U.S. v. Yepez, No. 09-50271 (12-20-12) (en banc: per curiam with dissent by Wardlaw and joined by Pregerson, Reinhardt, Thomas and Fletcher), decision available here.

Can a state judge try to do a little justice with a nunc pro tunc ruling?  "No," thunders the 9th, in an en banc per curiam chorus, because such an effort would shake the congressional intent of the "safety valve," and mock its limited purpose.  "Really," says the dissent, and what about vaunted comity and respect for the state judges?

This case here saw an effort by defendant to become eligible for "safety valve" consideration even though he was under probation for a small state conviction.  Although he was on probation when he committed the federal drug offense, he went back to state court, where the court granted him a nunc pro tunc ending of probation exactly one day before the commission of the federal offense.  Yes, this effort by a state judge, acting in a state capacity, and aware of the consequences, was an effort to evade the stringent bright line of safety valve consideration imposed by Congress.  It was an end run.  And as such, the 9th tackled it, and held it illegal.  The effort did not erase the fact that when the defendant committed the offense, he was under the sway of probation.  Don't trifle with that.  Judicial fiat will not be accepted.

The dissent looks to the interests of the state courts.  If the state judge, acting in his discretion, decides that the state's interests are served by ending probation before the stated offense, and the oh so cold calculations of criminal history points, why shouldn't the federal courts give credence?  If the district court thinks it is unwarranted, under the Guidelines, the court could sentence higher.  Here, though, the 9th should respect comity, and see it as all well that ends well, rather than decide it is a comity of errors.

Tough loss for valiant Vince Brunkow of the San Diego Federal Defenders.

U.S. v. Valdavinos-Torres, No. 11-50529 (12-20-12) (Zouhary, D.J. ND Ohio, with Goodwin and O'Scannlain).

The modified categorical approach can be cruel.  It was here.  The defendant faced a 1326 charge.  His prior was drug trafficking in California.  Ah, but the state statute is broad, and covers some drugs that are not on the federal schedule.  Alas, for defendant, he escapes the categorical aggravated felony enhancement, but falls prey to the modified analysis, because his plea references to count 2 of the complaint, as does the minute entry.  Count 2 specifically says "meth."  The 9th also finds that his failure to exhaust administrative remedies was not excused.

An important argument raised was the imposition of two years of SR.  Defendant argued that the imposition was substantively unreasonable, given that the Commission states that SR might not make sense in cases where deportation looms, and "ordinarily" should not impose it, although a court can for added deterrence. The issue here is whether the district court particularized the reasons.  The 9th found that the court did, since the defendant had family, and indeed, he came back because of his sick mother. The term of SR was designed to deter him further.  The need for particularized reasons though was stressed, and is a procedure that we should listen for.

Although Jim Fife of the San Diego Federal Defenders lost, he sure gave the prosecutor a run in the appeal.

 

U.S. v. Bustos-Ochoa, No. 11-50471 (09-18-12) (per curiam by Nelson, O'Scannlain and Singleton, Sr DJ D. Alaska)

In a 1326 conviction and appeal, the defendant tries to collateral attack the underlying immigration deportation. The problem is that the defendant was ineligible for relief given the drug trafficking. Nonetheless, the defendant argues that he still suffered prejudice because he may have gotten relief at the immigration proceeding when the government failed to enter the prior conviction.  As such, the immigration judge should have advised him of his rights for relief and he was prejudiced.  The 9th said it made no sense for the immigration judge to so advise because (1) it shifted the burden of proof to the government; and (2), it was pretty speculative, assuming a lot of "ifs, ands and buts".  As such, the defendant suffered no prejudice from the failure to advise of relief when the defendant had no basis for such relief.