Case o' The Week: Won 2-1-1: plea now undone - Garcia-Lopez and Withdrawal of Guilty Pleas

   Delicious double de novo dish, served up by the Ninth.

United States v. Garcia-Lopez, 2018 WL 4262459 (9th Cir. Sept. 7, 2018), decision available here.

The Hon. Judge Dorothy Nelson

Players: Decision by Judge D.W. Nelson, joined by Judges Tallman and N.R. Smith. Concurrence by Judge Tallman.

  Welcome win for CD Cal R&W Attorney David Menninger, C.D. Cal. FPD.

Facts: Garcia-Lopez, an undocumented alien, plead guilty to robbery under California Penal Code § 211. Id. at *2. He was removed, after the § 211 robbery was treated as a “crime of violence” under 18 USC § 16. Id.

  He reentered and was removed again, pursuant to the original order. Id.

   He entered a third time and was charged with illegal reentry. Id. He plead guilty, but later attempted to withdraw his plea.

  That motion was denied; Garcia-Lopez appealed after sentencing. Id. at *2.

Issue(s): “Garcia-Lopez contends the federal indictment filed against him alleging illegal reentry is fundamentally flawed because the removal order on which it was based is invalid. According to the removal order, Garcia-Lopez’s conviction for California robbery was a ‘crime of violence’ pursuant to 18 U.S.C. § 16, and because Garcia-Lopez served at least a year in jail for the offense, it also constituted an “aggravated felony” under 8 U.S.C. § 1101, rendering him deportable . . . . Garcia-Lopez claims for the first time on appeal that California robbery is no longer a ‘crime of violence’ under Dimaya and related Ninth Circuit case law, and that these cases provide a ‘fair and just reason’ to allow him to withdraw his guilty plea.” Id. at *3.

Held: “[O]ur recent decisions and the Supreme Court’s decision in Dimaya firmly establish that California robbery is not a ‘crime of violence’ under § 16(a) or § 16(b).” Id. at *5. “These cases also provide a “fair and just reason” for Garcia-Lopez to withdraw his guilty plea. Fed. R. Crim. P. 11(d)(2)(B).” Id.

Of Note: Garcia-Lopez raised this specific basis for his withdrawal motion for the first time on appeal. Judge D.W. Nelson does a nice job explaining the standard for that scenario, when it is a pure issue of law and where there’s no prejudice to the opposing party. Id. Finding those requirements met, the Ninth mulls both legal questions – whether § 211 is a “crime of violence,” and whether Garcia-Lopez should be allowed to withdraw his plea – under the less-deferential de novo standard. Id. (And holds that Garcia-Lopez would still win under the plain error standard urged by the government). Id. at *5.

  A handy analysis for appellate counsel, when a legal argument wasn’t quite preserved in the district court.

How to Use: Garcia-Lopez is particularly timely, coming hard on the heels of Lorenzo v. Sessions, 2018 WL 4100360 (9th Cir. 2018). Cal H&S Code § 11378 is no longer a “controlled substance offense” for immigration cases (and probably isn’t for federal guideline and Section 851 priors, either). Use Garcia-Lopez’s generous approach to withdrawing a plea based on shifting categorical analysis law, to bolster corrections on live cases (in district court and on appeal) that have Lorenzo § 11378 issues.  

                                               

For Further Reading: In the Lorenzo COTW memo, we argued that § 11378 priors should no longer be considered “controlled substance” offenses under the Guidelines. See Lorenzo blog entry here. 

  A respected jurist (and Sentencing Commissioner) agrees. See United States v. Rose Perez, CR 17-00552-CRB-1 (N.D. Cal. Sept. 6, 2018), Ord., Dkt. #32.

The Hon. Judge Charles R. Breyer

  In Perez, District Judge Charles Breyer carefully explains that Lorenzo controls the question of whether § 11378 is a “controlled substance” offense that triggers Career Offender. 

  As Judge Breyer concludes, “The combination of Lorenzo and Leal-Vega controls this case. As Leal-Vega concluded, categorical approach conclusions in the immigration context provide guideposts in the sentencing context. Id. Thus, Lorenzo’s conclusion that violations of § 11378 are not categorically controlled substances offenses dictates the result here: Perez’s prior § 11378 convictions are not controlled substances offenses for the purposes of determining whether she qualifies as a career offender under the Sentencing Guidelines.” Id. at 4:16-21.

Image of the Honorable Judge Dorothy W. Nelson from https://law.ucla.edu/news-and-events/in-the-news/2017/09/ucla-law-alumnae-take-center-stage/

Image of the Honorable Judge Charles R. Breyer fromhttps://twitter.com/recordertweets/status/702888507115700224

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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