United States v. Rodriguez-Gamboa, No. 19-50014 (9th Cir. 2020)
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The Ninth Circuit reversed the district court's dismissal of an information charging defendant with illegal reentry in violation of 8 U.S.C. 1326 where defendant was previously removed because of an "aggravated felony" conviction—possession for sale of methamphetamine in violation of California Health & Safety Code 11378. In this case, the district court held an evidentiary hearing, heard the testimony of expert witnesses, and concluded that geometric isomers of methamphetamine do not chemically exist.
The panel held that the district court's factual finding that geometric isomers of methamphetamine do not exist, under clear error review, finds overwhelming support in the record. The panel rejected defendant's contention that the California statute is overbroad because of its facial inclusion of "geometrical" isomers of methamphetamine. In light of Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), and based on the evidentiary record before it, the panel held that there is simply no "realistic probability"—nor even a theoretical one—of defendant facing criminal liability under California law for the possession of geometric isomers of methamphetamine.
Court Description: Criminal Law. The panel reversed the district court’s dismissal of an information charging illegal reentry in violation of 8 U.S.C. § 1326, and remanded for further proceedings, in a case in which the defendant was previously removed because of an “aggravated felony” conviction—possession for sale of methamphetamine in violation of California Health & Safety Code § 11378. The defendant sought dismissal of the information on the ground that Section 11378 is categorically overbroad because the definition of methamphetamine under California law includes optical and geometric isomers, while the federal comparator statute covers only the optical isomer. On limited remand, the district court held an evidentiary hearing at which it heard unrebutted expert testimony, and concluded that there is no such thing as a geometric isomer of methamphetamine. The panel held that the district court’s factual finding that geometric isomers of methamphetamine do not exist, which it reviewed for clear error, finds overwhelming support in the record; and rejected the argument that the California statute’s facial inclusion of “geometrical” isomers of methamphetamine reflects a legislative determination that such isomers actually exist. UNITED STATES V. RODRIGUEZ-GAMBOA 3 The panel addressed the legal issue whether the factual impossibility of a state statute being applied more broadly than a federal comparator means there is a categorical match between the two, even if the state statute is textually overbroad. Finding Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), most instructive, the panel wrote that, based on the evidentiary record, there is simply no “realistic probability”—nor even a theoretical one—of the defendant facing liability under California law for the possession of geometric isomers of methamphetamine. The panel explained that the purpose of the categorical approach is to ascertain whether the defendant was necessarily convicted in state court of conduct that would also violate the relevant federal law, and wrote that if there is no realistic probability that this is not the case, the goal of the inquiry is surely satisfied. The panel concluded that because geometric isomers of methamphetamine are impossible, there is no realistic probability that the defendant’s California methamphetamine statute of conviction will be used to prosecute someone in connection with geometric isomers of methamphetamine.
This opinion or order relates to an opinion or order originally issued on December 27, 2019.
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