United States v. Antonio Garcia-Lopez
903 F.3d 887
9th Cir.2018Background
- Garcia-Lopez, a native Zapotecan speaker from Oaxaca, Mexico, was convicted in California of robbery (served ≥1 year) and removed in 2011; he later illegally reentered and was indicted under 8 U.S.C. § 1326(a), (b)(2).
- He pled guilty to the § 1326 charge with a Spanish interpreter, later moved to withdraw his plea asserting (a) lack of a Zapotecan interpreter and (b) that his underlying California robbery is no longer a “crime of violence” under 18 U.S.C. § 16 after Dimaya.
- The district court denied the motion to withdraw the plea, found Garcia‑Lopez understood Spanish sufficiently, and sentenced him to 30 months’ imprisonment (then on supervised release).
- On appeal Garcia‑Lopez focused on Dimaya and subsequent Ninth Circuit precedent to argue the removal order (and thus the § 1326 indictment) was invalid because California robbery is not a § 16 crime of violence.
- The Ninth Circuit held that, under Dimaya and its own decisions (notably Dixon, Walton, Solorio‑Ruiz), California robbery is not a crime of violence under § 16(a) or § 16(b), and that this change in law is a “fair and just reason” to allow withdrawal of the guilty plea.
- The panel vacated and remanded with instructions to permit Garcia‑Lopez to withdraw his plea, leaving any § 1326(d) motion to dismiss for the district court to consider in the first instance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of a Zapotecan interpreter at plea hearing warrants withdrawal | Garcia‑Lopez: language barrier meant he did not fully understand plea | Government: district court found Spanish interpreter adequate; alternative claims were forfeited | Court declined to decide this claim because it granted withdrawal on another ground |
| Whether California robbery is a “crime of violence” under 18 U.S.C. § 16 after Dimaya | Garcia‑Lopez: Dimaya and Ninth Circuit decisions mean California robbery is not a § 16 crime of violence, undermining his removal/indictment | Government: relied on pre‑Dimaya precedent and argued procedural defenses; contended the indictment remains valid | Court: California robbery is not a § 16(a) or § 16(b) crime of violence; Dimaya and Ninth Circuit case law provide a fair and just reason to withdraw the plea |
| Whether new legal argument may be raised on appeal though not presented below | Garcia‑Lopez: Dimaya is an intervening change; good cause exists to excuse failure to raise earlier | Government: argues waiver under Rule 12 and untimeliness of motion to dismiss | Court: Excused waiver—good cause shown; the purely legal question reviewed de novo and Government had full opportunity to respond |
| Whether the court should resolve the § 1326(d) motion to dismiss on appeal | Garcia‑Lopez: seeks dismissal based on invalid removal order | Government: argues procedural defects and futility | Court: declined to decide the § 1326(d) motion on appeal; remanded so district court may consider it in the first instance |
Key Cases Cited
- Dimaya v. Lynch, 138 S. Ct. 1204 (2018) (Supreme Court held § 16(b) residual clause unconstitutional)
- United States v. Dixon, 805 F.3d 1193 (9th Cir. 2015) (California robbery not a categorical match to ACCA ‘violent felony’ because force need not be intentional violent force)
- United States v. Walton, 881 F.3d 768 (9th Cir. 2018) (applied post‑Johnson analysis to crime‑of‑violence questions)
- Ensminger v. United States, 567 F.3d 587 (9th Cir. 2009) (standard for reviewing denial of motion to withdraw plea and effect of legal changes)
- Ortega‑Ascanio v. United States, 376 F.3d 879 (9th Cir. 2004) (marked shift in law can justify plea withdrawal)
- Johnson v. United States, 559 U.S. 133 (2010) (defining ‘physical force’ as violent force for crime‑of‑violence analyses)