U.S. v. Yepez

• Decision Date: 25 July 2011
• Docket Number: Nos. 09–50271,09–50409.,s. 09–50271
• Citation: 11 Cal. Daily Op. Serv. 11137,652 F.3d 1182,11 Cal. Daily Op. Serv. 9279
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.David YEPEZ, Defendant–Appellant.United States of America, Plaintiff–Appellant,v.Audenago Acosta–Montes, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

652 F.3d 1182

11 Cal. Daily Op. Serv. 9279

11 Cal. Daily Op. Serv. 11,137

UNITED STATES of America, Plaintiff–Appellee,

v.David YEPEZ, Defendant–Appellant.United States of America, Plaintiff–Appellant,

v.Audenago Acosta–Montes, Defendant–Appellee.

Nos. 09–50271

09–50409.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 4, 2010.Filed July 25, 2011.

Vincent J. Brunkow, Federal Defenders of San Diego Inc., San Diego, CA, for Audenago Acosta–Montes.Michael Edmond Burke, San Diego, CA, for David Yepez.Karen P. Hewitt, United States Attorney, and Bruce R. Castetter, Kyle W. Hoffman, and Timothy C. Perry, Assistant United States Attorneys, San Diego, CA, for the United States of America.Appeal from the United States District Court for the Southern District of California, Larry A. Burns, District Judge, Presiding. D.C. No. 3:08–cr–03499–LAB–1.Appeal from the United States District Court for the Southern District of California, M. James Lorenz, Senior District Judge, Presiding. D.C. No. 3:08–cr–02350–L–1.

Before: KIM McLANE WARDLAW and WILLIAM A. FLETCHER, Circuit Judges, and ROBERT J. TIMLIN, Senior District Judge.^*Opinion by Judge WARDLAW; Dissent by Judge TIMLIN.

OPINION

WARDLAW, Circuit Judge:

“[C]omity between state and federal courts ... has been recognized as a bulwark of the federal system.” Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). California Penal Code § 1203.3 permits state judges who are supervising individuals placed on state probation to terminate retroactively the terms of probation to which they had previously sentenced those defendants. Each of the defendants in these consolidated appeals was serving such a probationary sentence when he committed and pleaded guilty to the charge of smuggling methamphetamine into the United States. Before sentencing on the federal charge, however, each defendant obtained a modification order retroactively terminating his state-court probationary sentence as of the day before he committed his federal crime. Each argued to the state judge supervising him that failure to terminate the state probationary term would substantially increase his federal sentencing exposure by rendering him ineligible for safety-valve relief from the otherwise applicable ten-year statutory mandatory minimum. Though each federal district court judge observed that the mandatory minimum sentence was grossly excessive, the judge in Acosta–Montes's case deferred to the state court's nunc pro tunc ¹ termination of probation while the judge in Yepez's case did not. We must determine whether, given the California state courts' wide latitude to modify ongoing probationary terms under California state law, the federal district courts in calculating criminal history points for purposes of safety valve eligibility must credit state orders terminating probationary sentences. We concluded that they must.

I.

A. David Yepez

On July 18, 2007, David Yepez, who was then just over eighteen years old, pleaded guilty in California state court to driving under the influence of alcohol in violation of California Vehicle Code § 23152(b), and was placed on probation, initially for a period of three years. On September 16, 2008 Yepez, by then just over twenty years old, tried to enter the United States from Mexico while driving a vehicle containing more than seven kilograms of methamphetamine. After his arrest, Yepez explained that he needed money and had agreed to smuggle what he believed to be marijuana. As the district court later found, after crediting the border agents' testimony, Yepez was shocked to discover that the “marijuana” was in fact methamphetamine. ² On November 4, 2008, pursuant to a plea agreement, Yepez pleaded guilty before a magistrate judge to one count of importing methamphetamine in violation of 21 U.S.C. §§ 952 & 960. Yepez acknowledged that he was subject to the ten year statutory minimum term of imprisonment, and waived his right to appeal “unless the Court imposes a custodial sentence above the greater of the high end of the guideline range recommended by the Government pursuant to this agreement at the time of sentencing or statutory mandatory minimum term, if applicable.” ³

In its February 17, 2009 Presentence Investigation Report (“PSR”), the United States Probation Office concluded that Yepez was ineligible for safety valve relief under 18 U.S.C. § 3553(f). The Probation Office assigned two criminal history points U.S.S.G. § 4A1.1(d) for Yepez's commission of the offense while on probation for his 2007 DUI conviction, and therefore recommended the ten-year mandatory minimum sentence. While the government agreed with the recommendation, it noted that it would have recommended a sentence of 57 months had Yepez qualified for safety valve relief. Following disclosure of the PSR, Yepez moved for nunc pro tunc termination of probation under California Penal Code § 1203.3. On April 22, 2009, the state judge supervising his probation ordered Yepez's ongoing probation terminated as of September 15, 2008, the day before Yepez committed his federal offense.

At his May 18, 2009, federal sentencing hearing, Yepez objected to the sentencing recommendation, arguing that the state-court nunc pro tunc order made him eligible for safety valve relief, because by operation of state law he was not on probation when he committed his federal offense, so he did not have “more than 1 criminal history point.” 18 U.S.C. § 3553(f)(1). The government argued that the state court could not rewrite the historical fact that, at the time of the federal offense, Yepez had been on state probation. The district court imposed the mandatory minimum sentence of 120 months imprisonment despite its view that a 63 month sentence of imprisonment was the appropriate sentence. The court stated, “I wouldn't give Mr. Yepez a 10–year sentence if it was up to me, if I had discretion. Wouldn't do it. I think that's disproportionate given his background, but that's not what's at issue.... I don't like it. I really don't like it.... I have imposed [this sentence] because I felt like I had to. That's the only reason.”

B. Audenago Acosta–Montes

In 2006, Audenago Acosta–Montes, a lawful permanent resident, was convicted in California state court of one count of misdemeanor theft for shoplifting from a Target store, and was sentenced to one day in county jail and three years of probation. On May 7, 2008, Acosta–Montes attempted to enter the United States near San Ysidro, California, while driving a pickup truck containing approximately 3.30 kilograms of methamphetamine. On October 2, 2008, pursuant to a plea agreement, Acosta–Montes pleaded guilty to one count of importation of methamphetamine in violation of 21 U.S.C. §§ 952 & 960.

The Probation Office concluded that Acosta–Montes was ineligible for safety valve relief because when he committed the federal offense he remained on probation from his shoplifting conviction, and so had more than one criminal history point. The government accordingly recommended the ten-year statutory mandatory minimum term of imprisonment. Acosta–Montes sought and received a continuance of his sentencing date, and then moved in state court for an order retroactively terminating his probation to May 6, 2008, the day before he committed the federal offense. On April 1, 2009, the state court granted Acosta–Montes's motion over the state's opposition.

At Acosta–Montes's July 13, 2009 sentencing hearing, the district court credited the order modifying Acosta–Montes's ongoing probationary term, and concluded that Acosta–Montes was safety-valve eligible. Responding to the government's objections, the district court stated that, being “brutally honest,” it disagreed with “hamstringing a court with a mandatory minimum where facts don't deserve that.” The court explained that, given the nature of Acosta–Montes's offense, the nonviolent nature of Acosta–Montes's criminal record, which consisted solely of misdemeanor offenses, and Acosta–Montes's personal circumstances, a ten-year term of imprisonment was far too high. “The defendant isn't free of criminal conduct,” the court observed, “but he has been a productive worker that has provided for his family and children.” The court imposed a sentence of imprisonment of 46 months.

II.

We review “the ‘district court's interpretation of the Sentencing Guidelines de novo, the district court's application of the Sentencing Guidelines to the facts of [a] case for abuse of discretion, and the district court's factual findings for clear error.’ ” United States v. Franco–Flores, 558 F.3d 978, 980 (9th Cir.2009) (quoting United States v. Alvarez–Hernandez, 478 F.3d 1060, 1063 (9th Cir.2007)) (alteration in original). The “assessment of prior convictions in calculating a defendant's criminal history category is [also] reviewed de novo.” Id.

III.

Congress has set statutory minimum sentences for numerous drug crimes, but also enacted a “safety valve,” 18 U.S.C. § 3553(f), which permits courts to “disregard the statutory minimum in sentencing first-time nonviolent drug offenders who played a minor role in the offense and who ‘have made a good-faith effort to cooperate with the government.’ ” United States v. Shrestha, 86 F.3d 935, 938 (9th Cir.1996) (quoting United States v. Arrington, 73 F.3d 144, 147 (7th Cir.1996)). The purpose of the safety valve is “to rectify an inequity in this system, whereby more culpable defendants who could provide the Government with new or useful information about drug sources fared better ... than lower-level offenders, such as drug couriers or ‘mules,’ who typically have less knowledge.” Id. As the legislative history of the section states, “Ironically, [ ] for the very offenders who most warrant proportionally lower sentences—offenders that by guideline definitions are the least culpable—mandatory minimums generally operate to block the sentence from reflecting mitigating factors.” Id. (ci...