Saturday, December 28, 2019

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

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


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