Split Ninth Circuit en banc ruling rejects effort to qualify for safety-valve via state sentence modification

As reported in this post from back in July 2011, an interesting split Ninth Circuit panel decision in US v. Yepez concluded that federal courts must respect the modification of a state sentence at a subsequent federal sentencing.  The Ninth Circuit subsequently decided to review this matter en banc, and the en banc court today comes down the other way now in US v. Yepez, No. 09-50271 (9th Cir. Dec. 20, 2012) (available here).  Here is a summary of the ruling in Yepez as prepared by court staff:

Affirming one defendant’s federal drug sentence and vacating another, the en banc court held that a state court’s order terminating a defendant’s probation for a state offense “nunc pro tunc” as of the day before the defendant committed his federal crime cannot alter the fact that the defendant had the status of probationer when he committed his federal crime.

The en banc court concluded that the defendants therefore remained ineligible for safety valve relief under 18 U.S.C. § 3553(f) from the mandatory minimum sentence because they were properly assessed two criminal history points pursuant to U.S.S.G. § 4A1.1(d) for committing the federal crime “while under any criminal justice sentence, including probation.”

Dissenting, Judge Wardlaw (joined by Judges Pregerson, Reinhardt, Thomas, and W. Fletcher) wrote that because neither Congress, the safety valve provision, nor the Sentencing Guidelines address this question, fundamental principles of justice, federalism, and comity, as well as the rule of lenity and the parsimony principle of 18 U.S.C. § 3553(a), permit district courts to exercise their broad sentencing discretion when calculating criminal history scores for purposes of safety valve relief, and then to exercise that same discretion in determining the appropriate sentence length.

The per curiam majority opinion in Yepez runs only about six pages, while the spirited dissent runs more than 30 pages and provides a running start (complete with cites to Justice Scalia's new book) for a potential cert petition for the defendants.

Prior related posts:

• Fascinating split Ninth Circuit opinion holds federal courts must respect modified state sentence
• Ninth Circuit to review en banc whether federal courts must respect modified state sentence