to the First Circuit, the Sixth Circuit emphasized that the statute’s purpose was to provide comprehensive remedies for trafficking victims. Allowing only actual beneficiaries of trafficking ventures would undermine the law's broader protective intent.

Case #5 United States v. Page (CA7)

Decision for Government

Attorneys:

Attorney Firm Side Represented

Jonathan H. Koenig Office of the United States Attorney Plaintiff-Appellee

Rebecca Taibleson Office of the United States Attorney Plaintiff-Appellee

Gail J. Hoffman Office of the United States Attorney Plaintiff-Appellee

Vanessa K. Eisenmann Biskupic & Jacobs, S.C. Defendant-Appellant

Justin J. Dreikosen Biskupic & Jacobs, S.C. Defendant-Appellant

Michelle L. Jacobs Biskupic & Jacobs, S.C. Defendant-Appellant

In United States v. Page, the Court of Appeals reversed and remanded the defendant's conviction for attempted heroin distribution and drug conspiracy. The Court ruled that evidence of repeated distribution-quantity transactions was sufficient to sustain a drug conspiracy conviction, overruling prior cases, and found no need for a buyer-seller jury instruction, as the evidence of conspiracy was strong. The Court emphasized the rigorous plain error standard, clarifying that an error must be obvious and undisputable to warrant reversal.

The split in this case revolves around whether a conviction for aggravated assault could be based on reckless conduct, a question that was unresolved in Florida state law at the time of Anderson's 2001 conviction. While some Florida courts had upheld convictions based on reckless conduct, the majority in this case argues that a circuit split precludes plain error, while the dissent asserts that the plain error standard should apply because the law at the time was clear under Florida’s prior case law. The disagreement highlights a broader tension over how circuit splits and state law interpretations should influence federal legal decisions.

Positions of the circuits:

1. Seventh Circuit Position (Anderson):

• The Seventh Circuit reviewed the district court’s decision on plain error and concluded that the Florida aggravated assault statute, at the time of Anderson's conviction, was ambiguous in terms of whether it covered reckless conduct.

• The court pointed to Florida appellate decisions showing a split and determined that the Florida Supreme Court’s decision in Somers (2022) did not apply retroactively. The Seventh Circuit applied a "reasonable probability" test and ruled that Anderson’s conviction did not qualify as an ACCA predicate.

• Despite this conclusion, the court did not find plain error because the ambiguity of Florida law meant the error was subject to reasonable dispute. The court also discussed a split with the Eleventh Circuit, which had ruled that Somers should apply retroactively.

2. Eleventh Circuit Position:

• The Eleventh Circuit, in a 2023 decision, found that Somers (2022), which held that aggravated assault could not be based on reckless conduct, should be applied retroactively. This ruling contributed to the disagreement between the Seventh and Eleventh Circuits over the retroactive application of state law.

3. Relevance of Florida Supreme Court Position:

• The Florida Supreme Court’s decision in Somers (2022) clarified that aggravated assault could not be based on reckless conduct. However, this ruling was seen as prospective, not retroactive, by the Seventh Circuit, creating a divergence in interpretation of Florida’s law in different federal circuits.

Case #6 Jama v. State Farm (CA9)

Decision for Appellants

Attorneys:

Scott P. Nealey Law Office of Scott P. Nealey Plaintiffs-Appellants

Mark A. Trivett Badgley Mullins Turner PLLC Plaintiffs-Appellants

Daniel R. Whitmore Law Office of Daniel Whitmore Plaintiffs-Appellants

Stephen M. Hansen Law Offices of Stephen M. Hansen PS Plaintiffs-Appellants

Bradley J. Hamburger Gibson Dunn & Crutcher LLP Defendants-Appellees

Daniel R. Adler Gibson Dunn & Crutcher LLP Defendants-Appellees

Matt A. Getz Gibson Dunn & Crutcher LLP Defendants-Appellees

Kristin A. Linsley Gibson Dunn & Crutcher LLP Defendants-Appellees

Peter W. Herzog III Wheeler Trigg O'Donnell LLP Defendants-Appellees

Eric L. Robertson Wheeler Trigg O'Donnell LLP Defendants-Appellees

Daniel N. Nightingale Yetter Coleman LLP Defendants-Appellees

The case involves insured individuals who filed a class action under Washington law, claiming that their insurer failed to pay the actual cash value for their totaled cars after accidents. The Court of Appeals reversed the district court's decertification of the class and ruled that the insureds' claim of underpayment constituted a sufficient injury to provide standing, remanding the case for further proceedings.

The circuit split in this case concerns the determination of class certification in cases involving alleged violations of insurance regulations related to the valuation of totaled vehicles. Specifically, the issue centers around whether a class can be certified when the plaintiffs' injuries require individualized determinations, as opposed to being amenable to a class-wide resolution.

Positions of the circuits:

1. Ninth Circuit (Lara decision):

• The Ninth Circuit ruled that to show liability for breach of contract or unfair trade practices, plaintiffs must demonstrate injury, which requires an individualized determination for each plaintiff. Even if the insurance company applied a condition adjustment, if the plaintiff received at least the actual cash value of the car, they were not harmed. This individualized inquiry precludes class certification. The court rejected the argument that an unlawful condition adjustment could establish harm without individual injury determinations.

2. Fifth Circuit (Sampson decision):

• The Fifth Circuit followed a similar analysis to the Ninth Circuit's Lara ruling, emphasizing that showing injury for class certification requires individualized determinations, even if the insurance method used was deemed unlawful. The court distinguished between the selection of a damages model and the determination of liability for injuries. The Fifth Circuit reaffirmed that a damages model may be imperfect, but liability and injury must be shown before moving to damages, consistent with the Lara decision. In Sampson, the plaintiffs argued that the insurer's adjustment was unlawful, but the Fifth Circuit still found that liability could not be determined without an individualized inquiry into the actual injury each plaintiff suffered.

Case #7 United States v. McIntosh (CA3)

Decision for Government

Attorneys:

Janet M. Bateman, Office of the Federal Public Defender, for Appellant

Mary K. Healy, Office of the Federal Public Defender, for Appellant

Jesse S. Wenger, Office of the United States Attorney, for Appellee

This case involves a defendant who pled guilty to theft of firearms and being a felon in possession of a firearm after stealing firearms during a burglary. The defendant appealed his sentence, challenging the application of sentencing enhancements for crimes involving a semiautomatic firearm capable of accepting a large capacity magazine and for possessing a firearm in connection with another felony offense. The Court of Appeals upheld the District Court's application of these enhancements, ruling that the terms "large capacity magazine" and "another felony offense" in the Sentencing Guidelines were ambiguous. The court deferred to the U.S. Sentencing Commission's reasonable interpretations of these terms, affirming the sentence.

The circuit split revolves around the interpretation of the term "another felony offense" in the sentencing guideline § 2K2.1(b)(6)(B). The key issue is whether the phrase requires a temporal or conduct-based distinction between the offense of conviction and the additional felony offense justifying a sentencing enhancement.

Positions of the circuits:

• Third, Sixth, and Seventh Circuits: The term "another felony offense" requires a distinction in time or conduct between the convicted offense and the additional offense. This view was rooted in the Blockburger test, which assesses whether two crimes are distinct based on their elements.

• Fourth, Fifth, and Eighth Circuits: These circuits hold that "another felony offense" includes a separate felony offense as long as it involves distinct elements, even if the crimes occurred together or during the same course of conduct.

• The Commission's interpretation in Note 14(B) was found to align with the Blockburger test, treating "another felony offense" as an offense requiring distinct elements from the original conviction, a stance which is consistent with the plain language of the guideline. The majority of circuits now support this interpretation, particularly after the introduction of Note 14.

Case #8 United States v. Orona (CA7)

Decision for Government

Attorneys:

Nathaniel Whalen, Office of the United States Attorney, for Plaintiff-Appellee.

Johanna M. Christiansen, Office of the Federal Public Defender, for Defendant-Appellant

Thomas W. Patton, Office of the Federal Public Defender, for Defendant-Appellant.

This case involves the defendant's objection to the government's refusal to request an additional one-point reduction to his base offense level for acceptance of responsibility, beyond the two-point reduction already applied. The Court of Appeals upheld the district court's decision, ruling that the government's discretion in requesting the reduction was not limited to concerns about preserving trial resources, and that its refusal to file for the additional reduction was a permissible exercise of its discretion.

This circuit split revolves around the scope of the government's discretion to withhold a motion for a third-level reduction in sentencing under § 3E1.1(b) of the U.S. Sentencing Guidelines. Specifically, the issue concerns whether the government can withhold the motion based on a defendant's objections to sentencing enhancements or a refusal to waive their appellate rights.

Positions of the Circuits:

1. Seventh Circuit (Deberry, Nurek, and Sainz-Preciado):

   • Initially, the Seventh Circuit interpreted § 3E1.1(b) broadly, allowing the government to withhold the motion based on a defendant's objection to sentencing enhancements or refusal to waive appellate rights.

   • The court reasoned that these objections imposed a burden on the government and court system, justifying the withholding of the motion. The decision in Nurek emphasized that the government could withhold the motion for any legitimate governmental purpose, as long as the decision did not violate constitutional rights.

2. Fourth Circuit:

   • In United States v. Divens, the Fourth Circuit rejected the approach taken by the Seventh Circuit, holding that the government cannot withhold the § 3E1.1(b) motion simply because the defendant refused to waive their appellate rights. The Fourth Circuit emphasized that § 3E1.1(b) focuses on trial resources, not appellate ones.

3. Second Circuit:

   • The Second Circuit followed the rationale in Divens and held that the government could not withhold the motion based on a defendant’s good-faith objection to factual assertions in the presentence report (PSR). It argued that the efficiency consideration in § 3E1.1(b) refers only to trial resources, not to the resources involved in sentencing hearings.

4. Seventh Circuit’s Response:

   • Despite the growing split, the Seventh Circuit reaffirmed its earlier position in Davis (2013) and declined to change course. It held that the government’s discretion under § 3E1.1(b) was broad enough to allow withholding the motion for reasons like refusal to waive appellate rights. The court noted that it would not overrule circuit precedent unless there was a compelling reason.

Case #9 Rajaram v. Meta Platforms, Inc. (CA9)

Decision for Appellant

Attorneys:

Daniel L. Low Kotchen & Low LLP Plaintiff-Appellant

Daniel Kotchen Kotchen & Low LLP Plaintiff-Appellant

Lauren R. Goldman Gibson Dunn & Crutcher LLP Defendant-Appellee

Gabrielle Levin Gibson Dunn & Crutcher LLP Defendant-Appellee

Emily Black Gibson Dunn & Crutcher LLP Defendant-Appellee

Kelley Pettus Gibson Dunn & Crutcher LLP Defendant-Appellee

Michele L. Maryott Gibson Dunn & Crutcher LLP Defendant-Appellee

Daniel R. Adler Gibson Dunn & Crutcher LLP Defendant-Appellee

This case addresses whether 42 U.S.C. § 1981 prohibits discrimination in hiring based on U.S. citizenship. The court reversed the district court's decision, concluding that § 1981 does indeed protect U.S. citizens from discrimination based on citizenship, allowing the plaintiff's claim against Meta Platforms for hiring discrimination to proceed.

The circuit split in this case arises from differing interpretations of whether Section 1981 protects citizens from discrimination based on citizenship status. The majority's interpretation, which holds that the statute applies to both citizens and noncitizens, is at odds with the Fifth Circuit's view.

Positions of the Circuits:

1. Ninth Circuit Majority

• The opinion argues that Section 1981 protects both citizens and noncitizens from discrimination. It relies on a textual analysis of Section 1981, asserting that the statute guarantees equal rights "as is enjoyed by white citizens." The majority disagrees with the dissent's interpretation that the text does not clearly support the protection of citizens from discrimination based on citizenship status.

2. Fifth Circuit:

• The circuit interprets Section 1981 as not protecting individuals from discrimination based on citizenship status. It focuses on a more restrained reading of the statute, arguing that citizenship is distinct from race and thus is not covered under Section 1981. The Fifth Circuit has a narrower view of Section 1981's scope, limiting its protections to discrimination based on race or other enumerated categories, rather than extending it to citizenship discrimination.

Case #10 Tekoh v. County of Los Angeles (CA9)

Description in dissent from en banc denial

Attorneys (from panel appeal opinion):

Paul L. Hoffman Schonbrun Seplow Harris Hoffman & Zeldes LLP Plaintiff-Appellant

John C. Washington Schonbrun Seplow Harris Hoffman & Zeldes LLP Plaintiff-Appellant

John Burton The Law Offices of John Burton Plaintiff-Appellant

Matt Sahak The Law Offices of John Burton Plaintiff-Appellant

Antonio K. Kizzie Snell & Willmer LLP Defendants-Appellees

Rickey Ivie Ivie McNeill & Wyatt Defendants-Appellees

Melinda Cantrall Hurrell Cantrall LLP Defendants-Appellees

This case involves a plaintiff who, after the Supreme Court's ruling in Vega v. Tekoh that Miranda violations do not automatically violate the Fifth Amendment or provide grounds for a § 1983 lawsuit, seeks a new trial on his Fifth Amendment claim that his confession was coerced. The Ninth Circuit reversed the district court’s judgment and remanded the case for a new trial, ruling that the district court improperly excluded expert testimony on coerced confessions, which was deemed relevant to the plaintiff's claim. A dissenting judge argued that the exclusion of the expert testimony was not an abuse of discretion, as it did not meet the necessary standard for expert testimony on credibility.

The circuit split in this case revolves around the admissibility of expert testimony regarding the coercive effect of police interrogation techniques in civil trials, specifically in cases alleging coerced confessions under Section 1983.

Positions of the Circuits:

• Ninth Circuit (Panel Majority)

  • Requires the district court to admit expert testimony about the potential coercive effects of common interrogation tactics, such as minimization tactics (blame-reducing excuses) and false evidence ploys (bluffing about evidence). The panel majority concludes that expert testimony is necessary for the jury to understand why these common interrogation techniques could be coercive. The decision creates the possibility of a per se rule that expert testimony should be admitted in all coerced confession cases. This decision is seen as a departure from the Ninth Circuit's usual deference to district judges' discretion in evidentiary matters, and it challenges the precedent on excluding expert testimony meant to bolster credibility.

• Tenth Circuit (Benally Case)

  • In United States v. Benally, the Tenth Circuit upheld the exclusion of expert testimony about false confessions, even though the expert testimony did not specifically address the defendant's case. The Tenth Circuit ruled that expert testimony regarding coercive interrogation techniques encroaches on the jury’s role in assessing credibility and is not admissible under Rule 702. The Benally decision emphasizes that expert testimony cannot be used to offer a case-specific opinion about the truth or falsity of a confession. The Tenth Circuit’s position contrasts with the Ninth Circuit’s panel majority decision by stressing that such expert testimony is prejudicial and unduly influences the jury.

Takeaways

Circuit splits play a crucial role in shaping the landscape of federal law, highlighting important differences in how courts interpret and apply legal principles. These disagreements create inconsistencies in legal outcomes, leaving litigants uncertain about their rights depending on where they live. From issues like the First Step Act's nonretroactive changes to mandatory minimum sentences to the scope of civil liability under the Trafficking Victims Protection Reauthorization Act, circuit splits reflect ongoing debates about how to apply key legal doctrines. These splits not only spotlight areas where legislative action may be needed, but they also create opportunities for the U.S. Supreme Court to provide clarity and ensure a more uniform legal framework. By drawing attention to these conflicts, we see the dynamic interaction between the judiciary and legislature in shaping the development of federal law.

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