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Ninth Circuit Rules California Robbery Not a ‘Crime of Violence’ in Light of Dimaya and Allows Withdrawal of Guilty Plea

by David Reutter

The U.S. Court of Appeals for the Ninth Circuit held a defendant was entitled to withdraw his guilty plea to a charge of illegally reentering the United States in light of the decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), together with its own recent case law.

Antonio Garcia-Lopez entered the United States in 2001 and worked in California without incident until he was charged in 2010 with robbery. He pleaded guilty to the charge and received a sentence of a year in jail and 36 months probation. After he was released, he was deported because the robbery charge was a “crime of violence” that became an “aggravated felony” due to the one-year jail sentence, rendering him deportable under 8 U.S.C. § 1227 and 18 U.S.C. § 16.
Federal authorities found Garcia-Lopez in Los Angeles County on February 14, 2014. He was charged with violating 8 U.S.C. § 1326 (a), (b)(2) for returning to the United States after being deported for an “aggravated felony.”

Garcia-Lopez pleaded guilty to the charge and was sentenced to 30 months in prison and three years of supervised release.

On appeal, he argued his plea should be vacated because he was not provided an interpreter in his native language at the plea hearing and that robbery was no longer a crime of violence under new case law. The Ninth Circuit’s holding on the latter issue compelled it to forego adjudicating the former.

The Court noted that under Federal Rules of Criminal Procedure 11(d)(2)(B) a guilty plea prior to sentencing can be withdrawn upon a showing of a “fair and just reason” for doing so. The Ninth Circuit has ruled that “[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.” United States v. Ensminger, 567 F.3d 587 (9th Cir. 2009).

The Court then observed that the U.S. Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), held that 18 U.S.C. § 16(b), which defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” is unconstitutional under the Due Process Clause. It then explained that the indictment and removal order at issue “can only stand if California robbery constitutes a ‘crime of violence’ pursuant to § 16(a).” After reviewing relevant Ninth Circuit case law, the Court announced “we hold that California robbery does not constitute a ‘crime of violence’ pursuant to § 16(a)” and added “our 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).”

The Court then concluded that Dimaya together with specific Ninth Circuit cases discussed in its analysis provide “fair and just reason” for the withdrawal of Garcia-Lopez’s guilty plea. The cited cases represent a “marked shift” in the applicable law, and thus the Court ruled that he met his burden of establishing that he has “a plausible ground for dismissal of his indictment.”

Accordingly, the Court vacated the district court’s denial of Garcia-Lopez’s motion to withdraw his guilty plea and remanded the case for further proceedings. See: United States v. Garcia-Lopez, 903 F.3d 887 (9th Cir. 2018). 

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