United States v. Yepez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 09-50271
v.  D.C. No.
3:08-cr-03499-
DAVID YEPEZ, LAB-1
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding

UNITED STATES OF AMERICA,  No. 09-50409
Plaintiff-Appellant,
v.  D.C. No.
3:08-cr-02350-L-1
AUDENAGO ACOSTA-MONTES,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding

Argued and Submitted
October 4, 2010—Pasadena, California

Filed July 25, 2011

9481
9482 UNITED STATES v. YEPEZ
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

*The Honorable Robert J. Timlin, Senior United States District Judge
for the Central District of California, sitting by designation.
9484 UNITED STATES v. YEPEZ

COUNSEL

Vincent J. Brunkow, Federal Defenders of San Diego Inc.,
San Diego, California, for Audenago Acosta-Montes.

Michael Edmond Burke, San Diego, California, for David
Yepez.

Karen P. Hewitt, United States Attorney, and Bruce R. Castet-
ter, Kyle W. Hoffman, and Timothy C. Perry, Assistant
United States Attorneys, San Diego, California, for the United
States of America.

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 (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
 UNITED STATES v. YEPEZ 9485
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 ren-
dering him ineligible for safety-valve relief from the other-
wise 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 tunc1 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 pro-
bationary 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 Califor-
nia 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,
1
“Nunc pro tunc” literally means “now for then,” and is “used in refer-
ence to an act to show that it has retroactive legal effect.” Bryan A. Gar-
ner, A Dictionary of Modern Legal Usage 607 (2d ed. 1995). The term
signifies that “a thing is done now, which shall have same legal force and
effect as if done at time when it ought to have been done.” United States
v. Allen, 153 F.3d 1037, 1044 (9th Cir. 1998) (quoting Black’s Law Dic-
tionary 964 (5th ed. 1979)).
9486 UNITED STATES v. YEPEZ
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 viola-
tion of 21 U.S.C. §§ 952 & 960. Yepez acknowledged that he
was subject to the ten year statutory minimum term of impris-
onment, 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 pur-
suant 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.
2
The district court observed that “someone who is younger, particularly
18, 19 years old, who hasn’t had the full set of experiences yet is more apt
to make mistakes of this type.”
3
Citing this language, the government argues that Yepez has waived the
right to appeal his sentence. “We consider de novo whether, pursuant to
a plea agreement, a defendant waived his right to appeal.” United States
v. Leniear, 574 F.3d 668, 672 (9th Cir. 2009) (citing United States v.
Speelman, 431 F.3d 1226, 1229 (9th Cir. 2005)). The scope of a knowing
and voluntary waiver “is demonstrated by the express language of the plea
agreement.” Id. (quoting United States v. Anglin, 215 F.3d 1064, 1066 (9th
Cir. 2000)). “Plea agreements are generally construed according to the
principles of contract law, and the government, as drafter, must be held to
an agreement’s literal terms.” Id. Here, because the government drafted
the plea agreement, we construe any ambiguities in favor of Yepez. See
United States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009).
Though Yepez waived his right to appeal a mandatory minimum sen-
tence, if it is applicable, he is arguing that the minimum is not applicable
because he is eligible for relief by operation of the state court order. The
waiver language is susceptible to two interpretations: first, that Yepez
waived his right to appeal the applicability determination as part of his
general waiver; and second, that Yepez did not waive his right to appeal
the applicability determination, but waived his right to appeal only a man-
datory minimum sentence imposed following that determination. Because
the language is ambiguous, we conclude that Yepez has not waived his
right to appeal the eligibility question.
 UNITED STATES v. YEPEZ 9487
§ 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 recommen-
dation, it noted that it would have recommended a sentence
of 57 months had Yepez qualified for safety valve relief. Fol-
lowing 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 fed-
eral 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 fed-
eral 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 sen-
tence 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
9488 UNITED STATES v. YEPEZ
was sentenced to one day in county jail and three years of pro-
bation. 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 shop-
lifting 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 sen-
tencing date, and then moved in state court for an order retro-
actively 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 govern-
ment’s objections, the district court stated that, being “brutally
honest,” it disagreed with “hamstringing a court with a man-
datory 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 impris-
onment 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.
 UNITED STATES v. YEPEZ 9489
II.

We review “the ‘district court’s interpretation of the Sen-
tencing 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 defen-
dant’s criminal history category is [also] reviewed de novo.”
Id.

III.

[1] 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 statu-
tory 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 govern-
ment.’ ” 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 infor-
mation 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 sec-
tion 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. (citing H.R. Rep. No. 103-
460, 103d Cong., 2d Sess., 1994 WL 107571 (1994)) (alter-
ation in original).

[2] A defendant is eligible for the safety valve when:
9490 UNITED STATES v. YEPEZ
(1) the defendant does not have more than 1 criminal
history point, as determined under the sentencing
guidelines;

(2) the defendant did not use violence or credible
threats of violence or possess a firearm or other dan-
gerous weapon (or induce another participant to do
so) in connection with the offense;

(3) the offense did not result in death or serious bod-
ily injury to any person;

(4) the defendant was not an organizer, leader, man-
ager, or supervisor of others in the offense, as deter-
mined under the sentencing guidelines and was not
engaged in a continuing criminal enterprise, as
defined in section 408 of the Controlled Substances
Act; and

(5) not later than the time of the sentencing hearing,
the defendant has truthfully provided to the Govern-
ment all information and evidence the defendant has
concerning the offense or offenses that were part of
the same course of conduct or of a common scheme
or plan, but the fact that the defendant has no rele-
vant or useful other information to provide or that
the Government is already aware of the information
shall not preclude a determination by the court that
the defendant has complied with this requirement.

18 U.S.C. § 3553(f).

[3] In both of these appeals, the government concedes that
the defendants meet four of these five requirements; the only
question is whether either of the defendants had more than
one criminal history point as defined by the Sentencing
Guidelines, see 18 U.S.C. § 3553(f)(1). Under the Guidelines,
a defendant receives two criminal history points “if the defen-
 UNITED STATES v. YEPEZ 9491
dant committed the instant offense while under any criminal
justice sentence, including probation . . . .” U.S.S.G.
§ 4A1.1(d). In other words, each defendant’s eligibility for
safety valve relief turns on whether he was on probation when
he committed his federal offense.

IV.

As the California courts have regularly and routinely recog-
nized for a century, courts in California retain and exercise
very broad supervisory authority over ongoing probationary
terms. See, e.g., People v. Howard, 946 P.2d 828, 835 (Cal.
1997); People v. Carbajal, 899 P.2d 67, 70 (Cal. 1995) (State
courts have “broad discretion to determine whether an eligible
defendant is suitable for probation and, if so, under what con-
ditions”) (citing Cal. Pen. Code § 1203.1(b)); People v. Cook-
son, 820 P.2d 278, 281 (Cal. 1991) (“A court may revoke or
modify a term of probation at any time before the expiration
of that term. This power to modify includes the power to
extend the probationary term.”) (citation omitted); People v.
Lippner, 26 P.2d 457, 458 (Cal. 1933) (“[T]he trial court is
clothed with a wide discretion in the granting and revoking of
the probation of a person convicted of crime.”); People v.
Kwizera, 93 Cal. Rptr. 2d 522, 523 (Ct. App. 2000) (“[T]he
trial court has authority to empower the probation department
with authority to supervise the probation conditions.”); In re
Gonzales, 118 Cal. Rptr. 69, 71 (Ct. App. 1974) (“A court is
vested with continuing discretion to continue a defendant on
probation or to revoke probation. The exercise of that discre-
tion is a judicial power manifested through the judge’s per-
sonal examination of the case before him . . . .”) (citations
omitted); People v. Buford, 117 Cal. Rptr. 333, 337 (Ct. App.
1974) (“Just as the Adult Authority has continuing jurisdic-
tion over its parolees, so the court has continuing jurisdiction
over its probationers.”) (internal citations omitted); People v.
Brown, 244 P.2d 702, 704 (Cal. Ct. App. 1952); People v.
O’Donnell, 174 P. 102, 104 (Cal. Ct. App. 1918) (“The
authority in a court to suspend a sentence or the execution
9492 UNITED STATES v. YEPEZ
thereof in a criminal case and liberating the defendant for a
certain period is wholly statutory, and the statute itself fur-
nishes the measure of the power which may thus be exer-
cised.”).

[4] The “wholly statutory,” Howard, 946 P.2d at 835,
wide-ranging authority of California state courts to supervise
— as well as to modify or revoke — ongoing probationary
terms is set forth in California Penal Code § 1203.3(a), which
provides:

The court shall have authority at any time during the
term of probation to revoke, modify, or change its
order of suspension of imposition or execution of
sentence. The court may at any time when the ends
of justice will be subserved thereby, and when the
good conduct and reform of the person so held on
probation shall warrant it, terminate the period of
probation, and discharge the person so held.

The State recognizes the important role of probation in the
criminal justice system. As the California Supreme Court has
explained, “[a]n integral and important part of the penological
plan of California is the discretionary retention in the trial
court of jurisdiction over the defendant and the cause of
action against him [or her] . . . by virtue of the probation pro-
cedures.” People v. Feyrer, 226 P.3d 998, 1007 (Cal. 2010)
(quoting People v. Banks, 348 P.2d 102, 111 (Cal. 1959))
(alteration in original). The California Supreme Court has also
observed that

[g]rant of probation is, of course, qualitatively differ-
ent from such traditional forms of punishment as
fines or imprisonment. Probation is neither “punish-
ment” nor a criminal “judgment.” Instead, courts
deem probation an act of clemency in lieu of punish-
ment, and its primary purpose is rehabilitative in
nature. . . .
 UNITED STATES v. YEPEZ 9493
[T]he authority to grant probation and to suspend
imposition or execution of sentence is wholly statu-
tory. During the probationary period, the court
retains jurisdiction over the defendant, and at any
time during that period the court may, subject to stat-
utory restrictions, modify the order suspending
imposition or execution of sentence.

Howard, 946 P.2d at 835 (internal citations omitted).

That California’s probation statutes reflect the understand-
ing that courts supervising probation will actually supervise
— that is, change the circumstances as the “ends of justice,”
see, e.g., Cal. Penal Code § 1203.3, and the behavior of the
supervised individuals demand — is highlighted by the state
courts’ recognition that authority under § 1203.3 immediately
ends once the period of probation is over. As the California
Supreme Court has repeatedly observed, “The cases [concern-
ing California Penal Code § 1203.3] have consistently taken
the view announced in People v. O’Donnell, 174 P. 102, 104
(Cal. Ct. App. 1918), that . . . ‘the court loses jurisdiction or
power to make an order revoking or modifying the order sus-
pending the imposition of sentence or the execution thereof
and admitting the defendant to probation after the probation-
ary period has expired.’ ” In re Griffin, 431 P.2d 625, 627
(Cal. 1967) (collecting cases).

[5] The California trial courts’ authority over ongoing
terms of probation granted by California Penal Code § 1203.3
explicitly differs from the power that California has given its
courts to set aside convictions under California Penal Code
§ 1203.4(a). Section 1203.4(a) governs only persons who
have already completed probation or for whom probation has
been terminated. It provides that

in any other case in which a court, in its discretion
and the interests of justice, determines that a defen-
dant should be granted the relief available under this
9494 UNITED STATES v. YEPEZ
section, the defendant shall, at any time after the ter-
mination of the period of probation, if he or she is
not then serving a sentence for any offense, on pro-
bation for any offense, or charged with the commis-
sion of any offense, be permitted by the court to
withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he or
she has been convicted after a plea of not guilty, the
court shall set aside the verdict of guilty; and, in
either case, the court shall thereupon dismiss the
accusations or information against the defendant and
except as noted below, he or she shall thereafter be
released from all penalties and disabilities resulting
from the offense of which he or she has been con-
victed . . . .

Unlike § 1203.3, which grants courts authority over ongoing
probationary terms, a “grant of relief under section 1203.4 is
intended to reward an individual who successfully completes
probation by mitigating some of the consequences of his con-
viction and, with a few exceptions, to restore him to his for-
mer status in society to the extent the Legislature has power
to do so.” People v. Mgebrov, 82 Cal. Rptr. 3d 778, 781 (Ct.
App. 2008) (emphasis added) (quoting People v. Field, 37
Cal. Rptr. 2d 803, 808 (Ct. App. 1995)).

V.

[6] Where, as here, state laws permit the modification of
ongoing terms of probation, principles of comity — what the
United States Supreme Court has recognized as “a bulwark of
the federal system,” Allen, 449 U.S. at 96 — require that the
federal courts should, where possible, recognize state court
actions terminating those probationary terms. Forty years ago,
the Supreme Court addressed the nature and importance of
comity between federal and state courts in its decision in
Younger v. Harris, 401 U.S. 37, 44 (1971):
 UNITED STATES v. YEPEZ 9495
The concept [of comity represents] a system in
which there is sensitivity to the legitimate interests
of both State and National Governments, and in
which the National Government, anxious though it
may be to vindicate and protect federal rights and
federal interests, always endeavors to do so in ways
that will not unduly interfere with the legitimate
activities of the States. It should never be forgotten
that this slogan, “Our Federalism,” born in the early
struggling days of our Union of States, occupies a
highly important place in our Nation’s history and its
future.

By crediting state trial court terminations of ongoing proba-
tionary terms, federal courts respect the fundamental
“[p]rinciples of comity and federalism [that] counsel against
substituting our judgment for that of the state courts” which
are actually supervising the individuals on probation. See Tay-
lor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004); see also
United States v. Alba-Flores, 577 F.3d 1104, 1112 (9th Cir.
2009) (Kozinski, C.J., dissenting) (“The federal system relies
heavily on state courts in sentencing defendants and it’s
wrong and pernicious to call these judgments into question
because the state judges may have taken into account the
effects on federal sentencing. State judges are often mindful
of the federal implications of their sentences, as well they
should be.”).

[7] Although it does not dictate our holding, requiring fed-
eral district courts to credit state court orders terminating or
modifying ongoing state probationary sentences enhances
sentencing discretion for those very courts. In sentencing
Yepez and Acosta-Montes, both district judges repeatedly
expressed their frustration with the criminal history calcula-
tions that eliminated eligibility for otherwise-warranted safety
valve relief. Our holding makes room for district courts facing
similar cases to impose individualized sentences consistent
with the principles set forth in 18 U.S.C. § 3553(a), rather
9496 UNITED STATES v. YEPEZ
than compelling judges, against their better judgment, to
impose sentences they find grossly excessive. That said, our
decision does not require judges to impose sentences below
the statutory mandatory minimums simply because defendants
in these circumstances are eligible for safety valve relief,
when lower sentences are not merited. Instead, as in all other
cases, a district court in imposing a sentence “must make an
individualized determination based on the facts.” United
States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc).
After correctly calculating the applicable Guidelines range,
see id., including factoring in safety valve eligibility, a district
court may impose an above-Guidelines sentence when it is
warranted. See, e.g., United States v. Cardenas-Juarez, 469
F.3d 1331, 1334 (9th Cir. 2006) (“When the statutory safety
valve requirements of § 3553(f) are met, ‘district courts still
“must consult [the] Guidelines and take them into account
when sentencing,” even though they now have the discretion
to impose non-Guidelines sentences.’ ”) (quoting United
States v. Cantrell, 433 F.3d 1269, 1278 (9th Cir. 2006)). And
because the state supervising judges are aware of the implica-
tions of modification orders in federal sentence, where they
believe the mandatory minimum is warranted they would be
unlikely to grant a request for such an order.

VI.

Rejecting Yepez’s argument that he was made eligible for
safety valve relief by the state termination order, the district
court reasoned that this result was dictated by the Application
Notes to U.S.S.G. § 4A1.2, in particularly Notes 6 and 10.
While these application notes address circumstances under
which certain prior convictions should not be counted for the
purposes of arriving at a guidelines sentence, however, neither
Note says anything about how courts should count ongoing
probationary terms modified or retroactively terminated by
state court orders.

According to Application Note 6, which concerns “Re-
versed, Vacated, or Invalidated convictions”:
 UNITED STATES v. YEPEZ 9497
Sentences resulting from convictions that (A) have
been reversed or vacated because of errors of law or
because of subsequently discovered evidence exon-
erating the defendant, or (B) have been ruled consti-
tutionally invalid in a prior case are not to be
counted. With respect to the current sentencing pro-
ceeding, this guideline and commentary do not con-
fer upon the defendant any right to attack collaterally
a prior conviction or sentence beyond any such
rights otherwise recognized in law (e.g., 21 U.S.C.
§ 851 expressly provides that a defendant may col-
laterally attack certain prior convictions).

U.S. Sentencing Guidelines Manual § 4A1.2 cmt. n.6 (2010).
Application Note 10, which concerns “Convictions Set Aside
or Defendant Pardoned,” states:

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 associ-
ated with a criminal conviction. Sentences resulting
from such convictions are to be counted. However,
expunged convictions are not counted. § 4A1.2(j).

U.S. Sentencing Guidelines Manual § 4A1.2 cmt. n.10 (2010).

Although the Guidelines themselves are advisory only, the
applicable Guidelines sentence must be calculated correctly.
See, e.g., Carty, 520 F.3d at 993. Commentary in the Applica-
tion Notes interpreting or explaining a guideline “is authorita-
tive unless it violates the Constitution or a federal statute, or
is inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993);
United States v. Bays, 589 F.3d 1035, 1037 (9th Cir. 2009).
Neither of these two application notes, however, addresses
how sentencing courts are to apply state trial court orders that
9498 UNITED STATES v. YEPEZ
modify or terminate retroactively ongoing probationary terms.
The state court orders concerning Yepez and Acosta-Montes
did not set aside, expunge, reverse, vacate, or invalidate the
convictions, nor did they pardon the defendants. See, e.g.,
United States v. Martinez-Cortez, 354 F.3d 830, 834 (8th Cir.
2004) (Lay, J., dissenting) (“There is no question that the state
court’s modification of the probationary terms did not
‘expunge’ [the defendant’s] convictions. Similarly, there is no
question that the modification of the probationary sentence
did not ‘set aside’ the state court convictions. Application
Note 10 simply does not address the modification of a prior
sentence and is therefore not controlling.”). Contrary to the
Yepez district court’s conclusion, Application Notes 6 and 10
to U.S.S.G. § 4A1.2 do not dictate the outcome of these two
appeals.

While Application Notes 6 and 10 do not address the situa-
tion before us, at least one other Application Note in the Com-
mentary undercuts the government’s argument that, in
calculating criminal history under the Guidelines judges
should take a “snapshot” of the situation at the exact moment
the federal offense is committed, and should not allow that
snapshot to be “photoshopped” later. Under the government’s
theory, courts applying the Guidelines should disregard what
occurs after the commission of the federal offense but before
sentencing for that offense. According to Application Note 1,
however:

“Prior sentence” means a sentence imposed prior to
sentencing on the instant offense, other than a sen-
tence for conduct that is part of the instant offense.
See § 4A1.2(a). A sentence imposed after the defen-
dant’s commencement of the instant offense, but
prior to sentencing on the instant offense, is a prior
sentence if it was for conduct other than conduct that
was part of the instant offense.

U.S. Sentencing Guidelines Manual § 4A1.2 cmt. n.1 (2010)
(emphasis added). In other words, in counting “prior sen-
 UNITED STATES v. YEPEZ 9499
tences,” courts are required to count at least some sentences
that had not yet been imposed at the time the defendant com-
mitted the instant offense, but that were imposed before sen-
tencing for the instant offense. Blanket acceptance of the
government’s “snapshot” theory is contrary to Application
Note 1, and so could result in procedural error. See, e.g.,
Carty, 520 F.3d at 993 (“It would be procedural error for a
district court to fail to calculate — or to calculate incorrectly
— the Guidelines range.”).

VII.

The government further argues that we are bound by the
holding in United States v. Alba-Flores, 577 F.3d 1104 (9th
Cir. 2009) to conclude that federal courts, when imposing
sentences, may not credit state orders modifying or terminat-
ing ongoing probationary terms. We disagree. In Alba-Flores,
the defendant’s prior sentence had been set aside under Cali-
fornia Penal Code § 1203.4 — and so the trial courts had not,
as here, exercised supervisory authority over ongoing proba-
tionary terms under California Penal Code § 1203.3. More
importantly, even giving nunc pro tunc effect to the state
court order under § 1203.4 in Alba-Flores, the defendant in
that case remained on probation at the time he committed his
federal offense. The Alba-Flores decision simply does not
address the question we confront in these appeals.

Eduardo Alba-Flores was arrested on July 4, 2006, as he
drove an automobile containing almost nine kilograms of
methamphetamine into the United States. Alba-Flores, 577
F.3d at 1105. On December 20, 2006, the district court
accepted Alba-Flores’s guilty plea to charges of importing
methamphetamine in violation of 21 U.S.C. §§ 952 and 960.
Id. at 1105-06. Previously, on February 22, 2006, Alba-Flores
had pleaded guilty in California state court to the misdemea-
nor of driving with a suspended or revoked license in viola-
tion of California Vehicle Code § 14601.1(a), and had been
sentenced to three years of probation. Id. at 1106. In the PSR
9500 UNITED STATES v. YEPEZ
it prepared for Alba-Flores’s sentencing, the Probation Office
indicated that this state conviction and sentence together gave
Alba-Flores more than one criminal history point, and ren-
dered him ineligible for safety-valve relief and subject to the
120-month statutory minimum term of imprisonment. Id.

Before Alba-Flores’s federal sentencing hearing, however,
Alba-Flores filed a motion in state court seeking to reduce his
state charge and terminate his state probation. Id. The
motion’s caption indicated that it was made pursuant to Cali-
fornia Penal Code §§ 1203.3 and 19.8. Id. At a state hearing
on February 13, 2007, the superior court “granted the motion,
but called it a California Penal Code § 1203.4 motion, rather
than a § 1203.3 motion.” Id. On the proposed order, the court
also hand-wrote the note, “Dismissed as a PC 1203.4.” Id.
The accompanying minute order indicated that the court had
granted the motion to dismiss and stated that the guilty plea
was “set aside; a plea of not guilty is ordered entered and the
count is dismissed pursuant to Penal Code section 1203.4.” Id.
This order thus

had the effect of reducing Alba-Flores’ prior misde-
meanor conviction to an infraction nunc pro tunc to
the date he had committed that violation and then
dismissing it, which ended Alba-Flores’ probation
also. Moreover, because that order was issued on
February 13, 2007, Alba-Flores’ probation termi-
nated nine days short of his having served one year
of it, which would have been February 22, 2007.

Id. Therefore, after operation of the nunc pro tunc order,
Alba-Flores’s probation was terminated on February 13, 2007
— almost one year after he pleaded guilty to the state offense
and more than seven months after he attempted to smuggle
methamphetamine into the United States.

Having obtained the nunc pro tunc order, Alba-Flores then
argued in district court that he was safety valve eligible. Id.
 UNITED STATES v. YEPEZ 9501
at 1107. The district court “accepted the government’s argu-
ment that the proceedings in the superior court after Alba-
Flores had committed his federal offense did not expunge his
state conviction or otherwise permit the reduction of his three
criminal history points, one for the state conviction itself and
two for his reoffending while on the term of probation arising
out of that conviction.” Id. Alba-Flores appealed, and we
affirmed. Chief Judge Kozinski dissented.

Alba-Flores made two discrete arguments: the first was,
“[i]n effect . . . that what used to be his state conviction and
sentence [had] now been expunged.” Alba-Flores, 577 F.3d at
1108. The Alba-Flores majority rejected this argument, con-
cluding that “California’s procedure under California Penal
Code § 1203.4” did not “count[ ] as an expungement” under
the Guidelines. Id. This conclusion is irrelevant to these
appeals: neither Acosta-Montes nor Yepez argue that their
probationary sentences were expunged, and neither modifica-
tion was made under California Penal Code § 1203.4.4 Cf.
Garcia-Lopez v. Ashcroft, 334 F.3d 840, 846 (9th Cir. 2003)
(“[A] state court expungement of a conviction is qualitatively
different from a state court order to classify an offense or
modify a sentence.”).
4
Having reached its conclusion regarding the effect of California Penal
Code § 1203.4, the Alba-Flores court addressed, but rejected, Alba-
Flores’s argument that the nunc pro tunc order was in fact issued under
§ 1203.3 instead. Alba-Flores, 577 F.3d at 1108-09. The majority then
observed that it would not have decided the case differently had the nunc
pro tunc order in fact been issued under § 1203.3. This conclusion is irrel-
evant to these appeals: how a court would have decided a question not
actually before it does not constitute binding precedent, because it is not
germane to the final outcome. See Miranda B. v. Kitzhaber, 328 F.3d
1181, 1186 (9th Cir. 2003) (per curiam) (“Where a panel confronts an
issue germane to the eventual resolution of the case, and resolves it after
reasoned consideration in a published opinion, that ruling becomes the law
of the circuit, regardless of whether doing so is necessary in some strict
logical sense.” (quoting United States v. Johnson, 256 F.3d 895, 914 (9th
Cir. 2001) (en banc) (Kozinski, J., concurring)). In any event, this discus-
sion came only in the context of addressing Alba-Flores’s expungement
argument.
9502 UNITED STATES v. YEPEZ
Alba-Flores’s second argument was that, as his sentence
was terminated nine days before he would have served a full
year of probation, he had not served and would never serve
a probationary sentence of more than a year, therefore, the
district court should not have counted his sentence of proba-
tion at all. See U.S.S.G. § 4A1.2(c)(1) (“Sentences . . . are
counted only if (A) the sentence was a term of probation of
more than one year or a term of imprisonment of at least thirty
days . . . .”). To address this argument, the Alba-Flores major-
ity was required to maneuver around our earlier decision in
United States v. Mejia, 559 F.3d 1113, 1116 (9th Cir. 2009),
in which we held that “[j]ust as a ‘term of imprisonment’
means ‘a term of actual confinement,’ a term of probation
means a term of actual probation.” See Alba-Flores, 577 F.3d
at 1109-10 (“Nevertheless, Mejia exerts a strong, though not
necessarily ineluctable, pull toward a conclusion that because
it ultimately turned out that by the date of his sentencing
Alba-Flores had not and never would serve over one year on
probation, the district court should not have added one point
to his criminal history score on account of his misdemea-
nor.”). The Alba-Flores majority concluded that it did not
need to address Alba-Flores’s argument directly, because “it
would make no difference to the ultimate conclusion that
Alba-Flores has more than one criminal history point.” Id. at
1110. Even if Alba-Flores avoided the point for the prior con-
viction itself, the majority wrote, “that does not affect the con-
crete fact that he was ‘under [a] criminal justice sentence’
when he committed his federal offense.” Alba-Flores, 577
F.3d at 1111. “[T]he proper inquiry,” the Alba-Flores court
added, “is whether Alba-Flores was actually under a ‘criminal
justice sentence’ when he committed the offense at hand. He
was.” Id.

In the end, then, the Alba-Flores majority’s decision was
predicated on the observation that, by any measure, and even
after operation of the nunc pro tunc order, Alba-Flores was on
state probation until February 13, 2007. As a result, Alba-
Flores was “under [a] criminal justice sentence” when he
 UNITED STATES v. YEPEZ 9503
committed his federal offense on July 4, 2006. See id. at
1106-07. Acosta-Montes and Yepez, in contrast, were not on
probation when they committed their federal offenses — at
least according to California, the state that imposed and was
monitoring their probation. Thus, the Alba-Flores court did
not address the question now before us, and its holding does
not govern the outcome of these appeals. See Proctor v.
Vishay Intertech. Inc., 584 F.3d 1208, 1226 (9th Cir. 2009)
(“[U]nstated assumptions on non-litigated issues are not pre-
cedential holdings binding future decisions.”) (quoting Saka-
moto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th
Cir. 1985)); E. & J. Gallo Winery v. EnCana Corp., 503 F.3d
1027, 1046 n.14 (9th Cir. 2007) (“Questions which merely
lurk in the record, neither brought to the attention of the court
nor ruled upon, are not to be considered as having [been] so
decided as to constitute precedents.” (quoting In re Larry’s
Apartment, L.L.C., 249 F.3d 832, 839 (9th Cir. 2001))).

The Alba-Flores majority subscribed to a broad principle
“eschew[ing] the notion that a state court could affect federal
sentencing by issuing a nunc pro tunc order after the concrete
facts pertinent to the federal sentencing were already in
place.” Alba-Flores, 577 F.3d at 1110. As we have said in the
past, however, “the doctrine of stare decisis concerns the
holdings of previous cases, not the rationales . . . . Insofar as
precedent is concerned, stare decisis is important only for the
decision, for the detailed legal consequence following a
detailed set of facts.” In re Osborne, 76 F.3d 306, 309 (9th
Cir. 1996); see also United States v. Johnson, 256 F.3d 895,
915 (9th Cir. 2001) (en banc) (Kozinski, J., concurring) (“Of
course, not every statement of law in every opinion is binding
on later panels. Where it is clear that a statement is made
casually and without analysis, where the statement is uttered
in passing without due consideration of the alternatives, or
where it is merely a prelude to another legal issue that com-
mands the panel’s full attention, it may be appropriate to re-
visit the issue in a later case.”). That the Alba-Flores majority
subscribed to a broad general principle does not mean that the
9504 UNITED STATES v. YEPEZ
majority’s formulation of that principle is binding precedent.
Indeed, we believe that an extension of the Alba-Flores ratio-
nale in the context of already completed probationary terms
to the context of ongoing state-supervised probation would
represent a further unwarranted intrusion into the states’ crim-
inal sentencing prerogatives, and would further offend a
proper understanding of comity and federalism.

Under any calculation, Alba-Flores was on probation when
he committed his federal offense, even after operation of the
state court’s § 1203.4 nunc pro tunc order. By contrast, after
operation of the state courts’ § 1203.3 nunc pro tunc orders in
their cases, Acosta-Montes and Yepez were no longer on pro-
bation when they committed their federal offenses. Therefore,
the majority’s holding in Alba-Flores as to the effect of state
court § 1203.4 orders does not dictate the outcome of these
two appeals.

VIII.

The government also points to United States v. Martinez-
Cortez, 354 F.3d 830 (8th Cir. 2004) and United States v.
Pech-Aboytes, 562 F.3d 1234 (10th Cir. 2009), two out-of-
circuit decisions (relied on by the Alba-Flores majority) hold-
ing that sentencing courts should not credit state nunc pro
tunc orders modifying terms of probation. Unlike either
Yepez or Acosta-Montes, however, the defendant in
Martinez-Cortez sought to modify already completed sen-
tences. Both the Eighth and Tenth Circuits, moreover, relied
on an incorrect view of the “implications” of the Application
Notes to U.S.S.G. § 4A1.2, and ultimately reached conclu-
sions not in fact supported by any authority.

In Martinez-Cortez, the defendant, Jerardo Martinez-
Cortez, pleaded guilty to conspiracy to distribute metham-
phetamine. Martinez-Cortez, 354 F.3d at 831. Martinez-
Cortez had two previous Minnesota state convictions: one for
leaving the scene of an accident, and one for driving while
 UNITED STATES v. YEPEZ 9505
intoxicated. Id. For the first, Martinez-Cortez had been sen-
tenced to ninety days in jail, with eighty-nine days suspended,
followed by one year of probation. Id. For the second, he had
been sentenced to thirty days in jail, with twenty-nine days
stayed, and placed on probation for two years. Id. Martinez-
Cortez was on probation from the DWI offense when he com-
mitted his federal drug offense, but had completed the proba-
tionary term by the time he was sentenced in federal court. Id.

After he pleaded guilty to his federal offense, but before
sentencing, Martinez-Cortez sought and received nunc pro
tunc orders from two state judges modifying his already-
completed probationary terms. Id. He sought and received a
reduction of his first probationary term (for leaving the scene
of an accident) from 365 days to 364 days “for the express
purpose of avoiding a criminal history point in his federal
drug sentencing.” Id. 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.’ ” Id.
The district court credited the nunc pro tunc orders, and found
that Martinez-Cortez was safety valve eligible; the Eighth Cir-
cuit reversed, with one judge dissenting. Id.

In concluding that Martinez-Cortez was not eligible for
safety valve relief, the Eighth Circuit majority concluded that,
as “a factual matter,” Martinez-Cortez had committed his fed-
eral drug offense “while he was on probation for the DWI
offense.” Id. at 832. The majority ultimately held that, as
Martinez-Cortez had already served his sentences before ask-
ing that they be modified nunc pro tunc, this was not one of
those situations in which the Sentencing Guidelines “permit
courts to disregard some state court convictions and sentences
for the purposes of criminal history.” Id. The majority con-
cluded 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
9506 UNITED STATES v. YEPEZ
a valid basis for not counting the sentences for criminal his-
tory purposes.” Id. (emphasis added).

Writing in dissent, Judge Lay criticized the majority deci-
sion as being incorrect and “without authority.” Id. at 833
(Lay, J. dissenting). “The majority opinion, in all due
respect,” he wrote

fails to address the fundamental principles of feder-
alism and deference owed by federal courts to state
courts in processing their own criminal cases. The
structure of the Guidelines evidences an intent on the
part of the Sentencing Commission to look to the
sentences actually imposed by state courts for state
criminal convictions when calculating a federal
defendant’s criminal history score. Consonant with
this idea, the Supreme Court has made clear that the
proper forum in which to attack state convictions
(and their attendant sentences) is a state court, not a
federal one. In assessing the length of a federal sen-
tence, therefore, the sentencing court looks only at
the prior state sentences as they exist at the time of
sentencing. . . . More importantly, the Defendant
appeared before two distinguished state court judges
who ordered the terms of probation modified. There
was no appeal from these modifications. The state
court proceedings thus carry with them a presump-
tion of regularity that the majority lightly casts aside.

Id. at 833-34 (internal citations omitted). The majority, he
concluded, “fails to provide proper respect for and deference
to the state court’s modification of its own sentences.” Id. at
835.

We agree with Judge Lay, and moreover find that
Martinez-Cortez is factually distinguishable from the two
appeals before us. What Martinez-Cortez sought to do by hav-
ing his already completed sentences modified by action of
 UNITED STATES v. YEPEZ 9507
state law is different from what either Yepez or Acosta-
Montez sought to do by asking the trial judges overseeing
their ongoing probationary terms to modify those terms. See,
e.g., Cal. Penal Code § 1203.3 (addressing the authority of
state courts during the term of probation “to revoke, modify,
or change its order of suspension of imposition or execution
of sentence”).

In Pech-Aboytes, the defendant, Paul Pech-Aboytes (a/k/a
Javier Solis-Aboytes), pleaded guilty in 2007 to one count of
possession with intent to distribute methamphetamine. 562
F.3d at 1235. In 2002, Pech-Aboytes had been convicted of
a misdemeanor in California state court for manufacturing
government-issued commercial drivers licenses, and had been
sentenced to thirty-six months of probation. Id. at 1236, 1236
n.1. Due to “several probation revocations and reinstate-
ments,” Pech-Aboytes’s California state probation was ongo-
ing in 2007, when he committed his federal drug offense. Id.
at 1236 & 1236 n.2. After he pleaded guilty, but before he
was sentenced, Pech-Aboytes sought and received a nunc pro
tunc order from a California state court terminating his proba-
tion as of September 30, 2007. Id. at 1236. At sentencing, the
district court (relying on the Eighth Circuit’s decision in
Martinez-Cortez) declined to credit the state nunc pro tunc
order, and found that Pech-Aboytes was not entitled to safety
valve relief; the Tenth Circuit affirmed. Id. at 1238-39.

In concluding that Pech-Aboytes was not eligible for
safety-valve relief, the Tenth Circuit cited Application Notes
6 and 10 to U.S.S.G. § 4A1.2, and reasoned that “the Guide-
lines are specific about which prior convictions and sentences
are counted in calculating a defendant’s criminal history
points, and which prior convictions and sentences are not.” Id.
at 1239. The Pech-Aboytes court then observed that “[t]he
implication” of Application Note 10 “is that the district court
should count previous convictions unless they have been set
aside because of a finding of innocence or legal error.” Id.
The Tenth Circuit also cited the introductory commentary to
9508 UNITED STATES v. YEPEZ
the criminal history section of Chapter 4 of the Sentencing
Guidelines:

A defendant with a record of prior criminal behavior
is more culpable than a first offender and thus
deserving of greater punishment. General deterrence
of criminal conduct dictates that a clear message be
sent to society that repeated criminal behavior will
aggravate the need for punishment with each recur-
rence. To protect the public from further crimes of
the particular defendant, the likelihood of recidivism
and future criminal behavior must be considered.
Repeated criminal behavior is an indicator of a lim-
ited likelihood of successful rehabilitation.

U.S. Sentencing Guidelines Manual § 4A intro. cmt. (2010).
This commentary, the court observed, “further indicates that
the Guidelines are intended to capture, via an increase in
criminal history points, the very behavior [the defendant] was
attempting to avoid: the commission of a crime while under
a probationary sentence. Such behavior is directly relevant to
the harsher, mandatory-minimum penalty imposed when the
safety-valve provision is inapplicable.” Pech-Aboytes, 562
F.3d at 1240.

We disagree with the Tenth Circuit’s reasoning. As previ-
ously noted, neither Application Note 6 nor Application Note
10 to U.S.S.G. § 4A1.2 actually addresses how sentencing
courts should view ongoing probationary terms that have been
modified by state orders. Given the specificity with which
these Application Notes dictate how courts should treat prior
sentences, and that neither note addresses nunc pro tunc
orders modifying ongoing probationary terms, much less the
specific procedure enacted by the state of California, it is not
clear why the Tenth Circuit thinks the “implication” of these
notes is that the only previous convictions that the district
court should not count are those that have been set aside
because of a finding of innocence or legal error. Indeed, it is
 UNITED STATES v. YEPEZ 9509
equally reasonable to read the Application Notes to exclude
ongoing probationary terms that have been shortened by state
modification orders from the types of sentences that should be
counted.

We are similarly unpersuaded by the Tenth Circuit’s cita-
tion to the introductory commentary to Chapter 4. That com-
mentary, which observes reasonably that defendants with
prior criminal records are more culpable than those without,
only supports refusing to credit these sorts of state court
orders if we begin with the assumption that the probationary
terms were ongoing at the times the defendants committed
their federal offenses. In other words, the Tenth Circuit’s rea-
soning is circular: district courts, the Tenth Circuit said,
should not credit nunc pro tunc orders modifying ongoing
probationary terms because doing so would prevent those
courts from effectively punishing defendants who commit
crimes while already on probation, and, the Tenth Circuit sug-
gests, it is clear that these sorts of defendants were on proba-
tion when they committed their federal crimes because courts
are not permitted to credit nunc pro tunc orders modifying
ongoing probationary terms. If we begin with the opposite
assumption, that due to the operation of the California state
court orders the defendants were not on probation at the times
they committed their federal offenses, then their behavior is
no longer the sort “the Guidelines are intended to capture, via
an increase in criminal history points,” Pech-Aboytes, 562
F.3d at 1240, namely: “the commission of a crime while
under a probationary sentence,” id.

Therefore, the Eighth Circuit’s decision in Martinez-Cortez
is distinguishable from these two appeals, and we, in any
event, disagree with the Eighth Circuit’s reasoning in that
case and the Tenth Circuit’s reasoning in Pech-Aboytes.

IX.

[8] We are faced with two competing historical and legal
realities: on the one hand, it is surely true that, at the times
9510 UNITED STATES v. YEPEZ
Acosta-Montes and Yepez committed their federal offenses,
the state of California viewed them as being on probation; it
is equally true that, under the California statute, neither of
them was in fact on probation at those times. Nothing in the
Guidelines, or in the cases cited by the parties, clearly indi-
cates which of these realities should trump the other for the
purposes of applying the sentencing safety valve. Ultimately,
respecting “the fundamental principles of federalism and def-
erence owed by federal courts to state courts in processing
their own criminal cases,” Martinez-Cortez, 354 F.3d at 833
(Lay, J., dissenting), and acknowledging that the “federal sys-
tem relies heavily on state courts in sentencing defendants and
it’s wrong and pernicious to call these judgments into ques-
tion because the state judges may have taken into account the
effects on federal sentencing,” Alba-Flores, 577 F.3d at 1112
(Kozinski, C.J., dissenting), we hold that, in applying the sen-
tencing safety valve, federal courts must credit the California
state orders under § 1203.3 modifying or terminating ongoing
probationary terms. This holding not only reinforces the prin-
ciple of comity, but also provides federal district courts with
the additional sentencing discretion that both of the sentenc-
ing courts in these cases desired. Accordingly, we affirm
Acosta-Montes’s sentence, vacate Yepez’s sentence, and
remand Yepez’s case for resentencing.

Appeal No. 09-50271: VACATED and REMANDED.

Appeal No. 09-50409: AFFIRMED.

TIMLIN, Senior District Judge, dissenting:

I respectfully dissent. This circuit treats “reasoning central
to a panel’s decision as binding later panels.” Garcia v.
Holder, 621 F.3d 906, 911 (9th Cir. 2010). “[W]here a panel
confronts an issue germane to the eventual resolution of the
case, and resolves it after reasoned consideration in a pub-
 UNITED STATES v. YEPEZ 9511
lished opinion, that ruling becomes the law of the circuit,
regardless of whether doing so is necessary in some strict log-
ical sense.” Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186
(9th Cir. 2003) (per curiam) (quoting United States v. John-
son, 256 F.3d 895, 914 (9th Cir. 2001) (en banc) (Kozinski,
J., concurring)).

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.1 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:

[It is a] concrete fact that he was “under [a] criminal
justice sentence” [pursuant to U.S.S.G. § 4A1.1(d)]
when he committed his federal offense. The later
state court order could not change that concrete fact.
It is the actual situation at that precise point in time,
not the situation at some earlier or later point that
controls. . . . [T]he proper inquiry is whether Alba-
Flores was actually under a “criminal justice sen-
tence” when he committed the offense at hand. He
was.
1
I concur with the majority’s holding that Yepez did not waive his right
to appeal imposition of the mandatory minimum sentence by the District
Court because the provision in the plea agreement concerning waiver of
appeal as to the sentence was ambiguous as discussed in footnote 3 of the
majority opinion.
9512 UNITED STATES v. YEPEZ
Id. Alba-Flores thus followed the Eighth and Tenth Circuits
in “eschew[ing] the notion that a state court could affect fed-
eral sentencing by issuing a nunc pro tunc order after the con-
crete facts pertinent to the federal sentencing were already in
place.” Id. at 1110-11 (discussing United States v. Martinez-
Cortez, 354 F.3d 830 (8th Cir. 2004) and United States v.
Pech-Aboytes, 562 F.3d 1234 (10th Cir. 2009)).

That issue was germane to the resolution of the case and
was resolved after reasoned consideration. Accordingly, I
believe Alba-Flores controls here.

Nor do I find persuasive the majority’s reliance on princi-
ples 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 Fer-
nandez noted in Alba-Flores. 577 F.3d at 1111. After pleading
guilty in federal court to importing methamphetamine in vio-
lation of federal law, Yepez and Acosta-Montes filed motions
with the state court that unabashedly sought nunc pro tunc ter-
mination of their probation for the explicit purpose of chang-
ing the outcome of their upcoming federal sentencings.2
Without explanation, the motions were granted.3
2
The majority uses frequently in its opinion the term “modification” or
“modify” regarding the state courts’ nunc pro tunc orders although it is
clear from the record that the state courts “terminated” probation nunc pro
tunc. Other panels have similarly used the term “modification” as includ-
ing the “termination” of probation, i.e., state courts supervising probation
may modify probation by terminating it. See Butler v. Curry, 528 F.3d
624, 646 (9th Cir. 2008) (“Under California probation law, . . . a judge
retains the authority to modify the terms of an individual’s probation at
any time, including terminating probation early . . .”). I, however, view
“modification” to be conceptually different from “termination” with
potentially different legal ramifications. Compare Black’s Law Dictionary
1609 (9th ed. 2009) (defining “termination” as “[t]he act of ending some-
thing”) with id. at 1095 (defining “modification” as “[a] change to some-
thing; an alteration”). For that reason, I will use the terms “termination”
or “terminate” instead of “modification” or “modify.”
3
I note that neither order terminating probation actually refers to Cali-
fornia Penal Code § 1203.3. As the majority does, I will consider for pur-
poses of my dissent the orders as made pursuant to § 1203.3.
 UNITED STATES v. YEPEZ 9513
The majority here attempts to mask the odor of gamesman-
ship with a novel conception of the relationship between fed-
eral and state courts. As the majority correctly notes, federal
courts should generally avoid interfering with state court pro-
ceedings. See Younger v. Harris, 401 U.S. 37, 44 (1971). But
it is also clear that state courts should generally avoid interfer-
ing with federal court proceedings. See Garamendi v. Execu-
tive Life Ins. Co., 21 Cal. Rptr. 2d 578, 590 n.20 (Cal. Ct.
App. 1993) (“Early in the history of our federal system, a gen-
eral rule was established that state and federal courts should
not interfere with or restrain each other’s proceeding.” (citing
Donovan v. Dallas, 377 U.S. 408, 412 (1964))); see also Atl.
Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S.
281, 295 (1970) (“[S]ome federal injunctive relief may be
necessary to prevent a state court from so interfering with a
federal court’s consideration or disposition of a case as to
seriously impair the federal court’s flexibility and authority to
decide that case.”).

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 sen-
tencing proceedings in federal court, it is a state court that will
decide whether imposing that mandatory minimum is appro-
priate. See Maj. Op. at 9496 (“[B]ecause the state supervis-
ing judges are aware of the implications of modification
orders in federal sentence[s], where they believe the manda-
tory minimum is warranted [for the federal crime] they would
be unlikely to grant a request for such an order.” (emphasis
added)). How the state court makes a fully informed decision
on whether imposing the mandatory minimum is warranted
for the defendant’s federal crime is unclear given that federal
prosecutors may not be able to participate in the state court
proceeding. See Martinez-Cortez, 354 F.3d at 834 (Lay, J.,
dissenting) (“I seriously question whether a federal prosecutor
would have standing in the state court to contest a prior state
conviction.”). Nonetheless, if the state court decides that the
“ends of justice,” see Cal. Penal Code § 1203.3(a), are served
9514 UNITED STATES v. YEPEZ
in its view by enabling the defendant to avoid the imposition
of a federal mandatory minimum sentence, that state court can
change retroactively by a nunc pro tunc order the facts appli-
cable to the defendant’s upcoming federal sentencing.4

To state it somewhat differently, the majority in effect has
by judicial fiat created an exception to one of five criteria
established by Congress and the President for the federal stat-
utory exception to a mandatory minimum sentence of impris-
onment for certain drug offenses, i.e., that a defendant’s
criminal history may not exceed one point under 18 U.S.C.
§ 3553(f). The majority opines that a state court may exercise
its broad discretion authorized by state statute, i.e., Cal. Penal
Code § 1203.3, to directly affect the application of federal
sentencing law by causing a federal defendant convicted of a
serious federal offense not to be subject to the sentence pro-
vided by Congress and the President.

Comity does not require us to allow federal policy determi-
nations regarding the punishment for federal crimes be
trumped by a state court’s perspective on whether justice is
served by the imposition of a mandatory minimum sentence
in a federal case.5 It is simply not a state court’s prerogative
4
Nunc pro tunc orders are generally limited to correcting clerical errors.
People v. Borja, 115 Cal. Rptr. 2d 728, 731 (Cal. Ct. App. 2002). Such
orders simply correct the record to properly reflect the court’s original
intentions at the time the earlier order was entered. See Singh v. Mukasey,
533 F.3d 1103, 1110 (9th Cir. 2008) (quoting United States v. Sumner,
226 F.3d 1005, 1009-10 (9th Cir. 2000)). The nunc pro tunc orders here
were not sought to correct clerical errors so as to properly reflect the state
court’s original intention when it set the term of probation. The orders
were sought in an attempt to retroactively change the fact that Yepez and
Acosta-Montes were under a criminal justice sentence of probation when
they committed the federal drug offenses for which they were awaiting
sentencing.
5
The majority’s understanding of comity is contrary to those cases that
actually involve analogous circumstances to those here, all of which reject
the contention that state courts may alter the outcome of a federal sentenc-
 UNITED STATES v. YEPEZ 9515
to decide whether a mandatory minimum sentence is appro-
priate for a convicted federal defendant awaiting his federal
sentencing. Like the majority in Alba-Flores, I would eschew
the notion that state courts can affect federal sentencing by
issuing nunc pro tunc orders after the concrete facts pertinent
to the federal sentencing are already in place.

Finally, the majority extols that its holding “not only rein-
forces the principle of comity, but also provides federal dis-
trict courts with the additional sentencing discretion that both
of the sentencing courts in these cases desired.” Maj. Op. at
9510. I question whether this Court has the authority to issue
a holding for the purpose of providing district courts with
additional sentencing discretion that it believes certain judges
desire for considering whether a mandatory minimum sen-
tence is appropriate. Congress and the President promulgate
by statute the sentences for federal offenses. It is my view that
when Congress and the President also provide that certain
sentences shall include a mandatory minimum length, the
judiciary as the Third Branch must apply that mandatory
minimum. It is not the role of the judiciary to carve out excep-
tions in individual cases that give the district court additional
discretion notwithstanding an applicable mandatory mini-
mum.

Accordingly, I would affirm the District Court’s sentence
in Yepez and would reverse the District Court’s sentence in
Acosta-Montes, ordering that case remanded for resentencing.

ing by issuing nunc pro tunc orders after the federal crime was committed.
See Alba-Flores, 577 F.3d at 1110-11; Martinez-Cortez, 354 F.3d at 832-
33; Pech-Aboytes, 562 F.3d at 1240. On the other hand, the holdings of
the cases relied upon by the majority are far afield from the situation we
face here. See Allen v. McCurry, 449 U.S. 90, 96 (1980) (holding that in
federal § 1983 actions federal courts must give preclusive effect to state
court judgments if the courts from that state would do so); Younger, 401
U.S. at 54 (holding that, absent unusual circumstances, federal courts
should not enjoin pending state criminal prosecutions); Taylor v. Maddox,
366 F.3d 992, 999, 1018 (9th Cir. 2004) (holding that state prisoner was
entitled to habeas relief).