Case o' The Week: Ninth Mulls Geometric Skeptics - Rodriguez Gamboa and Lorenzo Challenges to Cal H&S Section 11378

  Feds attack California’s efforts to criminalize meth.

United States v. Rodriguez-Gamboa, 2019 WL 7206435 (9th Cir. Dec. 27, 2019), decision available here.

Players: Decision by Judge Hurwitz, joined by Judge Wardlaw and DJ Bataillon. 

  Righteous fight by CD Cal AFPD David Menninger.  

Facts: Rodriguez-Gamboa, a Mexican national, was removed after sustaining what she was told was an agg felony: possession of meth for sale, in violation of California Health & Safety Code § 11378. Id. at *2.

 She reentered the U.S. without inspection, was charged with illegal reentry in violation of 8 USC § 1326, and pleaded guilty. Id.

  The Ninth then held in “Lorenzo I” that § 11378 does not qualify as a “controlled substance offense” under the immigration statute, because the California statute applied to both “optical and geometric isomers” of meth. Id. See generally Lorenzo Blog entry here. 

  Rodriguez withdrew her plea. Government experts then declared that geometric isomers of meth do not, in fact, exist. Id. at *3. Relying on Lorenzo I, the district court dismissed the Information: the government appealed. Along the way, the Ninth replaced Lorenzo I with Lorenzo II, a mem dispo that arrived at the same result at Lorenzo I. Id. at *1.   

Issue(s): “We are asked to decide whether the definition of methamphetamine under California law is broader than the definition under corresponding federal law. The issue is pivotal in this case because . . . Rodriguez-Gamboa did not commit illegal reentry under 8 U.S.C. § 1326 if the California law is categorically broader than the federal one.” Id. at *1.

Held: “The government’s argument rests entirely on its factual assertion that the geometric isomer of methamphetamine does not exist. But, the district court never made such a finding, and we cannot do so for the first time on appeal. . . . . Because resolution of the factual issue of whether geometric isomers of methamphetamine exist has the potential to inform our disposition of this appeal and future cases, we remand to the district court for the limited purpose of resolving that evidentiary issue in the first instance. The panel will retain jurisdiction over the appeal and address its merits after the district court reports its factual findings.” Id. at *4. (internal citation and footnote omitted).

Of Note: Rodriguez-Gamboa is fascinating, because it highlights one of many tensions in the categorical analysis. The government argues that there is no “realistic probability” that Rodriguez was convicted of a broader “geometric isomer” offense in California, because such geometric isomers do not exist.

  Rodriguez shrugs, and points to the literal text of the California statute – a state law indisputably broader than the federal offense, because it criminalizes isomers not covered by the feds. Id. at *4.

  The Ninth resolves this tension by, well, putting if off for another day. After the district court does some fact-finding on geometric isomers, the same Ninth panel will then tackle the question. Until that dust settles, continue to preserve Lorenzo challenges to § 11378 priors.   

How to Use: A threshold appellate issue was whether Rodriguez should have been allowed to withdraw her guilty plea. Judge Hurwitz makes short work of that question. Fed. R. Crim. Proc. 11(d)(2)(B) permits a district court to allow a defendant to withdraw a guilty plea. A defendant has to show a “fair and just reason” for requesting the withdrawal. Id. at *3. “A change in the law can justify withdrawal of a plea,” id., -- and Lorenzo I fit the bill. Remember Rodriguez-Gamboa when changes in law makes a plea agreement less attractive.

                                               

For Further Reading: Do new Trump appointees await the Ninth in the New Year? 2020 will begin with ten Trump jurists on the Ninth (as Judge VanDyke takes Senior Judge Bybee’s seat). See Seniority List here.

 A trio of active Bush appointees remain in the Circuit: Judges Callahan, Milan Smith, and Ikuta. See Federal Bar Association summary here. 

Image of vintage USAF Poster from https://imgur.com/r/vintageads/liQ7BBN

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

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Case o' The Week: Defense Loses the Match Game - Verduzco-Rangel, Cal H&S 11378, and Agg Felonies

 What if you think you’re selling meth, but the drug is really Chorionic Gonadotropin?

  No worries, from the Feds (unless, of course, you’re an alien).

United States v. Verduzco-Rangel, 2018 WL 1220747(9th Cir. Mar. 9, 2018), decision available here.

Players: Decision by visiting Sr. D.J. Rakoff, joined by Judges M. Smith and Friedland.

Facts: Verduzo-Rangel was convicted of 8 USC § 1326. Id. at *1. The agg felony was a prior conviction for possession for sale of meth, in violation of Cal. Health & Safety Code § 11378. Id.

  Verduzo-Rangel’s underlying indictment and plea agreement established that he had been previously convicted of trafficking meth (a controlled substance under both state and federal law). Id. at *2.

Issue(s): “Verduzco now argues that his conviction was not in fact an aggravated felony. . . .” Id. at *1.

  “For purposes of this appeal, the Government concedes the first two prongs [of the collateral attack requirements of § 1326(d)], so the only question is whether the removal was fundamentally unfair.” Id.

  “Verduzco . . . argues that his California conviction is not categorically an aggravated felony because section 11378 remains broader than federal law as to defendants’ beliefs about the kind of substance in which they were trafficking. Under federal law, a person actually selling cocaine who thought he was selling baking soda does not possess the required mens rea to be guilty of drug trafficking . . . . Under section 11378, defendants can be found guilty even if they were mistaken about what specific substance was being trafficked, as long as the substance in which they intended to traffic is in fact controlled under California law . . . .  This means that a person who believed she was trafficking in chorionic gonadotropin but was in fact trafficking in methamphetamine would violate California law but not federal law. Verduzco argues that section 11378 is thus not categorically a drug trafficking crime under the second route laid out in Rendon.” Id. at *2 (internal quotations and citations omitted).

Held: “Rather than contesting this point, the Government argues that it is irrelevant because a conviction under section 11378 is an aggravated felony under the first route, at least where, as here, the defendant was trafficking a substance (methamphetamine) that is also controlled by federal law. We agree, and thus need not consider whether Verduzco’s conviction would also qualify as an aggravated felony under the second route identified in Rendon.” Id. at *3 (emphasis added).

Of Note: The core issue in Verduzco is a fight over Rendon v. Mukasey, 520 F.3d 967, 974 (9th Cir. 2008).

  Verduzco argued that the first route of Rendon (that is, a state offense is an agg felony if it contains a trafficking element) should include the mens rea element found in federal law: that a defendant has to intend to traffic a substance controlled by federal law. Id. at *3. It is an interesting argument, and Judge Rakoff labors to reject it (and to distinguish the Ninth’s recent decision in Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017)). Id. at *3 & n.3.

  The result? In the Ninth Circuit, a state drug trafficking offense can be a “categorical match” for the “generic” federal drug trafficking requirement, even if the state statute prohibits a drug that isn’t controlled by the feds. Id. at *3.

How to Use: Despite the rather confusing holding of Verduzco, note an important limitation. In this case, the record established that the defendant had actually been convicted of trafficking meth. Judge Rakoff expressly includes this limitation in the holding: “where the record of conviction establishes that the substance involved is federally controlled.” Id. at *4. 

  In a case where it is unclear what substance was involved in a § 11378 prior, there might remain some play in an agg felony challenge.

                                               

For Further Reading: Be honest - do you ever grapple with ambiguous language in a Guideline, sigh, and wonder “why the hell did [the Sentencing Commission] do it this way? It’s ridiculous!”

  You’re in excellent company -- Judges Berzon and Callahan feel precisely the same way (the above is a quote!)

The Nickles III Ninth Circuit panel

  For a remarkably candid insight into the minds of frustrated appellate judges drowning in categorical goo (and a very important Cal. Penal Code § 211 discussion), see the recent Nickles, III argument, available here, at 10:16.

Image of chorionic gonadotropin from https://www.testosterone.me/hcg-injections

Image of Judges Wallace, Berzon, and Callahan, and of AFPD Hanni Fakhoury, from the Nickles III argument at https://www.youtube.com/watch?v=EbutugiR21o&t=0s&index=51&list=UUeIMdiBTNTpeA84wmSRPDPg

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

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Case o' The Week: Welcome Clarity on Vagueness - Dimaya and Extension of Johnson to the Immigration (Civil) Context

Our Johnson Messiah: Due Process Dimaya.

  Dimaya v. Lynch, 2015 WL 6123546 (9th Cir. Oct. 19, 2015), decision available here.

Players:  Decision by Judge Reinhardt, joined by Judge Wardlaw. Dissent by Judge Callahan. Big win for Prof. Andrew Knapp, Southwestern Law School, with amicus help from Sejal Zota of Nat’ Immigration Project of Nat’ Lawyers Guild, for amici Immigrant Legal Resource Center, Immigrant Defense Project.

Facts: Dimaya was admitted to the US as an LPR. Id. He was twice convicted

Hon. Judge Stephen Reinhardt

of Cal. Penal Code Sec. 459, first degree burglary. Id. 

Under the Immigration and Nationality Act (“INA”), a conviction for an “agg felony” makes a petitioner like Dimaya subject to removal. Id. An Immigration Judge (“IJ”) held that Cal burgs are “crimes of violence,” and thus agg felonies, under the INA’s cross-reference to 18 USC § 16(b). Id. The IJ found Dimaya removable and ineligible for relief. Id. 

That decision was upheld by the Board of Immigration Appeals.

Issue(s): “Petitioner James Garcia Dimaya seeks review of the Board of Immigration Appeals' (BIA) determination that a conviction for burglary under California Penal Code Section 459 is categorically a ‘crime of violence’ as defined by 8 U.S.C. § 1101(a) (43)(F), a determination which rendered petitioner removable for having been convicted of an aggravated felony. During the pendency of petitioner's appeal, the United States Supreme Court decided Johnson . . . 135 S.Ct. 2551 . . . (2015), which held that the Armed Career Criminal Act's (‘ACCA’) so-called residual clause’ definition of a “violent felony” is unconstitutionally vague. In this case, we consider whether language similar to ACCA’s residual clause that is incorporated into § 1101(a)(43)(F)’s definition of a crime of violence is also void for vagueness.” Id. at *1.”

Held: “We hold that it suffers from the same indeterminacy as ACCA's residual clause and, accordingly, grant the petition for review.” Id.

Of Note: The most obvious impact of Dimaya is immigration – but this quickly bleeds into “crimigation.” 

Head’s up: crimigation is our job. 

After Padilla, criminal defense counsel have an affirmative obligation to accurately advise their clients on immigration consequences. See generally Rodriguez-Vega blog entry here. After Johnson and Dimaya, are you sure that case is still an agg felony, as you advise your criminal client? 

Read Dimaya, read Rodriguez-Vega, get spooked, then hit the Nat’l Immigrant Justice Center. See CJA Immigration Help Link here.  (Or try to hire immigration counsel– hiring an immigration attorney now on the CJA dime is much cheaper than paying for CJA habeas counsel later).  

How to Use: Dimaya will be the Ninth’s most important decision of the year. 

Here’s the rationale for that bold claim. If Johnson’s Due Process “vagueness” holding applies in a mere civil context (like the INA), id. at *2, the Supreme’s decision surely must apply to all criminal (albeit non-statutory) provisions. Johnson is our new hammer, and with Dimaya the whole world looks like a nail. USSG § 4B1.2(b) (CareerOffender); § 2K2.1 (felon in possession); § 2L1.2 (illegal reentry); USSG §7B1.1(1)(1) (Supervised Release Violations)– all have vulnerable “crime of violence” definitions, and all are now up for grabs.

Throw in due process challenges to statutes like 18 USC § 3142(f)(1)(A) (Bail Reform Act), the Hobbes Act, Section 924(c) offenses, and ACCA, and much welcome mischief awaits.

And don’t forget the thoughtful Dimaya analysis by Judge Reinhardt, specifically equating the ACCA “crime of violence” provision with the Section 16(b) “crime of violence” definition for the due process analysis, id. at *3 - *6 (analysis that cries out for logical extension to other “crime of violence” definitions).

Dimaya is the foundation upon which much good law will soon be built: a Very Big Case.

Prof. Andrew Knapp, Southwestern School of Law

                                               

For Further Reading: Dimaya was held in immigration detention, without bond, for five years. It was only after the Ninth appointed Prof. Knapp as pro bono counsel, and a “dedicated group of idealistic Southwestern law students took over [Dimaya’s] representation, was [Dimaya] finally able to obtain his release on bond.” 

For an article describing the moving human story behind this case, see here.  

Image of the Honorable Judge Stephen Reinhardt from http://manythingsconsidered.com/?p=6088

Image of Professor Andrew Knapp from https://media.licdn.com/mpr/mpr/shrinknp_400_400/p/4/000/15f/35f/1640659.jpg

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

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Case o' The Week: Deja vu all over again, again - Aguilar-Turcios and Taylor approach after Decamps

  Living well is the best revenge.

  Being vindicated by the Supreme Court? A close second. United States v. Aguilar-Turcios, 2014 WL 241868 (9th Cir. Jan. 23, 2014), decision available here.

Players: Decision by Judge Paez, joined by Judges Fletcher and Bybee. Amicus support from (former) San Diego Assistant Federal Defender Steve Hubachek.

Facts: Aguilar-Turcios, a Honduran national and LPR, was court-martialed after downloading child porn while a U.S. Marine. Id. at *1. More specifically, he pleaded guilty to violating a Department of Defense directive that prohibited using a government computer for an “unauthorized purpose.” Id. “Unauthorized purposes” include “uses involving pornography.” Id. He also pleaded guilty to a charge of wrongfully possessing images of “minors engaging in sexually explicit conduct.” Id. Later, the government tried to remove Aguilar-Turcios by alleging that these offenses were “aggravated felonies” because they were conduct involving child pornography. Id. The IJ found that one offense was an agg felony and ordered removal; Aguilar-Turcios appealed. Id. at *2. There followed a series of decisions, tangled up with the developments of the “missing elements” rule and Aguila-Montes de Oca. Id. at *2. The Supreme Court then rejected Aguila, adopted Decamps,  and the case returned to the Ninth. Id. at *3.

Issue(s): Did the Article 92 UCMJ Article 92 conviction qualify as an aggravated felony, after Decamps?

Held: “Aguilar-Turcios’s Article 92 conviction, predicated on a violation of section 2-301(a), is not categorically an aggravated felony.” Id. at *4. Moreover, the statute at issue is “missing this element altogether” [an essential element of visual depiction of a minor engaged in sexual explicit conduct]. Id. at *5. “The modified approach thus has no role to play in this case.” Id. “We have jurisdiction over this case, and we grant the petition for review and remand to the BIA with instructions for the agency to vacate the removal order against the petitioner.” Id.

Of Note: Fantastic! Aguilar-Turcios’ removal order is vacated! Life for this former Marine in the United States is finally secure, after nearly a decade of litigation. Except . . . “[w]hile Aguilar-Turcios’s appeal was pending before this court, and an order was in place staying his removal, the government mistakingly removed Aguilar-Turcios to Honduras.” Id. at *2 & n.6.

How to Use: Decamps is now settled law, but it always helps to have a clear explanation in a home Circuit decision on how that opinion really works. And Judge Paez takes great pains to explain it clearly – noting his original Aguilar-Turcios decision, Judge Bybee’s dissent, then Judge Bybee’s Aguila Montes de Oca en banc decision – and Decamps, rejecting Judge Bybee’s AMdO approach and endorsing Judge Paez’s (and the Ninth’s) limitations on the use of the modified categorical approach. It isn’t quite crowing, but Judge Paez is particularly deliberate while explaining the long battle over this Taylor approach – and which side was the victor. The result is a clean explanation with nice sharp edges on when the modified categorical approach is appropriate – and when it is not.

                                               

For Further Reading: After Moneyball, Nate Silver, and the last Presidential elections, stats are where it’s at. Or  not. In a very thoughtful article, Felix Salmon carefully explains, “Why Quants Don’t Know Everything.” See http://www.wired.com/business/2014/01/quants-dont-know-everything/ Turns out that professional baseball and the stock market learned the hard way that models based solely on statistics aren’t quite the paradises promised by bean-counters. This Wired magazine article is a must read for any employee of any Federal Defender organization, as the Administrative Office of the US Courts starts our short collective voyage towards a Workload Staffing formula by Fiscal Year 2016.

Image of the Honorable Judge Richard Paez from https://mylaw.usc.edu/userfiles/Image/SConnect%2008-09/MootCourt09_mc004.jpg  Image of Statistics t-shirt from http://www.neatoshop.com/product/Statistics-is-the-Art-of-Never-Having-to-Say-Youre-Wrong

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

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