U.S. v. Yepez, No. 09-50271 (7-25-11) (Wardlaw with W. Fletcher; dissent by Timlin, Sr. D.J.).

A simple holding with broad implications. California state judges enjoy wide latitude to modify ongoing probationary terms under California law. As such, defendants facing federal mandatory sentences sometimes get the state judges to end probation right before the federal crime took place. This can make them eligible for the safety valve. In this case, one district court deferred to the state's nunc pro tunc termination; another did not. The 9th held that in calculating criminal history points for purposes of safety valve eligibility, district courts must credit state orders terminating probationary sentences. This accords with federal state comity, allows federal judges more discretion; and recognizes the flexibility of state judges who are aware of the consequences. The Guidelines do not forbid such an action. Moreover, these were not completed sentences; but were sentences were the state court still had supervisory authority. The 9th distinguishes precedent that does not allow state courts to alter completed probationary terms. Dissenting, Timlin argues that this is a shell game, and that the majority's reasoning should be controlled by 9th precedent, U.S. v. Alba-Flores, 577 F.3d 1104 (9th Cir. 2009), where the 9th held that completed probationary terms could be modified. Tilman argues that giving such power to state courts means that they will control federal mandatory minimum sentences. There is now a circuit split with the Eighth and Tenth Circuits on this issue.

Congratulations to Vince Brunkow of the Fed Defenders of San Diego.