July 25, 2011
Fascinating split Ninth Circuit opinion holds federal courts must respect modified state sentence
The majority opinion in a fascinating federal sentencing ruling from the Ninth Circuit today in US v. Yepez, No. 09-50271 (9th Cir. July 25, 2011) (available here), begins this way:
“[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 (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 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.
A dissent by a district judge sitting by designation makes these points (among others):
I would hold that United States v. Alba-Flores, 577 F.3d 1104 (9th Cir. 2009), cert. denied, 130 S. Ct. 3344 (2010), controls here in both Yepez and Acosta-Montes. The Alba-Flores panel held that, because the defendant was serving a sentence of probation of more than one year at the time he committed his federal offense, he was properly assigned two criminal history points pursuant to U.S.S.G. § 4A1.1(d) and was disqualified from obtaining safety valve relief from the mandatory minimum sentence. 577 F.3d at 1111. The Court reached that holding by concluding that the concrete fact that the defendant was serving a sentence of probation of more than one year at the time of his federal offense was not altered by a state court’s subsequent nunc pro tunc order shortening his term of probation to less than one year....
Nor do I find persuasive the majority’s reliance on principles of comity and federalism. The conduct in these cases by trial counsel for Yepez and Acosta-Montes reeks of the “same odor of gaming the federal sentencing system” that Judge Fernandez noted in Alba-Flores. 577 F.3d at 1111....
The troubling effect of the majority’s holding is that, where convicted federal defendants are facing imposition of federal statutory mandatory minimum sentences in upcoming sentencing proceedings in federal court, it is a state court that will decide whether imposing that mandatory minimum is appropriate.
It will be interested to see if the feds seek en banc or even cert review of this ruling.
July 25, 2011 at 04:18 PM | Permalink
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Another laughable Ninth Circuit ruling destined for the scrap heap.
This type of manipulation is not new. Most state judges accede only because it is a facile way to be viewed as "the good guy" yet knowing that their action will have no practical impact in federal court.
Posted by: mjs | Jul 25, 2011 5:29:21 PM
The Guidelines state, "Two points are added if the defendant committed any part of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." The reality is that the defendant was on probation at the time of the federal offense. State law declares, however, that the sentence was void at that time. The guidelines also provide, "A number of jurisdictions have various procedures pursuant to which previous convictions may be set aside or the defendant may be pardoned for reasons unrelated to innocence or errors of law, e.g., in order to restore civil rights or to remove the stigma associated with a criminal conviction. Sentences resulting from such convictions are to be counted. However, expunged convictions are not counted. §4A1.2(j)." I would have to concede that the Sentencing Commission was clearly trying to avoid results like this one. Nevertheless, the Commission did not specifically account for it.
Still, the dissent's offense at trial counsel "gaming the federal sentencing system" demonstrates a profound lack of insight into the nature of federal guideline sentencing. Anyway, how would it be ethical for a lawyer _not_ to attempt this? It's not like it was done in secret, nor was the court or prosecution misled about what happened, and if it's successful, it can shave years off their client's sentence.
Finally, I have to agree with mjs that this case will probably be overturned by an en banc panel or the Supreme Court.
Posted by: Anonymous | Jul 26, 2011 12:00:58 AM
It probably won't be overturned. It would be a waste of time for this to be reconsidered en banc or by the Supreme Court.
Posted by: = | Jul 26, 2011 11:35:25 AM
I disagree with =. As the majority notes, its holding appears to conflict with opinions from the 8th and 10th circuits. I would not be surprised to see this one get at least en banc review. As a criminal defense lawyer, I like the result, but I have to say that the majority opinion is less than convincing.
Posted by: larrythered | Jul 26, 2011 12:24:22 PM
So what that there is a circuit split? It's perfectly reasonable to think that it won't get en banc review (as long as we both mean that it won't get the votes, not that some judges won't dissent from a denial of en banc), and certainly not SCOTUS review. There's no groundbreaking issue here. And since when is the 9th influenced by the 10th or the 8th? The Ninth sided with a state court residing in its judicial district, about that state court's decision about that state court's own probationer. There's not much for the Ninth to get in a huff about.
Posted by: = | Jul 26, 2011 12:50:30 PM
Good Information... Thanks for sharing.
Posted by: FDCPA | Jul 27, 2011 1:18:42 AM