In United States v. Garcia-Lopez, --- F.3d ---, No. 15-50366 (9th Cir. 2018), the Court 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.
This case is good on both substance and procedure.
First, as to substance, the Court held that California robbery (211) is no longer a “crime of violence” under § 16(a) or § 16(b).
Second, as to procedure, this provided the defendant good cause to withdraw his guilty plea, even though he did not raise the argument below.
Here is some of the helpful language for raising claims for the first time on appeal.
"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 . . . .'We generally review arguments not raised before the
district court for plain error.” United States v. '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.' 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."
"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.'"
