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. 

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

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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.

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

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