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United States v. Rodriguez-Gamboa

United States Court of Appeals, Ninth Circuit

December 27, 2019

United States of America, Plaintiff-Appellant,
v.
Francisca Rodriguez-Gamboa, Defendant-Appellee.

          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. ...


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