United States v. Torres-Lopez

26 F. App'x 758

Opinion

AMENDED ORDER

The court is of the unanimous opinion that the facts and legal arguments are adequately presented in the briefs and record, and that the decisional process would not be significantly aided by oral argument. Fed. R.App. P. 34(a)(2). The order filed on January 11, 2002 is vacated. This case shall be submitted on the briefs and record, without oral argument, on January 30, 2002, in Pasadena, California.

MEMORANDUM

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Ricardo Torres-Lopez (“Torres”) appeals the district court’s order denying his motion to dismiss an indictment charging him with attempted reentry after deportation, in violation of 8 U.S.C. § 1326. The indictment was dismissed by the government after Torres entered a conditional guilty plea to a superseding information charging him with illegal entry in violation of 8 U.S.C. § 1325. We have jurisdiction under 28 U.S.C. § 1291 and we reverse and remand.

Torres’ appeal is not mooted by the government’s dismissal of the indictment after Torres entered his conditional guilty plea. See United States v. Scott, 884 F.2d 1163, 1165 (9th Cir.1989) (per curiam).

Torres contends that his indictment is defective because it fails to allege specific intent. We agree, as does the government, and reverse the district court’s order denying Torres’ motion to dismiss the indictment. See United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir. 2001). We also remand to the district court and instruct the court to permit Torres to withdraw his guilty plea to the superseding information. See Fed. R.Crim.P. 11(a)(2); Scott, 884 F.2d at 1165.

Finding that exceptional circumstances are present, and in the interests of justice, we order that the mandate shall issue forthwith. See Fed. R.App. P. 41(b); 9th Cir. R. 41-1, Circuit Advisory Committee Note.

REVERSED and REMANDED.¹

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1 . Appellant’s motion to substitute counsel on appeal is DENIED as moot.