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. § 8553(f)(2); U.S. Sentencing Guidelines Manual § 5C1.2 (2002) [hereinafter U.S.S.G.]. Pri- or 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 the Federal Probation Office that the state court modifications should be given effect. Thus, the Defendant qualified for relief under the safety valve and avoided the harsh mandatory minimum ten-year sentence under the Guidelines. The majority holds, without authority, that under the Guidelines the district court erred in refusing to look beyond the simple and obvious fact that the Defendant’s sentences had been modified in a state court proceeding. The majority reasons that as a matter of federal law, once the state sentences were served, there was no valid basis for refusing to count them for criminal history purposes. I must respectfully disagree.
The majority opinion, in all due respect, fails to address the fundamental principles of federalism 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. See generally Daniels v. United States, 532 *834U.S. 374, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001); Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). In assessing the length of a federal sentence, therefore, the sentencing court looks only at the prior state sentences as they exist at the time of sentencing. The majority also slights the fact that in the state court proceedings where the modification of the Defendant’s sentences took place, the state prosecutor was present and raised no opposition whatsoever. 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 presumption of regularity that the majority lightly casts aside.
The majority finds that these modifications were not valid for several reasons. First, the majority finds fault with Defendant’s counsel for not serving notice on the federal prosecutor that he was going to seek modification of the state court sentence. The record shows otherwise. Both the federal district judge and the United States Attorney were notified that the Defendant would seek further relief from his state sentences in state court. Furthermore, I seriously question whether a federal prosecutor would have standing in the state court to contest a prior state conviction. The majority also finds that the sentence modifications were made for the express purpose of changing the Defendant’s criminal history score under the Guidelines. Even taking this to be true, I respectfully submit that the reasons why the state judges modified the state terms of probation are immaterial. See United States v. Guthrie, 931 F.2d 564, 572 (9th Cir.1991) (“[T]he Guidelines are concerned only with the state court’s final determination, not with the soundness of its reasoning.”).1
To counter these concerns, the majority simply asserts that when the Defendant “committed his federal drug offense, he remained on probation for the purposes of § 4Al.l(d) and the district court was required to assess two criminal points.” This reasoning fails to give any effect or credit to the nunc pro tunc orders of the state courts. In fact, the only basis upon which the majority reaches its decision is Application Note 10 of § 4A1.2 of the Guidelines.2 Closer scrutiny reveals that this is no support for such a weighty federal sentence. There is no question that the state court’s modification of the probationary terms did not “expunge” his 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 control*835ling. The best argument one might make is that Application Note 10 is ambiguous on the issue of sentence modifications.3 Even if this be true, however, then the rule of lenity should apply and the state court modifications should be upheld. See United States v. Oetken, 241 F.3d 1057, 1060 (8th Cir.2001) (“Where there are two plausible readings of a [G]uideline provision, we apply the rule of lenity and give the defendant the benefit of the reading that results in the shorter sentence.”).
The majority also seems to place emphasis upon the fact that at the time the Defendant moved to modify his state court sentences, they had already been fully served. Thus, the majority argues that the state court cannot amend a sentence after it has already been served. This argument is a total non sequitur and fails to understand that a sentence already served can be attacked under available state post-conviction proceedings to avoid collateral consequences. See Daniels, 532 U.S. at 382, 121 S.Ct. 1578; Custis, 511 U.S. at 497, 114 S.Ct. 1732. This is precisely what happened in the present case. The state court modified the state court sentences nunc pro tunc, effectively meaning that in the eyes of the state court, they were the sentences actually imposed for conviction. It is clear that two respected state court judges, with the state prosecutor present, amended the term of probation. Under such circumstances, Judge Magnuson had no alternative other than to apply the safety valve.4
The majority opinion fails to provide proper respect for and deference to the state court’s modification of its own sentences. In my mind, the reasons offered by the majority are conclusory and do not provide a reasoned basis upon which to reverse the judgment of the federal district court. Judge Magnuson was correct and the majority is wrong.
. Similarly, the Government’s brief states that if the sentence modifications had some other basis such as proof of substantial assistance, the result would be different. Thus, the Government argues that the reason for modification should make the difference as to whether it can affect the federal sentence. But, as I have previously noted, this overlooks that the federal court cannot second guess the state courts as to the reason for modification but must only look at the result. Otherwise, Cus-tis and Daniels would have little meaning.
. Application Note 10 provides:
Convictions Set Aside or Defendant Pardoned. 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).
U.S.S.G. § 4A1.2, cmt. n.10.
. This argument was not raised before the federal district court at the time of sentencing; but even if it had been, it would not alter the sentence of the district court.
. The Government concedes that the Defendant would meet all other grounds to qualify for the safety valve:
[T]he parties agree Mr. Martinez-Cortez did not use violence or the credible threat of violence, nor did he possess a firearm; the offense did not result in death or serious bodily injury to any person; he played only a minor role in the offense; and he provided the Government with truthful information about his participation in the offense. See Guidelines § 5C1.2(a)(l)-(5); 18 U.S.C. § 3553(f)(l)-(5); Government's Sentencing Memorandum at 4.
Appellee’s Br. at 1 n.l.