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 Division; United
States Attorney’s Office, Los Angeles, California; for
Plaintiff-Appellee.
4 UNITED STATES V. GARCIA-LOPEZ
OPINION
D.W. NELSON, Circuit Judge:
Antonio Garcia-Lopez (“Garcia-Lopez”) appeals the
district court’s denial of his Motion to Withdraw his Guilty
Plea (“Motion to Withdraw”). He contends we should
reverse because (1) he did not have an interpreter in his native
tongue, Zapotecan, at his plea hearing and did not fully
understand the proceedings, and (2) the Supreme Court’s
decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and
recent case law from this Circuit undermine the basis for his
indictment. His second argument provides a plausible ground
for dismissal of the indictment and serves as a “fair and just
reason” for permitting withdrawal of the plea here. We
therefore decline to address his first argument. We vacate the
district court’s order and remand with instructions to permit
Garcia-Lopez to withdraw his guilty plea.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
Garcia-Lopez is a native of Oaxaca, Mexico, and is a
member of an indigenous minority group from that area
known as the Zapotecs. He grew up speaking Zapotecan at
home but learned Spanish for a few years in elementary
school. Garcia-Lopez claims that he has “a very limited
understanding of Spanish” and that he does “not speak
enough . . . to be an advocate for [himself].”
I. Conduct Underlying the Federal Indictment
Garcia-Lopez entered the United States at San Ysidro,
California, in June 2001. He worked for many years in the
United States until he was arrested in 2010 for robbery
UNITED STATES V. GARCIA-LOPEZ 5
pursuant to California Penal Code § 211 (“California
robbery”) and battery pursuant to California Penal Code
§ 242. The battery charge was dismissed due to plea
negotiations and Garcia-Lopez pled guilty to the robbery
charge with the help of a Spanish interpreter. Garcia-Lopez
received 36 months of formal probation and served a year in
jail.
The U.S. Immigration and Customs Enforcement (“ICE”)
then placed him in expedited removal proceedings based on
his conviction for an “aggravated felony” pursuant to
8 U.S.C. § 1227(a)(2)(A)(iii), as further defined in 8 U.S.C
§ 1101(a)(43)(F) and 18 U.S.C. § 16. It essentially
determined that California robbery constituted a “crime of
violence” pursuant to § 16, and because Garcia-Lopez served
at least a year in jail for the offense, it also constituted an
“aggravated felony” under § 1101, rendering him deportable
under § 1227. He was deported on April 15, 2011. Garcia-
Lopez returned to the United States shortly thereafter and was
removed again on April 28, 2011, pursuant to the April 15
order.
II. The Federal Indictment and Related Proceedings
Garcia-Lopez entered the United States a third time, and
federal authorities found him in Los Angeles County on
February 14, 2014. On May 16, 2014, Garcia-Lopez was
charged with violating 8 U.S.C. § 1326(a), (b)(2) for
allegedly returning to the United States after having been
deported in April 2011 and after having been convicted of an
“aggravated felony.” Garcia-Lopez pled guilty to the single-
count indictment, but later sought to withdraw his plea on
grounds that he did not have a Zapotecan interpreter at his
plea hearing and that his due process rights were violated
6 UNITED STATES V. GARCIA-LOPEZ
pursuant to our then-recent decision in United States v. Raya-
Vaca, 771 F.3d 1195 (9th Cir. 2014). He also sought to
dismiss the indictment based on Raya-Vaca and filed a
motion pursuant to § 1326(d).1
After a lengthy hearing, the district court denied Garcia-
Lopez’s Motion to Withdraw his Guilty Plea and therefore
declined to consider his Motion to Dismiss the Indictment
(“Motion to Dismiss”). Based on its review of the record, the
district court found Raya-Vaca inapplicable and further found
Garcia-Lopez spoke Spanish well enough to understand his
plea proceedings.
On August 4, 2015, Garcia-Lopez was sentenced to
30 months of imprisonment and three years of supervised
release. Garcia-Lopez is currently on supervised released.
This appeal followed.
STANDARD OF REVIEW
“[W]e review a district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion.” United States
v. Yamashiro, 788 F.3d 1231, 1236 (9th Cir. 2015) (citation
omitted). “A court abuses its discretion when it rests its
decision on an inaccurate view of the law . . . or on a clearly
erroneous finding of fact.” United States v. Ensminger,
567 F.3d 587, 590 (9th Cir. 2009) (citations and internal
quotation marks omitted).
1
Garcia-Lopez does not raise the Raya-Vaca issue on appeal and
instead focuses his efforts on Dimaya.
UNITED STATES V. GARCIA-LOPEZ 7
DISCUSSION
A defendant may withdraw his guilty plea before
sentencing if he can show a “fair and just reason” for
requesting the withdrawal. Fed. R. Crim. P. 11(d)(2)(B). The
fair and just standard “is generous and must be applied
liberally,” but a defendant may not withdraw his plea “simply
on a lark.” Ensminger, 567 F.3d at 590 (citations and internal
quotation marks omitted). “Fair and just reasons for
withdrawal include ‘inadequate Rule 11 plea colloquies,
newly discovered evidence, intervening circumstances, or any
other reason for withdrawing the plea that did not exist when
the defendant entered his plea.’” Yamashiro, 788 F.3d at
1237 (citation omitted). “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.” Ensminger, 567 F.3d at 592. In such cases, a
defendant “need not show that his [new arguments] will be
successful on [their] merits.” United States v. McTiernan,
546 F.3d 1160, 1168 (9th Cir. 2008). “His burden is [only]
to show that proper advice could have at least plausibly
motivated a reasonable person in [his] position not to have
pled guilty had he known about [the new case law] prior to
pleading.” Id. (citation and internal quotation marks
omitted); see also Ensminger, 567 F.3d at 591–92 (relevant
inquiry is whether “marked shift in governing law” provides
a “plausible ground for dismissal of [the] indictment”
(citation and internal quotation marks omitted)); United
States v. Ortega-Ascanio, 376 F.3d 879, 887 (9th Cir. 2004)
(same).
Here, Garcia-Lopez claims two alternative grounds for
withdrawing his guilty plea: (1) that he did not have a
Zapotecan translator at his plea hearing and did not fully
8 UNITED STATES V. GARCIA-LOPEZ
understand the proceedings; and (2) California robbery is no
longer a “crime of violence” under § 16 pursuant to Dimaya
and related Ninth Circuit precedent. Because we find Garcia-
Lopez is entitled to withdraw his plea on the second ground,
we need not and do not consider his alternative argument that
the alleged language barrier is also a “fair and just reason” for
permitting withdrawal of the plea. United States v. Garcia,
401 F.3d 1008, 1012 n.3 (9th Cir. 2005).
I. Dimaya, Related Ninth Circuit Case Law, and the
Motion to Withdraw
Garcia-Lopez contends the federal indictment filed
against him alleging illegal reentry is fundamentally flawed
because the removal order on which it was based is invalid.
According to the removal order, Garcia-Lopez’s conviction
for California robbery was a “crime of violence” pursuant to
18 U.S.C. § 16, and because Garcia-Lopez served at least a
year in jail for the offense, it also constituted an “aggravated
felony” under 8 U.S.C. § 1101, rendering him deportable
under 8 U.S.C. § 1227. Garcia-Lopez claims for the first time
on appeal that California robbery is no longer a “crime of
violence” under Dimaya and related Ninth Circuit case law,
and that these cases provide a “fair and just reason” to allow
him to withdraw his guilty plea.
Before turning to the merits of Garcia-Lopez’s argument,
we first address the proper standard of review. Garcia-Lopez
did not raise in the court below the argument that California
robbery does not constitute a “crime of violence” under § 16.
He raised the issue for the first time on appeal and premised
his argument on Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.
2015), which we decided while his appeal was pending. The
Supreme Court affirmed the Ninth Circuit’s decision in
UNITED STATES V. GARCIA-LOPEZ 9
Lynch, Dimaya, 138 S. Ct. at 1223, and we subsequently
received supplemental briefing on Dimaya, as well as related
case law from this Circuit.
“We generally review arguments not raised before the
district court for plain error.” United States v. Saavedra-
Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009). “However,
we are not limited to this standard of review when we are
presented with [1] a question that is purely one of law and
[2] where the opposing party will suffer no prejudice as a
result of the failure to raise the issue in the trial court.” Id.
(citation and internal question marks omitted); see also
United States v. Walton, 881 F.3d 768, 771 (9th Cir. 2018)
(citation omitted). Here, the Government has “presented at
length before this court” its positions on the two “purely legal
question[s]” at issue: whether California robbery constitutes
a “crime of violence” under § 16 pursuant to Dimaya, and
whether Dimaya, along with other recent case law from this
Circuit, provides a “fair and just reason” for withdrawal of
the guilty plea. See id.; see also United States v. Evans-
Martinez, 611 F.3d 635, 642 (9th Cir. 2010). Accordingly,
we review these interrelated legal questions de novo. See id.2
A.
Section 16 defines “crime of violence” as “(a) an offense
that has as an element the use, attempted use, or threatened
use of physical force against the person or property of
another, or (b) any other offense that is a felony and that, by
2
The Government agrees the first question is reviewed de novo, but
suggests we should review the second for plain error. Because Garcia-
Lopez has met his burden even under a plain error analysis, he may
withdraw his guilty plea here.
10 UNITED STATES V. GARCIA-LOPEZ
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.” The Supreme Court in
Dimaya recently held § 16(b) unconstitutional under the Due
Process Clause, 138 S. Ct. at 1212, 1216, effectively
overruling our prior contradictory precedent in United States
v. McDougherty, 920 F.2d 569 (9th Cir. 1990). See Miller v.
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (finding
three-judge panel has authority to overrule “prior circuit
authority” when it is “clearly irreconcilable with . . .
intervening higher authority”).
Without § 16(b), the Government’s indictment and the
April 15 removal order can only stand if California robbery
constituted a “crime of violence” pursuant to § 16(a). Our
case law establishes it is not.
In United States v. Dixon, we considered whether
California robbery was a “violent felony” for purposes of the
Armed Career Criminal Act (“ACCA”). 805 F.3d 1193, 1194
(9th Cir. 2015). A “violent felony” under the ACCA is “any
crime punishable by imprisonment for a term exceeding one
year . . . that (i) has as an element the use, attempted use, or
threatened use of physical force against the person of another;
or (ii) is burglary, arson, . . . extortion, [or] involves use of
explosives.” 18 U.S.C. § 924(e)(2)(B). Finding that
California robbery was not a categorical match to any of the
offenses enumerated in § 924(e)(2)(B)(ii), we proceeded to
analyze whether it involved “physical force” pursuant to
§ 924(e)(2)(B)(i). Dixon, 805 F.3d at 1196–97. Under that
prong, the “physical force” used must be “violent force,” or
“force capable of causing physical pain or injury to another.”
Rodriguez-Castellon v. Holder, 733 F.3d 847, 853–54 (9th
Cir. 2013) (quoting Johnson v. United States, 559 U.S. 133,
UNITED STATES V. GARCIA-LOPEZ 11
140 (2010)) (applying Johnson to § 16(a)). Furthermore, the
force used must be intentional, not just reckless or negligent.
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130 (9th Cir.
2006) (interpreting § 16(a)). Because a person could commit
California robbery “by accidentally using force,” we held that
crime was not a categorical match to § 924(e)(2)(B)(i).
Dixon, 805 F.3d at 1197 (citing People v. Anderson, 252 P.3d
968 (Cal. 2011)). We further held California robbery was
“not divisible” and vacated the defendant’s sentence. Id. at
1198–99.
Dixon controls this case. “[B]ecause the wording of
[§ 924(e)(2)(B)(i) and § 16(a) are] virtually identical, we
interpret their plain language in the same manner.” United
States v. Benally, 843 F.3d 350, 354 (9th Cir. 2016) (citation
omitted); see also Walton, 881 F.3d at 771 n.1. Accordingly,
we hold that California robbery does not constitute a “crime
of violence” pursuant to § 16(a).
The Government’s cases to the contrary are unpersuasive.
In Nieves-Medrano v. Holder, for example, we held pre-
Johnson that carjacking under California law constituted a
“crime of violence” under § 16(a). 590 F.3d 1057, 1058 (9th
Cir. 2010), abrogated by Solorio-Ruiz v. Sessions, 881 F.3d
733, 736 (9th Cir. 2018). Because California robbery was a
“crime of violence” under the Sentencing Guidelines, and
“[t]he same elements that ma[d]e [robbery] a crime of
violence [were] also required [for carjacking],” the latter was
also a categorical match to the crimes defined in § 16(a). Id.
(citing United States v. Becerril-Lopez, 541 F.3d 881, 893
(9th Cir. 2008)).
But we recognized in Solorio-Ruiz that “neither Nieves-
Medrano nor [Becerril-Lopez] . . . demonstrate[d] that [the
12 UNITED STATES V. GARCIA-LOPEZ
Court had] considered, at all, whether [California carjacking
and robbery] require[d] the use of violent force” required by
Johnson. 881 F.3d at 736. By “changing the crime-of-
violence analysis,” Johnson had “effectively overruled” these
decisions. Id. (citation omitted).
For the same reasons, the Government’s reliance on
United States v. David H. is mistaken. There, we concluded
that California robbery “included the element of ‘threatened
use of physical force against the person of another’” under the
mandatory transfer provision of the Juvenile Delinquency
Act. David H., 29 F.3d 489, 494 (9th Cir. 1994) (citing
18 U.S.C. § 5032). The Government contends that because
§ 5032 and § 16(a) are identically worded, California robbery
must also be a “crime of violence” under § 16(a). Not so.
We previously rejected this very argument in a case
interpreting the ACCA, finding that David H. “predate[d]
Johnson and so applied the incorrect analysis.” Walton,
881 F.3d at 775. Accordingly, David H.’s holding that
California robbery involved the “threatened use of physical
force” under § 5032 has likely been overruled by Johnson,
see Gammie, 335 F.3d at 893, or, at the very least, is
inapplicable here in light of the correct analyses of Walton,
Dixon, and Solorio-Ruiz.
Therefore, 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).3
3
In our recent decision United States v. Bankston, No. 16-10124,
2018 WL 4016853 (9th Cir. Aug. 23, 2018), we considered whether
California robbery is a crime of violence under the Sentencing Guidelines.
Unlike the Guidelines—which contain an enumeration clause and, prior
to August 1, 2016, a residual clause, see U.S.S.G. § 4B1.2(a)(2)
UNITED STATES V. GARCIA-LOPEZ 13
B.
These cases also provide a “fair and just reason” for
Garcia-Lopez to withdraw his guilty plea. Fed. R. Crim. P.
11(d)(2)(B). Dimaya, Walton, Dixon, and Solorio-Ruiz
represent a “marked shift” in the law governing crime-of-
violence analyses that gave “traction to a previously
foreclosed or unavailable argument”—that California robbery
is not a “crime of violence” pursuant to § 16. Ensminger,
567 F.3d at 592. Based on these cases, Garcia-Lopez has
more than met his burden of showing that he has “a plausible
ground for dismissal of his indictment,” and hence, has
demonstrated a “fair and just reason” for withdrawing his
guilty plea. Ortega-Ascanio, 376 F.3d at 887.
Furthermore, to the extent plain error review applies to
whether Garcia-Lopez has established a “fair and just reason”
for withdrawal, he has met his burden here. “The plain-error
standard of review dictates that [relief] is warranted only
where there has been (1) error; (2) that is plain; (3) that
affects substantial rights; and (4) where the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Pelisamen, 641 F.3d 399, 404
(2015)—§ 16 does not enumerate any offenses, nor does it contain a
residual clause after Dimaya. Section 16(a), however, is identical to
U.S.S.G. § 4B1.2(a)(1), commonly known as the “force” clause. We
analyzed in Bankston whether California robbery is a categorical match
to the generic definitions of robbery and extortion under the enumeration
and residual clauses in § 4B1.2(a)(2). In accord with our decision today,
Bankston did not disturb the district court’s finding there that California
robbery cannot be a categorical match to the separate force clause within
the Guidelines. See Bankston, 2018 WL 4016853, at *6 (9th Cir. Aug. 23,
2018) (citing Dixon, 805 F.3d at 1197–98).
14 UNITED STATES V. GARCIA-LOPEZ
(9th Cir. 2011) (citing Johnson v. United States, 520 U.S.
461, 466–67 (1997)).
As demonstrated above, that current case law establishes
California robbery is not a “crime of violence” pursuant to
§ 16 is “clear” and “obvious” such that the first two prongs of
the test are met. United States v. Christensen, 828 F.3d 763,
789 (9th Cir. 2015) (quoting United States v. Olano, 507 U.S.
725, 734 (1993)). The error also affected Garcia-Lopez’s
substantial rights—the district court here only accepted
Garcia-Lopez’s guilty plea after he acknowledged (1) the
Government was required to prove that California robbery is
a “crime of violence,” and (2) that he had been deported after
having been convicted of a “crime of violence” and having
served a year in jail. In this way, the error was “prejudicial”
to him and certainly “affected the outcome of the [trial] court
proceedings.” Pelisamen, 641 F.3d at 405 (quoting Olano,
507 U.S. at 734). Finally, the error would seriously
undermine the fairness of the judicial proceedings. California
robbery was the only “crime of violence” on which the
Government based its indictment and on which his removal
depended. If both are allowed to stand, the result would be
that Garcia-Lopez is pleading guilty to and being removed for
something that is not a crime under the statutes cited. See
United States v. Folkes, 622 F.3d 152, 158 (2d Cir. 2010)
(finding unfairness in sentencing due to erroneous “crime of
violence” determination). Accordingly, Garcia-Lopez has
met his burden even under plain error review.
The Government nonetheless argues there are certain
procedural defects with the Motion to Dismiss Garcia-Lopez
ultimately seeks to pursue, and because he cannot obtain
relief under that Motion, prohibiting withdrawal here is not
unfair or unjust. As will be explained below, that Motion is
UNITED STATES V. GARCIA-LOPEZ 15
not before us on appeal, and we decline to address its merits
here.
II. The Government’s Arguments Concerning the
Motion to Dismiss
The Government contends the Motion to Dismiss is
meritless. It claims (1) that Garcia-Lopez waived his right to
bring a Motion to Dismiss by failing to do so before trial as
required by Federal Rule of Criminal Procedure 12(b)(3); and
(2) that the procedural defects plaguing his Motion to Dismiss
render it an exercise in futility.4
A.
Even assuming Garcia-Lopez waived his right to dismiss
the indictment by moving after he pled guilty, we have
repeatedly held that “issues . . . deemed waived [in the district
court] under Rule 12 may be addressed by this court and
relief may be granted where good cause is shown for the
party’s failure to raise the argument earlier.” United States v.
Aguilera-Rios, 769 F.3d 626, 630 (9th Cir. 2014) (citations
and internal quotation marks omitted); United States v.
Anderson, 472 F.3d 662, 669 (9th Cir. 2006). Like the
defendant in Aguilera-Rios, Garcia-Lopez “would have had
no reason to challenge” whether California robbery
4
Even though Garcia-Lopez’s removal may have been valid based on
the law at the time, that fact does not change the analysis of whether
Garcia-Lopez has established a “fair and just reason” to withdraw his plea.
To the contrary, we have held that, when a prior removal order is premised
on a crime that is in fact not a removable offence, the alien “has
established both that his due process rights were violated and that he
suffered prejudice as a result.” See United States v. Martinez, 786 F.3d
1227, 1230 (9th Cir. 2015).
16 UNITED STATES V. GARCIA-LOPEZ
constituted a “crime of violence” pursuant to § 16 until the
Supreme Court’s decision in Dimaya. 769 F.3d at 630.
“[T]his Court’s case law prior to [Dimaya] foreclosed the
argument he now makes.” Id. at 631. Furthermore, Garcia-
Lopez “demonstrated diligence . . . in this Court” by
premising his argument on Dimaya in his opening brief and
then supplementing his briefing once the Supreme Court
affirmed in Dimaya. The Government, for its part, has had “a
full opportunity to respond in written briefing” to Garcia-
Lopez’s arguments. Accordingly, Garcia-Lopez “has . . .
shown ‘good cause’ to excuse his failure to raise this
argument in the district court,” and we “decline to find it
waived.” Id.
The Government, however, claims that the defendant in
Aguilera-Rios filed his motion to dismiss before trial and was
merely adding a new argument based on new case law when
he appealed. Thus, it contends, because Garcia-Lopez filed
his Motion to Dismiss after he pled guilty his new argument
has always been untimely, and he has therefore waived his
ability to bring his Motion. Our cases hold otherwise. In
Anderson, we granted relief to a defendant who had failed
entirely to bring a “motion to dismiss . . . prior to trial”
because he had shown “good cause to [set aside] the waiver
of his affirmative defenses.” 472 F.3d at 668–70. The
Government’s claim also runs contrary to Aguilera-Rios and
related cases which hold that even where there is waiver, we
may grant relief for good cause. 769 F.3d at 631.
Accordingly, we reject the Government’s contention.
B.
The Government next proceeds to attack the merits of
Garcia-Lopez’s Motion to Dismiss and argues we should
UNITED STATES V. GARCIA-LOPEZ 17
review it for plain error. That Motion, of course, has never
been ruled on by the district court, has not been appealed
here, and therefore, has not been fully briefed. Garcia-Lopez
has not had any opportunity to address the Government’s
arguments concerning his § 1326(d) Motion. Because this
Motion is not at issue here, we “leave the determination of the
motion to dismiss the indictment to the district court” to
consider in the first instance. Ortega-Ascanio, 376 F.3d at
887 (declining to reach merits of § 1326 motion to dismiss
after permitting defendant to withdraw his guilty plea); see
also United States v. Mendez-Santana, 645 F.3d 822, 827
(6th Cir. 2011) (“Before the district court could grant
Mendez-Santana’s motion to dismiss and terminate the
prosecution, it would first need to grant his motion to
withdraw his guilty plea.”).
CONCLUSION
Dimaya and related Ninth Circuit cases establish that
California robbery—the sole charge underlying Garcia-
Lopez’s illegal reentry indictment and his removal order—is
not a “crime of violence” pursuant to § 16. This fundamental
change in the law operates as a “fair and just reason” to allow
Garcia-Lopez to withdraw his guilty plea. With respect to
Garcia-Lopez’s Motion to Dismiss, we leave that to the
district court to consider in the first instance.
VACATED and REMANDED.
18 UNITED STATES V. GARCIA-LOPEZ
TALLMAN, Circuit Judge, concurring:
Although I join the majority opinion because it correctly
analyzes the current state of the law, I write separately to call
attention yet again to the continuing frustrations caused by
the inconsistent and arbitrary treatment of “crime[s] of
violence.” 18 U.S.C. § 16. Caused by vagaries in state law
and the Supreme Court’s ever-evolving jurisprudence on the
topic, “[t]he bedeviling ‘modified categorical approach’ . . .
continue[s] to spit out intra- and inter-circuit splits and
confusion.” Almanza-Arenas v. Lynch, 815 F.3d 469, 483
(9th Cir. 2016) (en banc) (Owens, J., concurring). It is time
that Congress steps in to create a more reasonable, consistent,
and functional standard for removing violent criminals from
our country. See Descamps v. United States, 570 U.S. 254,
279 (2013) (“If Congress wishes to pursue its policy in a
proper and efficient way without mandating uniformity
among the States with respect to their criminal statutes for
scores of serious offenses, and without requiring the
amendment of any number of federal criminal statutes as
well, Congress should act at once.”) (Kennedy, J.,
concurring).