Saturday, December 22, 2012

Case o' The Week: The Human Comity - Yepez, State Probation Terms, and Safety Valve

“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. The majority is wrong to cast aspersions on this salutary practice . . . . 

United States v. Alba-Flores, 577 F.3d 1104, 1112 (9th Cir. 2009) (Kozinski, Chief Judge, dissenting).

The Hon. Kim Wardlaw
   The Chief was spot on the mark when he dissented in Alba-Flores. As he presciently warned, "We shouldn't be so eager to override the hands-on judgment of two trial judges who have actually seen the defendant and are far more familiar with his need for punishment than we are.” Id.

  We’re nostalgic for those Alba-Flores insights, in a disappointing en banc decision that finds the CJ on the wrong side of an important comity battle. United States v. Yepez, 2012 WL 6621346 (9th Cir. Dec. 20, 2012) (en banc), decision available here.

Players: Per curiam decision joined by CJ Kozinski, Graber, Gould, Rawlinson, Callahan, and M. Smith. Dissent by Judge Wardlaw, joined by Judges Pregerson, Reinhardt, Thomas and W. Fletcher. Hard-fought appeal by San Diego AFD Vince Brunkow.

Facts: Defendants Yepez and Acosta-Montes were caught at the border with enough meth to trigger ten-year mand-min sentences. Id. at *1. Both had minor state priors, and both were on probation. Id. Because they were on probation, they were hit with an additional two criminal history points. Id. Those extra points made them ineligible for Safety Valve. Id. Before sentencing, however, state courts in both cases terminated probation nunc pro tunc, as of the day before the meth arrest. Id. One district court then gave Safety Valve, the second refused. Id. In a terrific decision, Judge Wardlaw held that comity required federal deference to the state court’s decision to terminate probation. 625 F.3d 1182 (9th Cir. 2011). En banc review followed.

Issue(s): (As phrased by the per curiam majority): “Yepez and Acosta-Montes argue that their nunc pro tunc orders effectively changed history, so that they were no longer on state probation at the time they committed their federal crimes and were, therefore, eligible for safety valve relief.” Id. at *1.

Held:The Guidelines assign a defendant two criminal history points if he ‘committed [a federal] offense while under any criminal justice sentence, including probation.’ U.S. Sentencing Guidelines Manual § 4A1.1(d) (emphasis added). By its plain language, the provision looks to a defendant's status at the time he commits the federal crime. Yepez was on probation while he was arrested for importing methamphetamine . . . Acosta–Montes was [also] on probation while he was arrested . . . . That a state court later deemed the probation terminated before the federal crime was committed can have no effect on a defendant's status at the moment he committed the federal crime. That termination may have beneficial consequences for the defendant under state law, but a court cannot alter the historical fact that the defendant had the status of probationer when he committed his federal crime.” Id.

Of Note: It is flatly unjust to sentence these two defendants to decade prison terms. That simple reality was recognized by both district courts, who complained of ten years for young men with minor prior convictions. Id. at *3 (Wardlaw, J. dissenting). In a compelling dissent, Judge Wardlaw decries the injustice of the per curiam decision. As she explains, the majority’s allegation that the state courts rewrote history is both “incorrect and unseemly.” Id. at *9. The dissent persuasively quotes the Chief’s own language from Alba-Flores to question a federal court’s rejection of a state court’s sentencing decision. Id. 

(Fair to speculate that CJ Kozinski authored the per curiam majority opinion, given its familiar tone ("And here is where it gets interesting", id. at *1) and its plug of Justice Scalia’s new book, Reading Law: The Interpretation of Legal Texts, id. at *2). 

Four jurists joined Judge Wardlaw’s righteous dissent: just one vote shy of the right result.
How to Use: A cert. petition is in the works. It still might be worth a visit to the Superior Court if your poor client finds himself victim of this Safety Valve injustice, by virtue of a state probationary term.
For Further Reading: Maybe Santa will bring you Reading Law: The Interpretation of Legal Texts (2012) by Justice Scalia and Bryan Garner. At a whopping 567 pages, you’ll have plenty of reading material during the holiday break. 

For a pithy defense take on this weighty tome, see the blog entry here. (“The fault in the [textualist] argument seems readily apparent to me. What becomes of all those nice people who get swept up in the gap between the passage of a poorly drafted, grossly unconstitutional law, and the time the Supreme Court gets around to fully addressing what the text really means? It appears they're just collateral damage under this theory, taking one for the team of principle.”)

Image of the Honorable Judge Kim McLane Wardlaw from

Image of “Reading Law” from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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