FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 15-50366 Plaintiff-Appellee, D.C. No. v. 2:14-cr-00286-BRO-1 ANTONIO GARCIA-LOPEZ, Defendant-Appellant. OPINION Appeal from the United States District Court for the Central District of California Beverly Reid O’Connell, District Judge, Presiding Submitted September 7, 2018* Pasadena, California Filed September 7, 2018 Before: Dorothy W. Nelson, Richard C. Tallman, and N. Randy Smith, Circuit Judges. Opinion by Judge D.W. Nelson; Concurrence by Judge Tallman * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 UNITED STATES V. GARCIA-LOPEZ SUMMARY** Criminal Law The panel vacated the district court’s order denying the defendant’s motion to withdraw his guilty plea to a violation of 8 U.S.C. § 1326(a), (b)(2) for illegally reentering the United States after having been deported and after having been convicted of an “aggravated felony.” The defendant contended that the indictment is fundamentally flawed because the prior conviction on which his removal depended – robbery under California Penal Code § 211 – is no longer a “crime of violence” under 18 U.S.C. § 16. Reviewing de novo, the panel held that: (1) in light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and recent case law from this Circuit, California robbery is no longer a “crime of violence” under § 16(a) or § 16(b); and (2) in light of this marked shift in the law governing crime-of-violence analysis, the defendant has a plausible ground for dismissal of the indictment and hence has demonstrated a “fair and just reason” for withdrawing his guilty plea. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. GARCIA-LOPEZ 3 The panel wrote that to the extent plain error review applies to whether the defendant has established a “fair and just reason” for withdrawal, he has met that burden. The panel rejected the government’s arguments concerning the defendant’s motion to dismiss the indictment pursuant to 8 U.S.C. § 1326(d). The panel explained that even assuming the defendant waived his right to dismiss the indictment by not moving to do so until after he pled guilty, he has shown good cause for failing to raise the argument earlier. Remanding with instructions to permit the defendant to withdraw his guilty plea, the panel left to the district court to consider in the first instance the defendant’s motion to dismiss. Concurring, Judge Tallman wrote separately to call attention to the continuing frustrations caused by the inconsistent and arbitrary treatment of “crime[s] of violence.” He wrote that it is time that Congress steps in to create a more reasonable, consistent, and functional standard for removing violent criminals from our country. COUNSEL 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 ...
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