U.S. v. Martinez-Cortez, 354 F.3d 830 (Fed. 8th Cir. 1/13/2004)

• Decision Date: 13 January 2004
• Docket Number: No. 02-4141.,02-4141.
• Citation: 354 F.3d 830
• Parties: UNITED STATES of America, Appellant v. Jerardo MARTINEZ-CORTEZ, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

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354 F.3d 830

UNITED STATES of America, Appellant v. Jerardo MARTINEZ-CORTEZ, Appellee.

No. 02-4141.

United States Court of Appeals, Eighth Circuit.

Submitted: November 18, 2003.

Filed: January 13, 2004.

Order Denying Petition for Rehearing and for

Rehearing En Banc March 1, 2004

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied. Judge Lay would grant the petition for rehearing by the panel.

Nathan P. Peterson, argued, AUSA, of Minneapolis, MN, for appellant.

Joseph Margulies, argued, Minneapolis, MN, for appellee.

Before MURPHY, LAY, and FAGG, Circuit Judges.

FAGG, Circuit Judge.

Jerardo Martinez-Cortez pleaded guilty to conspiracy to distribute five hundred grams or more of methamphetamine in violation 21 U.S.C. § 846, 841(b)(1)(A). The presentence report (PSR) concluded Martinez-Cortez had four criminal history points based on two convictions in Minnesota state court. For leaving the scene of an accident, Martinez-Cortez had been sentenced to ninety days in jail, with eighty-nine days suspended, followed by one year of probation. Because he was sentenced to probation for a year, the conviction resulted in one criminal history point. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 4A1.2(c)(1)(A). For driving while intoxicated, Martinez-Cortez had been sentenced to thirty days in jail, with twenty-nine days stayed, and placed on probation for two years, resulting in one criminal history point under § 4A1.1(c). See id. § 4A1.2 n. 5 (DWI convictions are counted and are not minor traffic infractions within the meaning of § 4A1.2(c)). Because Martinez-Cortez was on probation for the DWI offense when he committed his federal drug offense, he was assessed two criminal history points under § 4A1.1(d).

After he pleaded guilty, but before sentencing, Martinez-Cortez filed motions in Minnesota state court seeking to modify his state sentences nunc pro tunc. Martinez-Cortez did not copy the federal prosecutor, who knew Martinez-Cortez was returning to state court, but could not have anticipated the unusual relief Martinez-Cortez would seek and receive. Although the probationary terms had already been completed, Martinez-Cortez sought and obtained a reduction of the first term of probation from 365 to 364 days for the express purpose of avoiding a criminal history point in his federal drug sentencing. For the DWI term of probation, Martinez-Cortez sought and received a reduction of the term of probation from June 19, 2002, to September 30, 2000, so "he would be off supervision during the time the government alleges the federal [drug] conspiracy was in existence." Nevertheless, Martinez-Cortez did not seek to withdraw his guilty pleas and stipulated his state convictions would count for any later enhancements under state law. Nor did Martinez-Cortez seek to modify the terms of imprisonment.

Over the Government's objection, the district court calculated Martinez-Cortez's criminal history based on the modified state sentences and granted relief under the safety valve, which permits sentencing below the statutory minimum sentence when the defendant, among other things, has no "more than one criminal history point, as determined under the sentencing guidelines." 18 U.S.C. § 3553(f)(1); U.S.S.G. § 5C1.2. The Government appeals asserting the district court committed error in finding Martinez-Cortez eligible for the safety valve. Reviewing application of the Guidelines de novo, United States v. Webb, 218 F.3d 877, 879 (8th Cir. 2000), we agree and thus reverse.

Martinez-Cortez faced a mandatory minimum sentence of ten years in prison unless the safety valve could be applied. The safety valve would not be available if Martinez-Cortez had more than one criminal history point. The Guidelines direct courts to add criminal history points for "each prior sentence," U.S.S.G. § 4A1.1, except for specific misdemeanors and petty crimes, for which criminal history points are added or not according to § 4A1.2(c). A sentence for leaving the scene of an accident is counted only if the sentence was at least one year of probation or at least thirty days imprisonment. Id. § 4A1.2(c)(1). A sentence for driving while intoxicated is always counted, regardless of the length. Id. n. 5. Whether an earlier sentence counts for criminal history purposes is a question of federal law. Webb, 218 F.3d at 879.

The Guidelines required the district court to count Martinez-Cortez's DWI conviction, regardless of the term of probation. U.S.S.G. § 4A1.1(c); id. § 4A1.2 n. 5; see United States v. Stone, 325 F.3d 1030, 1031 (8th Cir. 2003). Because the sentence was less than sixty days, the district court was required to assess one criminal history point under § 4A1.1(c). The district court was also required to assess two criminal history points if Martinez-Cortez committed his federal drug offense "while under any criminal justice sentence, including probation." U.S.S.G. § 4A1.1(d). Whether Martinez-Cortez was under a criminal justice sentence for purposes of § 4A1.1(d) is a question of federal law. United States v. Renfrew, 957 F.2d 525, 526-27 (8th Cir. 1992). As a factual matter, Martinez committed his drug offense while he was on probation for the DWI offense. Martinez-Cortez pleaded guilty to the DWI offense on June 19, 2000. He was sentenced that day, and the sentence included a two-year term of probation. The time period of the federal drug conspiracy, as charged in the indictment and to which Martinez-Cortez pleaded guilty, was from October 1, 2000 to October 3, 2001. The question then becomes whether the Guidelines permitted the district court to disregard the fact of his actual sentence because, for the sole purpose of obtaining favorable federal sentencing consequences, Martinez-Cortez had the probation period shortened after he served it and after he pleaded guilty to the federal drug conspiracy.

The Guidelines do permit courts to disregard some state court convictions and sentences for the purposes of criminal history. Specifically, the Guidelines direct courts not to count sentences for "expunged convictions." U.S.S.G. § 4A1.2(j). Nevertheless, courts must count sentences for convictions that, for reasons unrelated to innocence or errors of law, are set aside or for which the defendant is pardoned. Id. n. 10. Here, it is undisputed that Martinez-Cortez's state convictions were not expunged. Rather, his probationary terms were reduced after the probationary terms were served merely to obtain favorable federal sentencing. If Martinez-Cortez's convictions had been vacated for the express purpose of enabling him to become eligible for the safety valve, the sentences would have counted because the convictions would have been set aside for reasons unrelated to his innocence or errors of law. See United States v. Nicolace, 90 F.3d 255, 258 (8th Cir. 1996); United States v. Dobovsky, 279 F.3d 5, 8-9 (1st Cir. 2002). We conclude that, as a matter of federal law, Martinez-Cortez's lesser step of modifying his sentences after they were served for reasons unrelated to his innocence or errors of law is not a valid basis for not counting the sentences for criminal history purposes. Thus, when Martinez-Cortez committed the federal drug offense he remained under a sentence of probation for the purposes of § 4A1.1(d) and the district court was required to assess two criminal history points.

For the same reasons, the district court was required to assess one criminal history point for Martinez-Cortez's conviction for leaving the scene of an accident because he served one year of probation for the conviction and changed the probationary term later only to obtain federal sentencing benefits. U.S.S.G. § 4A1.2(c)(1).

In sum, given the timing and purpose of Martinez-Cortez's state sentence reductions, we believe the Guidelines required the district court to conclude Martinez-Lopez had four criminal history points and thus was ineligible for the safety valve. Accordingly, we reverse and remand for imposition of the mandatory minimum sentence.

LAY, Circuit Judge, dissenting.

As the Government reveals, this case "presents a unique sentencing issue which is apparently one of first impression at the appellate level." The primary issue concerns Defendant Jerardo Martinez-Cortez's eligibility for safety valve relief under the Guidelines. See 18 U.S.C. § 3553(f)(2); U.S. Sentencing Guidelines Manual § 5C1.2 (2002) [hereinafter U.S.S.G.]. Prior to his present offense, the Defendant was convicted in state court for two misdemeanor driving offenses, to-wit: leaving the scene of an accident and driving while intoxicated. For the former offense, the Defendant served one day in jail and was placed on one year of probation, resulting in one criminal history point under the Guidelines. See U.S.S.G. § 4A1.2(c). For the latter offense, the Defendant served one day in jail and was placed on probation for two years, resulting in one additional criminal history point. See U.S.S.G. § 4A1.2, cmt. n. 5. On the last day of probation, the Defendant committed the instant offense and was therefore assessed two more criminal history points. See U.S.S.G. § 4A1.1(d).

As the majority points out, the Defendant, after pleading guilty to the federal offense, filed motions in the state court to modify his state sentences nunc pro tunc. A state court judge reduced the Defendant's term of probation for leaving the scene of an accident from 365 to 364 days. Another state court judge reduced the term of probation for the DWI offense such that it ended one day prior to his arrest in the present case. The net result of these reductions was to alter the Defendant's criminal history score, giving him one criminal history point under the Guidelines and thereby making him eligible for the safety valve.

At the time of sentencing for the federal offense, the district judge, the Honorable Paul A. Magnuson, followed the recommendation of...