US v. Rodriguez-Gamboa, No. 19-50014 (12-27-19)(Hurwitz w/Wardlaw & Bataillon). This opinion asks a fundamental question: do geometric isomers of methamphetamine exist?  It is more than an existential question. If they do, or can be easily constructed, or are not wholly illusory, then the California meth statute is broader than the federal meth statute; there is no categorical fit; and the defendant’s state conviction is not an agg felony. If it is only a “theoretical” possibility, then the statutes may be one and the same, which carries bad news for the defendant.

This case has an odd posture. The defendant pled guilty; then withdrew her plea when Lorenzo I, 902 F.3d 930 (9^th Cir 2018) came out, which found the state definition broader. That case was then replaced by Lorenzo II, a memo disposition. The memo disposition stated that the govt is not foreclosed in arguing that any difference between the two statutes is illusory. The argument is that both statutes make isomers of meth illegal, which actually exist, while geometric isomers do not. So here we are now.

The panel declined such organic chemistry findings. It remanded to the district court to determine whether geometric isomers are theoretical (Stay tuned to see if Schrödinger’s cat will make a theoretical appearance as a drug-detecting feline).

In other opinion housekeeping, the 9^th held that the district did not abuse its discretion in allowing the defendant to withdraw her plea. The 9^th also vacated the district court’s dismissal of the indictment (for failure to state an offense) in light of the remand.

Kudos to David Menninger, Deputy Federal Public Defender, for his vigorous defense. He has the right chemistry.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/27/19-50014.pdf