United States v. Devin Millender

── United States v. Devin Millender ── Court: Court of Appeals for the Ninth Circuit Date: April 27, 2026 Category: General UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 27 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 22-50166 Plaintiff-Appellee, D.C. No. 5:21-cr-00092-FMO-1 v. Central District of California, Riverside DEVIN JAMES MILLENDER, ORDER Defendant-Appellant. Before: FRIEDLAND and LEE, Circuit Judges.* The Memorandum Disposition filed on March 4, 2026, is amended, and the amended Memorandum Disposition is filed concurrently with this order. With this order, the panel unanimously votes to deny the petition for panel rehearing. The petition for rehearing is DENIED. No further petition for rehearing may be filed. * Judge Ikuta, who died on December 7, 2025, was originally a member of the panel in this case. In accordance with General Order 3.2(h), this order is issued by the remaining panel members as a quorum pursuant to 28 U.S.C. § 46(d).  NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 27 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-50166 Plaintiff-Appellee, D.C. No. 5:21-cr-00092-FMO-1 v. AMENDED DEVIN JAMES MILLENDER, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding Argued and Submitted September 9, 2024 Submission Vacated November 27, 2024 Resubmitted March 4, 2026 Pasadena, California Before: FRIEDLAND and LEE, Circuit Judges.** After pleading guilty to violating 18 U.S.C. § 922(g), Devin James Millender received a mandatory 15-year sentence pursuant to the Armed Career * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** Judge Ikuta, who died on December 7, 2025, was originally a member of the panel in this case. In accordance with General Order 3.2(h), this memorandum disposition is issued by the remaining panel members as a quorum pursuant to 28 U.S.C. § 46(d). Criminal Act (“the ACCA”). 18 U.S.C. § 924(e)(1). The district court found that Millender had three prior felony convictions under California Penal Code Sections 245(a)(4), 273.5(a), and 273.5(f)(1) and held that those convictions were “violent felon[ies]” under the ACCA. See id. (stating that a person who “has three previous convictions . . . for a violent felony . . . shall be fined under this title and imprisoned not less than fifteen years”). Millender argues that his prior convictions are not violent felonies. We vacate Millender’s sentence and remand for further proceedings. 1. Millender’s assault conviction under California Penal Code Section 245(a)(4) is not a violent felony within the meaning of 18 U.S.C. § 924(e)(1). See United States v. Gomez, 165 F.4th 1199, 1203 (9th Cir. 2026) (en banc