Argued
and Submitted October 18, 2019 Pasadena, California
Appeal
from the United States District Court No. 2:18-cr-00379-ODW-1
for the Central District of California Otis D. Wright II,
District Judge, Presiding
L.
Ashley Aull (argued), Chief, Criminal Appeals Section;
Lawrence S. Middleton and Brandon D. Fox, Chief, Criminal
Division; Nicola T. Hanna, United States Attorney; United
States Attorney's Office, Los Angeles, California; for
Plaintiff-Appellant.
David
Menninger (argued), Deputy Federal Public Defender; Hilary
Potashner, Federal Public Defender; Office of the Federal
Public Defender, Los Angeles, California; for
Defendant-Appellee.
Before: Kim McLane Wardlaw and Andrew D. Hurwitz, Circuit
Judges, and Joseph F. Bataillon, [*] District Judge.
SUMMARY[**]
Immigration
The
panel affirmed the district court's order permitting the
defendant to withdraw her guilty plea to illegal reentry
under 8 U.S.C. § 1326, vacated the district court's
dismissal of the indictment, and remanded to the district
court for the limited purpose of resolving the factual issue
of whether geometric isomers of methamphetamine exist.
The
removal that served as the predicate for the defendant's
§ 1326 conviction was based on her prior conviction for
possession of methamphetamine for sale in violation of
California Health and Safety Code § 11378. Shortly after
the defendant pleaded guilty to the § 1326 information,
this court held in Lorenzo v. Sessions, 902 F.3d 930
(9th Cir. 2018) (Lorenzo I), that the definition of
methamphetamine applicable to convictions under § 11378
is broader than the definition of methamphetamine under the
federal Controlled Substances Act. The district court granted
the defendant's motion to withdraw her guilty plea and to
dismiss the information in light of Lorenzo I.
The
panel held that the district court did not abuse its
discretion in allowing the defendant to withdraw her guilty
plea following Lorenzo I because that decision
effectively invalidated her underlying removal.
Following
the defendant's withdrawal of her guilty plea and the
dismissal of the information, this court withdrew the opinion
in Lorenzo I and replaced it with a non-precedential
memorandum disposition, Lorenzo v. Whitaker, 752
Fed.Appx. 482 (9th Cir. 2019) (Lorenzo II).
Lorenzo II expressly stated that the government is
not foreclosed from raising in other cases the argument that
any difference between California and federal law about the
definition of methamphetamine is illusory.
The
government argues that because both California and federal
law prohibit possession for sale of methamphetamine and
"its" isomers, they are identical, because the
California statute is limited to those isomers of
methamphetamine that actually exist and geometric isomers of
methamphetamine do not. The panel declined the
government's invitation to rewrite California law, whose
statutory scheme strongly suggests that the California
legislature deliberately distinguished between the various
isomers of controlled substances and expressly noted when its
definitions were conditioned on the existence of a particular
isomer. But because whether geometric isomers of
methamphetamine exist is a factual issue that has the
potential to inform the panel's disposition of this
appeal and future cases, and because the district court has
never made a finding as to that factual issue, the panel
remanded to the district court for the limited purpose of
resolving that evidentiary issue in the first instance. The
panel wrote that it will retain jurisdiction over the appeal
and address its merits after the district court reports its
factual findings.
OPINION
HURWITZ, Circuit Judge
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 appellee Francisca Rodriguez-Gamboa did not commit
illegal reentry under 8 U.S.C. ...