US v. Garcia-Lopez, No. 15-50366 (9-7-18)(Nelson w/N. Smith; Tallman concurring).

The 9th allows a withdrawal from a guilty plea as the change in law as to California robbery not being a COV establishes a fair and just reason. As the panel concluded: “Dimaya  and related Ninth Circuit cases establish that California robbery—the sole charge underlying Garcia- Lopez’s illegal reentry indictment and his removal order—is not a “crime of violence” pursuant to § 16. This fundamental change in the law operates as a “fair and just reason” to allow Garcia-Lopez to withdraw his guilty plea. With respect to Garcia-Lopez’s Motion to Dismiss, we leave that to the district court to consider in the first instance.”

Tallman concurs, arguing that COV jurisprudence is a mess and that Congress needs to step in to establish a workable standard for violent offenses.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/07/15-50366.pdf