United States v. Garcia-Lopez
| Decision Date | 07 September 2018 |
| Docket Number | No. 15-50366,15-50366 |
| Citation | 903 F.3d 887 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Antonio GARCIA-LOPEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David Menninger, Research and Writing Attorney; Hilary Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.
Eddie A. Jauregui, Assistant United States Attorney; Lawrence S. Middleton, Chief, Criminal Division; United States Attorney’s Office, Los Angeles, California; for Plaintiff-Appellee.
Before: Dorothy W. Nelson, Richard C. Tallman, and N. Randy Smith, Circuit Judges.
Antonio Garcia-Lopez ("Garcia-Lopez") appeals the district court’s denial of his Motion to Withdraw his Guilty Plea ("Motion to Withdraw"). He contends we should reverse because (1) he did not have an interpreter in his native tongue, Zapotecan, at his plea hearing and did not fully understand the proceedings, and (2) the Supreme Court’s decision in Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), and recent case law from this Circuit undermine the basis for his indictment. His second argument provides a plausible ground for dismissal of the indictment and serves as a "fair and just reason" for permitting withdrawal of the plea here. We therefore decline to address his first argument. We vacate the district court’s order and remand with instructions to permit Garcia-Lopez to withdraw his guilty plea.
Garcia-Lopez is a native of Oaxaca, Mexico, and is a member of an indigenous minority group from that area known as the Zapotecs. He grew up speaking Zapotecan at home but learned Spanish for a few years in elementary school. Garcia-Lopez claims that he has "a very limited understanding of Spanish" and that he does "not speak enough ... to be an advocate for [himself]."
Garcia-Lopez entered the United States at San Ysidro, California, in June 2001. He worked for many years in the United States until he was arrested in 2010 for robbery pursuant to California Penal Code § 211 ("California robbery") and battery pursuant to California Penal Code § 242. The battery charge was dismissed due to plea negotiations and Garcia-Lopez pled guilty to the robbery charge with the help of a Spanish interpreter. Garcia-Lopez received 36 months of formal probation and served a year in jail.
The U.S. Immigration and Customs Enforcement ("ICE") then placed him in expedited removal proceedings based on his conviction for an "aggravated felony" pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as further defined in 8 U.S.C § 1101(a)(43)(F) and 18 U.S.C. § 16. It essentially determined that California robbery constituted a "crime of violence" pursuant to § 16, and because Garcia-Lopez served at least a year in jail for the offense, it also constituted an "aggravated felony" under § 1101, rendering him deportable under § 1227. He was deported on April 15, 2011. Garcia-Lopez returned to the United States shortly thereafter and was removed again on April 28, 2011, pursuant to the April 15 order.
Garcia-Lopez entered the United States a third time, and federal authorities found him in Los Angeles County on February 14, 2014. On May 16, 2014, Garcia-Lopez was charged with violating 8 U.S.C. § 1326(a), (b)(2) for allegedly returning to the United States after having been deported in April 2011 and after having been convicted of an "aggravated felony." Garcia-Lopez pled guilty to the single-count indictment, but later sought to withdraw his plea on grounds that he did not have a Zapotecan interpreter at his plea hearing and that his due process rights were violated pursuant to our then-recent decision in United States v. Raya-Vaca , 771 F.3d 1195 (9th Cir. 2014). He also sought to dismiss the indictment based on Raya-Vaca and filed a motion pursuant to § 1326(d).1
After a lengthy hearing, the district court denied Garcia-Lopez’s Motion to Withdraw his Guilty Plea and therefore declined to consider his Motion to Dismiss the Indictment ("Motion to Dismiss"). Based on its review of the record, the district court found Raya-Vaca inapplicable and further found Garcia-Lopez spoke Spanish well enough to understand his plea proceedings.
On August 4, 2015, Garcia-Lopez was sentenced to 30 months of imprisonment and three years of supervised release. Garcia-Lopez is currently on supervised release.
This appeal followed.
"[W]e review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion." United States v. Yamashiro , 788 F.3d 1231, 1236 (9th Cir. 2015) (citation omitted). "A court abuses its discretion when it rests its decision on an inaccurate view of the law ... or on a clearly erroneous finding of fact." United States v. Ensminger , 567 F.3d 587, 590 (9th Cir. 2009) (citations and internal quotation marks omitted).
A defendant may withdraw his guilty plea before sentencing if he can show a "fair and just reason" for requesting the withdrawal. Fed. R. Crim. P. 11(d)(2)(B). The fair and just standard "is generous and must be applied liberally," but a defendant may not withdraw his plea "simply on a lark." Ensminger , 567 F.3d at 590 (citations and internal quotation marks omitted). "Fair and just reasons for withdrawal include ‘inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea.’ " Yamashiro , 788 F.3d at 1237 (citation omitted). "A marked shift in governing law that gives traction to a previously foreclosed or unavailable argument may operate as a fair and just reason to withdraw a guilty plea." Ensminger , 567 F.3d at 592. In such cases, a defendant "need not show that his [new arguments] will be successful on [their] merits." United States v. McTiernan , 546 F.3d 1160, 1168 (9th Cir. 2008). "His burden is [only] to show that proper advice could have at least plausibly motivated a reasonable person in [his] position not to have pled guilty had he known about [the new case law] prior to pleading." Id. (citation and internal quotation marks omitted); see also Ensminger , 567 F.3d at 591–92 (); United States v. Ortega-Ascanio , 376 F.3d 879, 887 (9th Cir. 2004) (same).
Here, Garcia-Lopez claims two alternative grounds for withdrawing his guilty plea: (1) that he did not have a Zapotecan translator at his plea hearing and did not fully understand the proceedings; and (2) California robbery is no longer a "crime of violence" under § 16 pursuant to Dimaya and related Ninth Circuit precedent. Because we find Garcia-Lopez is entitled to withdraw his plea on the second ground, we need not and do not consider his alternative argument that the alleged language barrier is also a "fair and just reason" for permitting withdrawal of the plea. United States v. Garcia , 401 F.3d 1008, 1012 n.3 (9th Cir. 2005).
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 under 8 U.S.C. § 1227. 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.
Before turning to the merits of Garcia-Lopez’s argument, we first address the proper standard of review. Garcia-Lopez did not raise in the court below the argument that California robbery does not constitute a "crime of violence" under § 16. He raised the issue for the first time on appeal and premised his argument on Dimaya v. Lynch , 803 F.3d 1110 (9th Cir. 2015), which we decided while his appeal was pending. The Supreme Court affirmed the Ninth Circuit’s decision in Lynch , Dimaya , 138 S.Ct. at 1223, and we subsequently received supplemental briefing on Dimaya , as well as related case law from this Circuit.
"We generally review arguments not raised before the district court for plain error." United States v. Saavedra-Velazquez , 578 F.3d 1103, 1106 (9th Cir. 2009). "However, we are not limited to this standard of review when we are presented with [1] a question that is purely one of law and [2] where the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court." Id. (citation and internal quotation marks omitted); see also United States v. Walton , 881 F.3d 768, 771 (9th Cir. 2018) (citation omitted). Here, the Government has "presented at length before this court" its positions on the two "purely legal question[s]" at issue: whether California robbery constitutes a "crime of violence" under § 16 pursuant to Dimaya , and whether Dimaya , along with other recent case law from this Circuit, provides a "fair and just reason" for withdrawal of the guilty plea. See id. ; see also United States v. Evans-Martinez , 611 F.3d 635, 642 (9th Cir. 2010). Accordingly, we review these interrelated legal questions de novo. See id.2
Section 16 defines "crime of violence" as "(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person...
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