FILED
United States Court of Appeals
Tenth Circuit
April 17, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-4124
PAUL PECH-ABOYTES, a/k/a
JAVIER SOLIS-ABOYTES,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:07-CR-00749-TS-2)
Jon D. Williams, Salt Lake City, Utah, for Defendant-Appellant.
Elizabethanne C. Stevens, Assistant United States Attorney, Salt Lake City, Utah,
(Brett L. Tolman, United States Attorney, with her on the brief), for Plaintiff-
Appellee.
Before BRISCOE, EBEL, and GORSUCH, Circuit Judges.
BRISCOE, Circuit Judge.
Defendant Paul Pech-Aboytes a/k/a Javier Solis-Aboytes (“Mr. Pech-
Aboytes”) was charged by indictment with one count of possession with intent to
distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Pursuant to a
plea agreement, Mr. Pech-Aboytes pleaded guilty to the charge. After his plea
but before his sentencing, Mr. Pech-Aboytes obtained a nunc pro tunc order from
a state court which he hoped would have the effect of reducing his criminal
history points. He was ultimately sentenced to a mandatory minimum term of 120
months’ imprisonment, based on the district court’s finding that Mr. Pech-
Aboytes’ criminal history category made him ineligible for “safety-valve” relief
under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2.
Mr. Pech-Aboytes appeals the district court’s failure to apply the safety-
valve provision. Specifically at issue is whether the district court erred in
rejecting the nunc pro tunc order Mr. Pech-Aboytes obtained for the purpose of
altering his prior probation expiration date so that his present crime of conviction
was not committed while he was on probation.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I
In 2007, Mr. Pech-Aboytes was charged in a one-count indictment with
violating 21 U.S.C. § 841(a)(1), possession with intent to distribute
methamphetamine. He entered into a plea agreement with the government to
plead guilty to the charge. When Mr. Pech-Aboytes entered his plea of guilty,
both parties believed he would qualify for safety-valve relief, based on the
parties’ belief that Mr. Pech-Aboytes did not have any criminal history and
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otherwise appeared to qualify.
After Mr. Pech-Aboytes’ plea hearing, a pre-sentence report (“PSR”) was
prepared. The PSR showed that Mr. Pech-Aboytes qualified for safety-valve
relief, and neither party objected to the PSR. However, six weeks later, the PSR
was updated through an addendum. The addendum showed a 2002 misdemeanor
conviction in a California state court, with a 36-month probation sentence. 1
Based on the discovery of this conviction, the PSR was modified to reflect one
criminal history point for the conviction and two criminal history points for Mr.
Pech-Aboytes having committed the methamphetamine offense at issue while on
probation. 2 A total of three criminal history points placed Mr. Pech-Aboytes in a
criminal history category of II, rendering him ineligible for safety-valve relief.
Following his receipt of the PSR addendum, Mr. Pech-Aboytes’ counsel
acted to limit the effect of Mr. Pech-Aboytes’ California state court conviction on
his impending federal sentence. Mr. Pech-Aboytes’ counsel describes his actions
as follows:
As a result of the addendum [to the PSR], counsel
for Defendant sought out a licensed, California attorney to
represent the Defendant before the state court that had
1
The misdemeanor conviction was for manufacturing government issued
CDL/ID(Commercial Drivers License/Identification).
2
Mr. Pech-Aboytes’ California state court probation was ongoing in 2007,
at the time of his methamphetamine crime, based on several probation revocations
and reinstatements. His probation termination date, after all the revocations and
reinstatements, was June 26, 2009.
3
placed the Defendant on probation. Defendant’s counsel
was able to locate an attorney in California and thereafter
sought ex parte permission from the United States District
Court to employ the California attorney for the specific
purpose of seeking an order that would ultimately render
the Defendant eligible for application of the safety valve.
The district court approved the Defendant’s request to pay
the California attorney for his services pursuant to 18
U.S.C. § 3006A.
. . . [P]ursuant to the motion of the Defendant filed
by the California attorney, Commissioner Michael A.
Leverson, Orange County Superior Court, entered an order
nunc pro tunc, over the objection of the State of California
prosecutor, terminating Defendant’s probation in the
California state court case as of September 30, 2007.
Aplt. Br. at 6-7 (internal citation omitted). The nunc pro tunc order was entered
on May 15, 2008, by the Superior Court of Orange County, California. 3 ROA
Vol. 1 Doc. 57-2.
A copy of the order terminating Mr. Pech-Aboytes’ probation was provided
to the United States Probation Office. A third modification to the PSR was then
prepared and provided to the parties on the day of the scheduled sentencing
hearing. The third modification removed the two criminal history points assessed
for the commission of the instant offense while on probation. This left Mr. Pech-
Aboytes with one criminal history point for his California misdemeanor, and the
PSR placed Mr. Pech-Aboytes in Criminal History Category I, rendering him
3
The California order states, in its entirety: “GOOD CAUSE APPEARING
THEREFOR: IT IS HEREBY ORDERED that probation in this case is terminated
nunc pro tunc as of September 30, 2007.” ROA Vol. 1 Doc. 57-2.
4
eligible for safety-valve relief. The district court continued the sentencing
hearing and directed the parties to brief whether Mr. Pech-Aboytes qualified for
safety-valve relief as a result of the California state court nunc pro tunc order.
After the briefing of the nunc pro tunc/safety-valve issue was completed,
the district court held the sentencing hearing. At that hearing, the district court
found that “defendant’s actions in shortening his probationary period for reasons
unrelated to his innocence or errors of law is not a valid basis for not counting his
sentences for criminal history purposes.” Id. Vol. 2 at 17. The district court
concluded Mr. Pech-Aboytes fell within Criminal History Category II and did not
qualify for safety-valve relief. The district court then sentenced Mr. Pech-
Aboytes to the 120-month mandatory minimum sentence.
Mr. Pech-Aboytes argues that the district court erred in assessing two
criminal history points for commission of his methamphetamine offense while on
probation from a prior conviction. Mr. Pech-Aboytes claims error because he had
successfully obtained the California nunc pro tunc order which stated his
probation terminated prior to the date of his methamphetamine offense. Mr.
Pech-Aboytes argues that had the district court found that he was not on probation
at the time of his methamphetamine offense, his low-end sentencing guidelines
range would have been 70 months’ imprisonment.
II
“When reviewing a district court’s application of the Sentencing
5
Guidelines, we review legal questions de novo and we review any factual findings
for clear error, giving due deference to the district court’s application of the
guidelines to the facts.” United States v. Doe, 398 F.3d 1254, 1257 (10th Cir.
2005); see also United States v. Altamirano-Quintero, 511 F.3d 1087, 1092 (10th
Cir. 2007) (“This court reviews de novo the district court’s statutory
interpretation of the safety-valve provision.”); United States v. Gonzalez-
Montoya, 161 F.3d 643, 651 (10th Cir. 1998) (“We review the district court’s
determination of a particular defendant’s eligibility for relief under § 3553(f) for
clear error. To the extent that the district court interpreted the ‘scope and
meaning’ of 3553(f)(5), we review its legal interpretation de novo.” (internal
citations omitted)).
Mr. Pech-Aboytes argues that the district court erred in its calculation of
his Guidelines sentence by failing to apply the safety-valve provisions of
U.S.S.G. § 5C1.2. It is the defendant’s burden to establish entitlement to a
reduction in sentence under § 5C1.2. United States v. Salazar-Samaniega, 361
F.3d 1271, 1277 (10th Cir. 2004). Section 5C1.2 requires the imposition of
safety-valve relief when certain criteria are met, one of which is that “the
defendant does not have more than 1 criminal history point, as determined under
the sentencing guidelines before application of subsection (b) of 4A1.3
(Departures Based on Inadequacy of Criminal History Category).” U.S.S.G. §
5C1.2(a)(1).
6
Specifically, Mr. Pech-Aboytes alleges error because of the district court’s
calculation of his criminal history points under U.S.S.G. § 4A1.1(d), which in
turn made him ineligible for relief under § 5C1.2(a)(1). Section 4A1.1(d) states
that two points should be added to a defendant’s criminal history “if the defendant
committed the instant offense while under any criminal justice sentence, including
probation, parole, supervised release, imprisonment, work release, or escape
status.”
The district court, at sentencing, relied on United States v. Martinez-
Cortez, 354 F.3d 830 (8th Cir. 2004). In Martinez-Cortez, the defendant pleaded
guilty to a methamphetamine offense under 21 U.S.C. § 841, and his presentence
report applied § 4A1.1(d) to assess the defendant two criminal history points for
being on probation when he committed his methamphetamine offense. Id. at 831.
After his guilty plea and initial presentence report, the defendant sought to
“modify his state sentences nunc pro tunc” for “the express purpose of avoiding a
criminal history point in his federal drug sentencing.” Id. The defendant
received a reduction of his probation term from the state court, but did not “seek
to withdraw his guilty pleas[,] and stipulated [that] his state convictions would
count for any later enhancements under state law.” Id. The district court
accepted the defendant’s eligibility for safety-valve relief and the government
appealed. Id.
The Eighth Circuit reversed the district court. The Eighth Circuit first
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noted that “[w]hether [the defendant] was under a criminal justice sentence for
purposes of § 4A1.1(d) is a question of federal law.” Id. at 832. The court then
stated the issue presented as follows: “The question then becomes whether the
Guidelines permitted the district court to disregard the fact of his actual sentence
because, for the sole purpose of obtaining favorable federal sentencing
consequences, [the defendant] had the probation period shortened after he served
it and after he pleaded guilty to the federal drug conspiracy.” Id.
In analyzing the issue, the court stated:
The Guidelines do permit courts to disregard some state
court convictions and sentences for the purposes of
criminal history. Specifically, the Guidelines direct courts
not to count sentences for “expunged convictions.”
U.S.S.G. § 4A1.2(j). Nevertheless, courts must count
sentences for convictions that, for reasons unrelated to
innocence or errors of law, are set aside or for which the
defendant is pardoned. Id. n.10. Here, it is undisputed
that [the defendant’s] state convictions were not expunged.
Rather, his probationary terms were reduced after the
probationary terms were served merely to obtain favorable
federal sentencing. If [the defendant’s] convictions had
been vacated for the express purpose of enabling him to
become eligible for the safety valve, the sentences would
have counted because the convictions would have been set
aside for reasons unrelated to his innocence or errors of
law. We conclude that, as a matter of federal law, [the
defendant’s] lesser step of modifying his sentences after
they were served for reasons unrelated to his innocence or
errors of law is not a valid basis for not counting the
sentences for criminal history purposes. Thus, when [the
defendant] committed the federal drug offense he remained
under a sentence of probation for the purposes of §
4A1.1(d) and the district court was required to assess two
criminal history points.
8
...
In sum, given the timing and purpose of [the defendant’s]
state sentence reductions, we believe the Guidelines
required the district court to conclude [the defendant] had
four criminal history points and thus was ineligible for the
safety valve. Accordingly, we reverse and remand for
imposition of the mandatory minimum sentence.
Id. at 832-33 (emphasis added) (internal case citations omitted). 4
We agree with the Eighth Circuit’s analysis in Martinez-Cortez. As the
Eighth Circuit notes, the Guidelines 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. Section 4A1.2(j) directs
district courts not to count “expunged convictions.” The application notes for
that section then state:
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.
4
Martinez-Cortez was a split panel decision. The dissent in Martinez-
Cortez disagreed with the majority’s conclusion that the state court’s
modifications were not valid, and found that the majority “fail[ed] to address the
fundamental principles of federalism and deference owed by federal courts to
state courts in processing their own criminal cases.” 354 F.3d at 833-35, 833 (J.
Lay dissenting).
9
U.S.S.G. § 4A1.2 n.10. 5 This Guidelines section and commentary direct the
district court to not count an expunged conviction in a defendant’s criminal
history, but to count a previous conviction even though it has been “set aside or . .
. pardoned for reasons unrelated to innocence or errors of law.” The implication
is that the district court should count previous convictions unless they have been
set aside because of a finding of innocence or legal error.
In addition, there is another application note, not cited by the Eighth
Circuit, that also contemplates this result. Application note 6 to § 4A1.2 states:
“Sentences resulting from convictions that (A) have been reversed or vacated
because of errors of law or because of subsequently discovered evidence
exonerating the defendant, or (B) have been ruled constitutionally invalid in a
prior case are not to be counted.” This application note provides further support
for the conclusion that a defendant’s obtaining a nunc pro tunc order which
shortened a probationary period for a reason unrelated to errors of law or
innocence is not a valid basis for negating otherwise applicable criminal history
points.
5
The Guidelines’ application notes are “binding in the sense of being
authoritative interpretations of the Guideline[s].” United States v. Robertson, 350
F.3d 1109, 1118 (10th Cir. 2003); see also United States v. Cruz-Alcala, 338 F.3d
1194, 1199 (10th Cir. 2003) (“Commentary that explains a [United States
Sentencing G]uideline is authoritative unless it violates the Constitution or a
federal statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.”).
10
The district court’s refusal to reduce Mr. Pech-Aboytes’ criminal history
points on the basis of the nunc pro tunc order obtained solely for that purpose also
squares with the stated goal of Chapter 4 of the Guidelines manual. The
introductory commentary to the criminal history section of Chapter 4 states:
. . . 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 recurrence. 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 limited likelihood of successful rehabilitation.
This commentary further indicates that the Guidelines are intended to capture, via
an increase in criminal history points, the very behavior Mr. Pech-Aboytes 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.
In addition to arguing that the Guidelines were misapplied, Mr. Pech-
Aboytes argues that the district court erred in calculating his criminal history
points because “federal courts must give full consideration to state court orders.”
Aplt. Br. at 13. The cases Mr. Pech-Aboytes cites as “examples” of this
conclusion are Custis v. United States, 511 U.S. 485 (1994), and Daniels v.
United States, 532 U.S. 374 (2001). Both of these cases were post-conviction
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relief appeals wherein the defendant challenged the constitutionality of his prior
state court convictions that were used in enhancing the defendant’s sentences. In
each case the Supreme Court noted that the defendant could attack his state court
sentences through the proper procedures and then apply for reopening of his
federal sentence. Custis, 511 U.S. at 497; Daniels, 532 at 382.
These cases have no applicability to the case at hand. Mr. Pech-Aboytes
does not challenge the validity of the state court conviction that gave rise to his
term of probation. Further, Mr. Pech-Aboytes does not argue that his probation
was terminated nunc pro tunc because of some infirmity with the underlying state
court conviction. Mr. Pech-Aboytes even concedes the validity of his state court
conviction which resulted in his term of probation. We are left then with a
federal sentencing question which is governed by federal law and the applicable
Guidelines provisions.
III
We AFFIRM the district court’s conclusion that Mr. Pech-Aboytes was
ineligible for “safety-valve” relief under 18 U.S.C. § 3553(f) and U.S.S.G. §
5C1.2. The district court correctly applied U.S.S.G. § 4A1.2(j) to conclude Mr.
Pech-Aboytes’ probationary term was shortened nunc pro tunc for reasons
unrelated to innocence or errors of law.
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