*1 merits, however, plaintiffs plaintiffs Boy have flows to result of the theOn present a viable claim of utterly My standing failed Scouts’ views. views on were plaintiffs The never of contract. breach my set forth in dissent in Barnes-Wallace any to use of the facilities attempted City Diego, v. San Aquatic or the Center. The Camp Balboa (9th Cir.2008) (Kleinfeld, J., dissenting). given
Boy consequently were never Scouts for a group Revulsion so intense that one or to breach opportunity perform an cannot bear to be on man property duty plaintiffs. to these contractual cannot, age society, in a tolerant accordingly did not err The district court sufficiently harm deemed concrete as to dismissing in the contract claims. standing confer to sue. X. Conclusion ruling in
The district court erred Boy with the Scouts vio- City’s leases Clause, the
lated the California No Aid Clause, Preference and the
California No The sum-
federal Establishment Clause. mary judgment plaintiffs favor of the America, UNITED STATES of reversed, and the matter is these claims is Plaintiff-Appellee, in- remanded to the district court with summary judgment to enter structions defendants on these favor of Scout YEPEZ, Defendant-Appellant. David claims. The district court’s dismissal America, United States of equal protec- and federal plaintiffs’ state Plaintiff-Appellant, ground tion claims is affirmed on the plaintiffs standing lack to maintain Audenago Acosta-Montes, those claims. Defendant-Appellee. rulings The of the district court dismiss- plaintiffs’ claims for violation of the 09-50271, 09-50409. Nos. Diego Rights San Human ordinance and Appeals, Court of for breach of contract are affirmed. Ninth Circuit. part; AFFIRMED in REVERSED part; and REMANDED with instruc- En Argued and Submitted tions. Banc June 2012. Filed Dec. 2012.
KLEINFELD, Judge, Circuit concurring: join majority I opinion.
I write
separately only to note that we erred (by are now previous opinion which we
bound) addressing standing. plain- allege absolutely cognizable
tiffs no harm They simply prefer-
to themselves. have a plaintiffs’ Boy views about the
ence. do not estab- positions
Scouts’ institutional concrete harm standing,
lish because no *2 Hewitt, P. Attor-
Karen Castetter, ney, Bruce R. Assistant U.S. Chief, Attorney, Appellate Section Crimi- Division, Timothy Perry, nal C. As- Attorney, sistant U.S. Office of the U.S. Attorney for District of Cal- the Southern ifornia, CA, Diego, Appellee for Unit- San ed States. CA, Burke, Diego,
Michael
San
Edmund
Appellant
Yepez.
David
for
Hewitt,
Karen P.
States Attor-
United
Castetter,
ney, Bruce R.
Assistant U.S.
Chief,
Attorney,
Appellate Section Crimi-
Division,
Kyle
nal
W. Hoffman
Kanter,
Rebecca Suzanne
Assistant U.S.
Attorneys,
Attorney
for
Office
U.S.
California,
District of
San
the Southern
CA,
Diego,
Appellant
United States.
Brunkow,
Ap-
Vincent James
Assistant
Federal Defenders of
pellate Supervisor,
Inc.,
CA,
sentencing
disregard
court to
Diego,
Appel-
statutory
Diego,
San
San
Acosta-Montes.
minimum in
first-time
Audenago
lee
nonviol
drug
played
ent
offenders who
a minor
*3
offense
who
role
and
have made a
good-faith
cooperate
gov
effort to
with the
(inter
Shrestha,
ernment.”
(9th Cir.2010).1 Safety valve relief is a tempting drug carrot for mules who are but, mandatory a minimum facing trig to it, ger they they must show that meet five 3553(f); § KOZINSKI, requirements. 18 U.S.C. see ALEX Chief Before: PREGERSON, Alba-Flores, Judge, HARRY also United States REINHARDT, (9th Cir.2009). 1104, 1107 SIDNEY R. STEPHEN F.3d THOMAS, GRABER, KIM SUSAN P. problem and Yepez Acosta-Montes’s WARDLAW, WILLIAM A. McLANE requirements that one of these is that FLETCHER, GOULD, M. RONALD than 1 defendant “not have more criminal RAWLINSON, JOHNNIE B. history point, as determined under CALLAHAN, M. and CONSUELO guidelines.” 18 U.S.C. JR., SMITH, Judges. MILAN D. Circuit 3553(f)(1). § assign The Guidelines two history points criminal to defendants who by Judge Opinion;
Per Curiam
Dissent
any
crime
under
commit
“while
WARDLAW.
justice
including proba-
criminal
OPINION
Manual
tion.” U.S.
4Al.l(d).
they
were arrested for
When
PER CURIAM:
States,
carrying drugs into the United
Audenago Acosta-
1. David
relatively mi-
probation
both were on
for
Montes’s cases are variations on the same
DUI,
Acos-
crimes—Yepez
nor state
for
crossing into
theme. Both were arrested
shoplifting.
for
ta-Montes
car-
States from Mexico while
United
gets interesting:
it
methamphetamine
trigger
And here is where
rying enough
mandatory
minimum sentence.
ten-year
being
Prior to
sentenced
district
importing
Each
to one count of
pled guilty
court,
a state court to
each man convinced
methamphetamine.
“nunc
tunc” as
probation
terminate his
his federal
day
before he committed
sentencing,
but
pleas,
After the
before
1203.3(a)
crime. See Cal.Penal Code
they
they
ineligible
that
were
for
learned
(“The
authority
at
court shall have
Mandatory
Minimum Sen-
relief under
re-
during
the term of
time
“safety
provi-
Reform Act’s
valve”
tencing
voke,
change
its order of sus-
modify,
3553(f);
United
sion. See 18 U.S.C.
of sen-
imposition
or execution
Shrestha,
pension
States v.
tence.”).
Cir.1996).
argue
Yepez and Acosta-Montes
safety
allows “the
valve
judge
sentencing) permitted
argument
the district
Wipf rejects
that
1.
Acosta-Montes's
mandatory
give him a sentence below
"parsimony principle”
contained in 18
minimum,
(i.e.,
eligible
safety
3553(a)
even if he isn’t
that district courts shall
U.S.C.
sufficient,
Wipf
sentence.” United States
VACATED,
Acosta-Montes’s sentence is
Cir.2009);
1234, 1240
see
imposition of
Alba-Flores,
and his case is remanded for
(majori-
I.
safety
eligibility may
valve
credit
poses of
state and federal
“[Cjomity
pro-
between
retroactively terminating
state orders
as a
recognized
... has
bul-
been
bationary sentences. Because neither
system.” Allen v.
wark of the federal
safety
provision, 18
Congress,
valve
90, 96,101
S.Ct.
McCurry, 449 U.S.
3553(f),
nor
U.S.C.
(1980).
Penal Code
L.Ed.2d 308
California
ques-
Guidelines themselves address this
who are su-
permits
1203.3
tion,
principles
I submit
fundamental
pro-
on state
pervising
placed
individuals
federalism,
justice,
comity,
as well
retroactively
terminate
the terms
bation to
lenity
parsimony
rule of
and the
as the
previously
to which
had
3553(a),
permit
principle of 18 U.S.C.
Each of
sentenced those defendants.
to exercise their broad sen-
district courts
appeals
defendants in these consolidated
calculating crimi-
tencing discretion when
serving
such a
sentence
purposes
nal
scores for
pleaded guilty
when he committed and
relief, and then to exercise that same
charge
smuggling methamphet-
in determining
appropriate
discretion
into the
States. Before sen-
amine
United
length.
sentence
however,
tencing
charge,
on the federal
*6
obtained a modification or-
each defendant
Yepez
A. David
Penal Code
pursuant
der
California
18, 2007,
July
Yepez, who was
On
David
retroactively
§
terminated his
1203.3
old,
years
just
eighteen
pleaded
then
over
sentence as of the
probationary
state-court
driving
state court to
guilty
California
crime.
day before he committed his federal
(“DUI”) in
under the influence of alcohol
expressly argued
Each filed a motion that
Code
violation of California Vehicle
judge supervising him that
to the state
23152(b),
placed
probation,
and was
failure to terminate the state
years.
a
of three
On
initially
period
for
substantially
term would
increase his fed-
16, 2008, Yepez,
just
then
over
September
by rendering him
sentencing exposure
eral
old,
twenty years
tried to enter the United
from the
ineligible valve relief
driving
from Mexico while
a vehicle
States
ten-year
statutory
applicable
otherwise
kilograms
more than seven
containing
mandatory
Though
minimum.
each feder-
arrest,
After
Ye-
methamphetamine.
his
that the
judge
al district court
observed
money
pez explained that he needed
mandatory
grossly
minimum sentence was
he believed to
agreed
smuggle
had
what
excessive,
judge
in Acosta-Montes’s
marijuana.
As the district court later
to the state court’s nunc
case deferred
found, crediting
agents’
the border
testi-
tunc1 termination of
calculat-
demeanor,
Yepez’s
Yepez was
mony as to
criminal
scores while the
his
“marijuana”
to discover that the
judge Yepez’s
case did not. Before us is
“shocked”
literally
legal
and effect as if done at
1. "Nunc
tunc”
means "now for
have same
force
then,”
in reference to an act to
ought
and is "used
Unit-
time when it
to have been done."
legal
Allen,
show that
it has retroactive
effect.”
ed
1044
States
Garner,
Bryan
Dictionary
Le-
A.
A
Modem
Cir.1998)
Dictionary
(quoting Black’s Law
(2d
1995).
signi-
gal Usage
The term
ed.
1979)).
(5th ed.
now,
thing
which
fies that "a
is done
shall
offense,
his federal
so
No- when he committed
On
methamphetamine.2
in fact
than 1 criminal
4, 2008,
plea agree-
to a
he did not have “more
pursuant
vember
3553(f)(1).
mag-
ment,
guilty before
Yepez pleaded
history point.”
U.S.C.
importing
count of
judge to one
government argued
istrate
in violation of U.S.C.
methamphetamine
fact
could not rewrite the historical
court
acknowledged
Yepez
§§
and 960.
offense,
time of the federal
at the
statutory
ten-year
subject to the
he was
probation. The
Yepez had been on state
imprisonment,
term of
minimum
mandatory mini-
imposed
district
“unless
right
appeal
waived his
imprison-
120 months
mum sentence of
above
a custodial sentence
imposes
Court
that a 63 month
despite
ment
its view
high
guideline
end of the
greater of the
appro-
was the
imprisonment
sentence of
by the Government
recommended
range
stated, “I
The court
priate sentence.
at the time of
agreement
to this
pursuant
10-year
Mr.
give
wouldn’t
mini-
statutory mandatory
sentencing or
me, if I
up
if it was
had discretion.
tence
term,
applicable.”
if
mum
dispropor-
I think that’s
do it.
Wouldn’t
February
Presentence
In its
background, but that’s
given
tionate
(“PSR”),
Report
the United
Investigation
I
it.
I
at issue....
don’t like
what’s
that Ye-
concluded
States Probation Office
it....
I have
really
[this
don’t like
safety valve relief
ineligible for
pez was
I had to.
because I felt
like
sentence]
3553(f).
The Probation
U.S.C.
under 18
only reason.”
That’s the
history points
assigned two
Office
4Al.l(d)
Yepez’s
S.G.
under U.S.
Audenago
B.
Acosta-Montes
while on
of the offense
commission
Acosta-Montes,
Audenago
conviction, and
2007 DUI
tion for his
resident,
permanent
was convicted
lawful
ten-year man-
therefore recommended
state court of one count
California
gov-
minimum sentence. While
datory
from a
shoplifting
theft for
misdemeanor
recommendation,
agreed with the
ernment
store,
to one
Target
and was sentenced
it would have recommended
it noted that
pro-
county jail
years
and three
day in
*7
Yepez qualified
had
sentence of 57 months
7, 2008,
May
Acosta-Montes
On
bation.
Following disclo-
safety
valve relief.
near
to enter the United States
attempted
PSR,
nunc
moved for
of the
sure
Ysidro, California,
driving a
while
San
under
probation
tunc termination of
containing approximately 3.30
pickup truck
April
On
Penal Code
1203.3.
California
On Octo-
methamphetamine.
kilograms
22, 2009,
supervising his
judge
2, 2008,
agreement,
plea
to a
pursuant
ber
proba-
Yepez’s ongoing
probation ordered
guilty to one count
pleaded
Acosta-Montes
15, 2008,
September
tion terminated as of
in vio-
methamphetamine
importation
his feder-
day
Yepez committed
before
§§
21
952 and 960.
lation of U.S.C.
ap-
not
did
prosecutors
al offense. State
this order.
peal from
concluded
The Probation Office
safety
ineligible
Acosta-Montes
18,
sentencing
May
2009 federal
At his
committed
when he
valve relief because
objected
sentencing
to the
hearing, Yepez
on
offense he remained
the federal
recommendation,
the state-
arguing that
conviction, and so
shoplifting
tion from his
eligi-
him
tunc order made
court
history point.
one criminal
had more than
by oper-
safety valve relief because
ble for
accordingly recommended
law he was government
ation of state
yet
experiences
full set of
hasn’t had the
who
observed that "someone
2. The district court
old,
type.”
apt
of this
to make mistakes
years
is more
particularly
19
younger,
who is
vacating
mini-
statutory mandatory
Yepez’s
Montes’s sentence and
ten-year
imprisonment.
Yepez,
mum
Acosta-
v.
term
sentence. United States
(9th Cir.2011) (District
a
sought
and received
continuance
Montes
date,
and then moved
of his
Timlin,3
Judge
dissenting).
panel
Our
de
retroactively
an
ter-
state court for
order
majority
got
right,
cision
it
but
of the
6, 2008,
May
minating
active
of our court voted to rehear
day
committed the federal of-
before he
banc, largely
the cases en
due to their
1, 2009, the state court
April
fense. On
potential conflict with
motion over the
granted Acosta-Montes’s
(9th
Alba-Flores,
Cir.2009),
At Acosta-Montes’s 2009 sen- tencing hearing, the district court credited Congress statutory has set minimum modifying on- the order Acosta-Montes’s crimes, drug sentences for numerous but term, going probationary and concluded valve,” “safety has also enacted a safety eligi- Acosta-Montes was 3553(f), permits U.S.C. which courts to Responding government’s ble. to the ob- statutory minimum in “disregard the sen that, jections, the district court stated be- tencing drug first-time nonviolent offend honest,” “brutally disagreed it played ers who a minor role the offense mandatory with a “hamstringing court good-faith and who ‘have made a effort to minimum that.” where facts don’t deserve ” cooperate government.’ with the United explained given The court the nature Shrestha, States v. 86 F.3d offense, of Acosta-Montes’s the nonviolent Cir.1996) (quoting Arring United States v. record, nature of Acosta-Montes’s (7th Cir.1996)). ton, solely of of- which consisted misdemeanor purpose rectify valve is “to an fenses, personal cir- and Acosta-Montes’s inequity system, whereby more cul cumstances, ten-year imprison- term of pable provide defendants who could far high. ment was too “The defendant Government with new or useful informa conduct,” isn’t free of criminal drug tion about sources fared better ... observed, productiye “but he has been a offenders, drug than lower-level such as provided family worker that has for his ‘mules,’ typically who couriers have less and children.” The court knowledge.” legislative history Id. Its imprisonment tence of of 46 months. provides, “Ironically, very for the [] of *8 fenders who warrant proportionally most
II. by guide lower sentences'—offenders that government appealed Acosta- culpable— line definitions are the least below-mandatory Montes’s minimum sen- mandatory generally mínimums operate to tence. Yepez appealed also block the from reflecting mitigat sentence arguing that the district court erred in ing (citing Id. H.R. Rep. factors.” No. declining give to effect to the court’s 103-460, Sess., Cong., 103d 2d 1994 WL tune order. A divided three- (1994))(alteration original). 107571 judge of panel this court consolidated the A purposes eligible two cases for the of defendant for the disposition opinion affirming and issued an Aeosta- valve where: Timlin, California, sitting by designation. 3. The J. Honorable Robert Senior District of Judge United States District for the Central
1095 (1) probation not when he committed his federal does have more the defendant offense. history point, 1 criminal as deter- than sentencing guidelines; under the
mined III. (2) not use or defendant did violence the As the regularly California courts have violence or possess threats of credible routinely (or recognized for a century, dangerous weapon firearm or other courts in so) California retain and exercise to participant do induce another very authority broad over supervisory on offense; the connection with See, going probationary e.g., terms. Peo (3) not result in or the offense did death Howard, 1081, ple v. 68 16 Cal.4th Cal. any bodily injury person; serious 870, 828, (1997); Rptr.2d 946 P.2d 835 Peo (4) an organizer, was not the defendant Carbajal, 1114, ple v. 10 43 Cal.4th Cal. leader, manager, supervisor or of others (1995) 681, 67, Rptr.2d (noting 899 P.2d 70 offense, as determined under the that state courts have “broad discretion to sentencing guidelines and was not en- eligible determine whether an defendant is gaged continuing in a criminal enter- and, so, suitable for if probation under prise, defined in section 408 of the conditions”) (citing what Cal.Penal Code Act; and Controlled Substances 1203.1(b)); Cookson, v. 54 People Cal.3d (5) time later than the of the sen- not 1091, 278, 2 Cal.Rptr.2d 820 P.2d hearing, the defendant has tencing (1991) (“A modify may court revoke or truthfully provided to Government probation before term time all information and evidence the defen- expiration power of that term. This of- concerning dant has offense or modify power to extend includes the part of the course fenses that were same term.”) (citation omitted); or of a common or conduct scheme 395, 26 People Lippner, 219 Cal. P.2d that the has plan, the fact defendant but (1933) (“[T]he 457, 458 trial court no other information relevant useful grant clothed with in the a wide discretion or that the Government is provide revoking probation of a already aware of the information shall crime.”); person People convicted preclude determination Kwizera, Cal.App.4th 93 Cal. complied the defendant has (2000) (“[T]he trial court Rptr.2d requirement. with this authority empower probation has 3553(f). 18 U.S.C. department authority supervise with appeals, is no each these there Gonzales, conditions.”); In re question that the defendants meet four (1974) Cal.App.3d Cal.Rptr. these truthful requirements, including five (“A continuing court is discre vested government cooperation; only question tion to a defendant on continue had is whether either of defendants revoke The exercise of probation. or to history point more one criminal “as than judicial power that discretion is a manifest determined under the Guide- through examina judge’s personal ed 3553(f)(1). him....”) (citations lines.” 18 U.S.C. Under *9 tion of case before Guidelines, a defendant receives two crimi- omitted); Cal.App.3d 42 People Buford, v. (“Just (1974) nal “if the com- points 333, defendant 975, Cal-Rptr. 117 337 any while juris mitted the instant offense under continuing Authority the Adult has justice including proba- over so the court has parolees, diction its 4Al.l(d). § In other continuing jurisdiction probation tion....” U.S.S.G. over its ers.”) (citations omitted); Brown, words, People v. eligibility each defendant’s for safe- 702, 406, 244 P.2d Cal.App.2d 111 704 ty relief turns on whether he was on 1096
(1952); O’Donnell, is, course, People Cal.App. [g]rant probation 37 quali- (1918) (“The 192, 102, P. authority 174 104 tatively different from such traditional suspend in a court to a sentence or the punishment forms of or impris- as fines execution thereof in a criminal case and “punish- onment. Probation is neither liberating peri the defendant for a certain “judgment.” ment” nor a criminal In- wholly statutory, od is and the statute stead, probation courts deem an act of power itself furnishes the measure of the clemency punishment, in lieu of and its exercised.”). may which thus be primary purpose is rehabilitative in na- ture .... Howard, “wholly statutory,” The 68 Cal. 870, 835,
Rptr.2d authority grant probation 946 P.2d at wide-ranging [T]he and authority of California state courts to to suspend imposition su or execution of pervise—as modify well as to or revoke— wholly statutory. During sentence is ongoing probationary terms is set forth in probationary period, the court re- 1203.3(a), § California Penal Code which jurisdiction defendant, tains over provides: at any during period time authority any
The court shall have
at
may, subject
statutory
restric-
during
probation
tions,
time
the term of
modify the order
im-
suspending
revoke, modify,
change
or
its order of
position or execution of sentence.
suspension
imposition
or execution of Howard,
870,
Cal.Rptr.2d
68
946 P.2d at
may
sentence. The court
time
(internal
omitted).
835
citations
justice
when the
ends
will be sub-
probation
California’s
statutes
reflect
thereby,
served
and when the good con-
understanding
supervising
person
duct and reform of the
so held on
probation
i.e.,
actually supervise,
will
it,
probation shall warrant
terminate the
change the circumstances to serve the
period of probation,
discharge
see,
justice,”
e.g.,
“ends
CaLPenal Code
person so held.
1203.3,
§
probation
and terminate
when
recognizes
important
The State
role of
“good
warranted
conduct and re-
justice
in the criminal
system.
form” of
supervised
individuals.
Id.
Supreme
As the California
Court has ex
supervisory
The
role of the state sentenc-
plained,
integral
important
part
“[a]n
highlighted by
courts is
penological
plan of California is the
recognition
courts’
authority
under
discretionary
retention
the trial court of
immediately
1203.3
ends
period
once the
jurisdiction over the defendant and the
of probation is over.4
him
against
cause of action
... by
[or her]
trial
authority
California
courts’
virtue of
probation procedures.”
Peo
over ongoing
probation granted
terms of
426,
ple
Feyrer,
48 Cal.4th
106 Cal.
California Penal
518,
(2010)
explicit-
Code
1203.3
Rptr.3d
998,
226 P.3d
1007
ly
Banks,
power
differs from the
(quoting
370,
that California
People v.
1
Cal.2d
669,
102,
(1959))
Cal.Rptr.
given
has
its courts to
348 P.2d
set aside convictions
(alteration
1203.4(a).
in original).
under
California Su
California Penal Code
1203.4(a)
preme Court has also observed that a
governs only persons
Section
Supreme
4. The
repeated
suspending
imposition
California
Court has
order
of sentence
ly
[concerning
observed: "The cases
Califor
admitting
or the execution thereof and
consistently
nia Penal Code
1203.3] have
defendant to
after the
"
taken
nell,
People
the view announced in
v. O’Don
period
expired.'
Griffin,
has
In re
67 Cal.2d
(1918),
Cal.App.
174 P.
(1967)
Cal.Rptr.
431 P.2d
jurisdiction
that ...
'the
power
court loses
cases).
(collecting
*10
revoking modifying
to make an order
or
the
relief
section 1203.4is intended to
probation or
of
under
completed
already
have
who
successfully
reward an individual who
com
been terminated.
probation has
for whom
probation by mitigating some of the
pletes
It provides
and,
consequences of his conviction
court,
in which a
in its
any
other case
for
exceptions,
few
to restore him to his
justice,
of
and the interests
discretion
to
society
mer
the extent
the
status
should be
that a defendant
determines
do
Legislature
power
People
has
to
so.”
the
available under
relief
granted
shall,
Cal.App.4th
section,
Mgebrov, 166
Cal.
any
time
the defendant
(2008)
added)
period
Rptr.3d
(emphasis
of
termination of the
after the
Field,
(quoting People
Cal.App.4th
if
not then serv-
he or she is
probation,
offense,
(1995)).
on
any
ing
Cal.Rptr.2d
sentence
offense,
any
charged with the
tion for
or
IV.
offense,
permitted
of
commission
majority’s
The
assertion that the state
plea
to
his or her
by the court withdraw
court
who issued the nunc
judges
plea
or
of nolo contendere and
guilty
of
or,
attempting
“alter[]
if he or
orders here were
to
plea
guilty;
of not
enter
underlying
after a
of
plea
history
has been convicted
the
facts” is both
she
and
the
set aside the
guilty,
unseemly.
court shall
incorrect
not
and
case,
and,
the
guilty;
in either
legal
verdict
of the
tunc orders alter the
status
dismiss the accu-
thereupon
court shall
day
they
defendants as of the
before
com-
against the defen-
or information
sations
super-
mitted their federal offense. The
below, he or
and
as noted
except
dant
doing
vising judges
knew what
were
all
be released from
she shall thereafter
why they
doing
goal
it—the
and
were
and
from
resulting
disabilities
penalties
just
render a
permit
to
the district
to
he or she has been
the offense which
allowing it
to
by
sentence
the discretion
convicted....
engage in a full consideration
3553(a)
1203.4(a).
by Congress.5
factors enacted
Code
Unlike
CaLPenal
eliminating a
criteri-
Far from
1203.3,
authority
grants
which
terms,
fiat,”
by “judicial
the state court
“grant
on
ongoing
over
available;
(3)
3553(a)
the kinds of sentences
imposing a
18 U.S.C.
5.
(4)
impose
sentence and the sentenc-
requires: "The
a sentence
the kinds of
court shall
sufficient,
greater
necessary,
range
than
to
for—
but
established
(A)
para-
applicable category of offense
comply
purposes
with the
set forth in
the
court,
(2)
applicable category
by
graph
of this subsection.
committed
determining
particular
guidelines—
sentence to be im-
as set forth
defendant
(i)
Sentencing
posed,
shall consider—
Commission
issued
994(a)(1)
title
pursuant
(1)
to section
nature
circumstances of the of-
and
Code, subject
any amend-
and
and characteristics
fense
defendant;
guidelines by act of
ments made to such
Congress
(regardless
(2)
imposed—
of whether
such
need
the sentence
yet
incorporated
(A)
have
to be
amendments
the seriousness
the of-
to reflect
fense,
law,
into amend-
Commission
promote respect for the
offense;
994(p) of title
section
just
ments issued under
provide
punishment for the
28);
(B)
adequate deterrence to
to afford
(ii) that,
provided
conduct;
except as
in section
the defen-
(C)
3742(g),
in effect
the date
protect
public from
are
further
sentenced;
defendant;
dant
or
crimes of
(B)
(D)
case of a violation of
in the
provide
defendant with needed
release,
guide-
applicable
training,
supervised
medical
educational or vocational
care,
by the Sen-
policy
issued
lines or
statements
treatment in the
or other correctional
manner;
pursuant
to section
tencing Commission
effective
most
*11
2)
heavy dependence
the
simply recognized
proceedings;
criminal
potential
and
upon
mandatory
the federal
scheme
and
facing
mínimums each was
interaction
court sentencing
with state
re-
federal court. Provided with information
gimes.
about how the
super-
individuals
were
vising
federally
could be
sentenced in the
majority
opinion
by
is animated
termination orders,
absence of
the state
crediting
fear that
the state court nunc
judges
applied California law and
usurp
power
orders will
federal
by
determined that
requirements
giving state
authority
courts “the
to
1203.3(a)
§
were satisfied.
If those state
change a defendant’s federal sentence.”
judges were of the view that either Yepez
Yet, Yepez and Acosta-Montes did not fo-
or Acosta-Montes was
in “good
con-
rum-shop
sympathetic
judges
duct” or had not “reformed” within the
willing to interfere with federal sentenc-
law,
meaning of California
they certainly
ing; each defendant filed his motion to
power
had within their
ability
deny
terminate probation
tunc with
the motions.
very
court charged with supervising
statutory
under California’s
Although Yepez’s and Acosta-Montes’s
1203.3,
§
scheme. Under
judges
state court
were “mindful of the
did not
modify
have carte blanche to
implications
sentences,”
of their
probationary terms at their whim.
In-
majority
“wrong
to east aspersions
stead, § 1203.3 sets forth a standard for
on
salutary practice.” Albar-Flores,
the termination of probation:
termination
(Kozinski, C.J.,
the Sentencing
transports
Commission
individual who
into amend-
firearms and
any
ments
994(p)
issued under
also “violates
relating
any
section
of title
state law
28);
substance”);
4A1.2(c)
controlled
U.S.S.G.
(B)
except
provided
(including
in section
under relevant "Sentences Count-
3742(g),
is in effect on the date the defen-
ed”
“violations under state criminal law”
dant is sentenced.
determining
impose
whether to
a sentence
*12
Y.
concerned
are
that “the Guidelines
stated
final determina-
only with the state court’s
matter,
As a
it is clear that
threshold
tion,
of its reason-
with the soundness
not
court
giving effect to
state
orders does
Guthrie, 931 F.2d
ing.”
Congress,
not interfere with
will of
Cir.1991).
Mejia,
(9th
In
for
in fact
consistent with the
principles
sentencing.
to
Congress
govern
enacted
instance,
entirely
possible
it is
safety
determining eligibility
In
Mejia’s proba-
judge
terminated
state
who
relief,
explicitly relied
Congress
days after it was
just
tion
three
for the calculation
Sentencing Guidelines
of concerns about
solely
so
because
did
history points.
of the criminal
U.S.C.
consequences.
sentencing
collateral federal
3553(f).
Guidelines,
turn,
in-
question
no
panel
Yet the
saw
reason
judges
look to state laws and
struct
judge overseeing Me-
the motives
rulings to
state court
determine whether
Mejia,
See
probation.
jia’s
serving a sentence under
defendant
rule
majority’s categorical
cre-
1116. The
§ 4A1.1 cmt. n.5
state law. See U.S.S.G.
between state
sharp
ates a
distinction
(“Prior
may represent convic-
convictions
prior
sentencing orders issued
court
fifty
systems____”);
tions in the ...
state
offense,
a federal
as
commission of
Alba-Flores,
(Kozinski,
at 1112
577 F.3d
validity applies,
presumption
which
(“The
C.J.,
system
dissenting)
re-
federal
after
of a
and those issued
commission
in sentencing
on state courts
heavily
lies
offense,
judges
which federal
must
federal
”); United States v. Men-
defendants....
ignore.
now
doza-Morales,
772, 775
Cir.
2003)
“prior
as a
(counting state sentence
to credit state
Permitting district courts
imprisonment” for Guidelines
sentence of
retroactively modifying pro-
court orders
framework,
it is
Given this
purposes).
somehow al-
bationary
does not
sentences
Congress
premised
has
clear that
sentencing
usurp
state
low
courts
valve relief on state
availability
Quite
judiciary.
federal
power
Thus,
only
in these
question
law.
real
Allowing
true.
federal courts
opposite is
tunc orders are
cases is whether
orders
to credit such
en-
the discretion
they
law.
If
authorized under California
sentencing
hances
discretion
is,
are,
by defi-
giving effect to them
then
judges.
Acosta-
nition,
Congress.
with the will of
consistent
Montes,
repeatedly ex-
both district
did
ad-
Commission
not
the criminal
frustration with
pressed their
count a
or how to
term
dress whether
eligibil-
eliminated
calculations
pursuant to
that was terminated
justified safety
valve re-
ity
otherwise
Notes 6
Application
state law. While
All
make room for
lief.
such a rule does is
under which cer-
circumstances
address
cases to im-
facing
similar
district
convictions should
count-
prior
tain
pose individualized sentences consistent
at a
arriving
Guide-
purposes
ed for the
in 18
set forth
U.S.C.
principles
says anything
neither Note
lines
3553(a),
compelling judges,
than
rather
ongoing
count
about
courts should
how
judgment,
impose
or retroac-
against
their better
terms modified
orders,
tively
grossly excessive.
terminated
sentences
find
4B1.2(a)
4A1.2(o)
(defining
enhancement);
poses);
“crime
(defining
U.S.S.G.
U.S.S.G.
federal, state,
“any
or
under federal
"felony
"any
of violence” as
offense
offense”
law”).
pur-
enhancement
local offense” for sentence
Application
with,
nor does
other
Note speak
tent
or a plainly
reading
erroneous
*13
of,
issue.
this
guideline.”
that
Stinson v. United
States,
36, 38,
1913,
508 U.S.
113 S.Ct.
According Application
Note which
(1993);
unrelated to innocence or errors of majority points also us to the intro- e.g., in order to restore rights civil or to ductory commentary to the criminal histo- stigma remove the associated with a ry section of Chapter 4 of the Sentencing criminal conviction. resulting Sentences Guidelines, which recognizes that de- “[a] from such convictions are to be counted. fendant with a prior record of However, expunged convictions are not behavior is more culpable than a first of- § 4A1.2(j). counted. fender and thus deserving greater pun- (2010) intro, U.S.S.G. 4A1.2 cmt. (empha- n.10 ishment,” (2010), U.S.S.G. 4A cmt. added). sis support its view that Yepez and Acosta- Although Montes’s now the Guidelines terminated probationary themselves are advisory only, sentences render applicable culpable them more than offender, sentence must first-time be calculated correctly. thus more de- See, e.g., serving United States v. harsh Carty, mandatory minimum Cir.2008) (en banc). sentence. While the commentary sets Commentary in Application forth a general Notes in- reasonable principle, it is terpreting or explaining a guideline particularly here, “is not apt where the state authoritative unless it violates the Consti- courts terminated precisely be- statute, tution or a federal or is inconsis- probationary cause the sentence did not snapshot “pho- “more should allow Acosta-Montes Yepez and render theory, Indeed, sup- toshopped” later. Under Commentary culpable.” dis- applying the Guidelines should of state refusing credit these sorts ports regard what occurs commission begin if we only orders after the federal offense but before terms assumption Application that offense. Note ex- times the defendants ongoing at the were directs courts to consider pressly district The ma- their federal offenses. committed sentenc- post-commission sentences when circular: district jority’s reasoning is *14 certainly have the ing, which will altered tunc pro credit nunc courts should not day the “snapshot” taken on the offense ongoing modifying orders was committed: doing prevent so would terms because im- “Prior sentence” means sentence effectively punishing de- courts from those prior sentencing on the instant already posed to who crimes while fendants commit offense, other than a for con- sentence it is clear that these probation, and on that is of the part duct instant offense. of were on sorts defendants 4A1.2(a). A imposed See sentence they their crimes when committed federal af- the ter the commencement credit permitted courts are not to because defendant’s of offense, sentencing prior instant but ongoing tunc pro modifying nunc orders offense, prior the instant is a sen- begin If we instead probationary terms. if it for conduct other than tence was assumption, due to opposite the that part of instant conduct that was the state court operation the of the California offense. the defendants were not on orders they the committed their (2010)
tion at times n.l (emphasis 4A1.2 cmt. U.S.S.G. offenses, not then are added). words, federal in counting “prior In other only culpable a defendant with more than sentences,” required count at courts are And, history point. because one criminal had been yet some sentences that least judge supervising trial California at the the defendant commit- time legally modify or terminate may offense, im- instant but that were ted the good he that “the conduct only when finds before that offense. posed it, we person” reform of the warrants and acceptance government’s of the Blanket that premise instead with the should start theory Application “snapshot” undermines culpable not as as other the defendant is 1. Note defendants, serving pro- ongoing who are deafening Congress the silence of Due to
bationary that have not been termi- terms Commission, the ma- Sentencing the 1208.3(a). nated. Cal.Penal Code statutory no or Guide- jority point can instructing disregard us to provision do not di- lines Application *15 (em- to authorize valve relief. Id. the sentencing embodied in statute Con- added). outcome; phasis This is a sensible 3553(a). enacted, gress 18 U.S.C. the instruct that we look a so previously
We have
held.
United
status
law
defendant’s
under state
when he
States v.
the
was
Mejia,
defendant
offense,
committed the federal
and under
years
tenced in
court to two
of
Alba-Flores,
in
applicable
the
state law
resisting
tion for
arrest.
Law: The Texts 107 much on so
1103
of a
pretations.
scope
Where
terms.
terminating
those
ambiguous,
years ago,
Supreme Court ad-
is
we invoke
rule of
Forty
statute
of com-
importance
lenity
the nature and
in the defen
dressed
and resolve
doubt
state courts
its
ity
federal and
between
dant’s favor. “In these circumstances—
Harris,
87,
Younger
401 U.S.
structure,
decision
text,
and
fail to
where
(1971):
44-45,
669
91
27 L.Ed.2d
S.Ct.
position
establish that the Government’s
comity
concept
represents]
[of
...
unambiguously
[T]he
correct—we
resolve
sensitivity
system in which there
ambiguity
favor.”
[the defendant’s
of both State
interests
legitimate
Cabaccang,
Governments,
in which
and
National
(9th Cir.2003) (en banc) (alterations
Government,
anxious
the National
original)
emphasis
(quoting
United
pro-
though may
to vindicate
it
Granderson,
39, 54,
States v.
U.S.
interests,
rights and
tect
federal
(1994)) (inter
1259,
VII. days “for express purpose avoiding a criminal history point drug his federal The majority points also to United sentencing.” For the Id. DWI term of Martinez-Cortez, States v. 354 F.3d probation, (8th Martinez-Cortez “sought and Cir.2004), and United States v. Pech- Aboytes, received a Cir.2009), reduction term of F.3d 1234 two (relied out-of-circuit tion from September decisions June by the Albar-Flores majority) holding that supervision sen- so ‘he be off would dur- (and convictions at- alleges the attack state their government ing the time sentences) court, in exis- [drug] conspiracy was tendant is ” court credited assessing The district In the length tence.’ Id. a federal one. orders, and found that therefore, tunc of a federal eligible; Martinez-Cortez was only prior court looks at the reversed, with one Eighth Circuit they exist at state sentences as judge dissenting. Id. sentencing.... impor- time of More tantly, appeared the Defendant before concluding that Martinez-Cortez distinguished judges two state court relief, safety valve ineligible for that, who ordered the terms of majority Eighth Circuit concluded matter,” appeal was no from had modified. There “a factual Martinez-Cortez drug offense “while committed his federal these modifications. The state court for the DWI of- he was on proceedings carry thus with them a majority ulti- fense.” Id. at 832. regularity that the ma- presumption had mately held as Martinez-Cortez aside. jority lightly casts ask- already served his sentences before omitted). (citations Like the Id. 833-34 modification, this for a nunc here, majority there majority “failfed] in which was not one of those situations provide proper respect for and defer- “permit courts ence to the state court’s modification of its disregard some state court convictions at 835. own sentences.” Id. of criminal purposes and sentences for the Moreover, factually Martinez-Cortez majority concluded that history.” Id. The distinguishable appeals from the two be- law, Martinez- “as a matter of federal sought to fore us. What Martinez-Cortez step modifying his sen- Cortez’s lesser by having already completed do they were served for reasons tences after tences modified action of state law of law unrelated to his innocence or errors or Acos- different from what either counting for not is not a valid basis by asking to do the trial sought ta-Montes history purposes.” for criminal sentences overseeing ongoing probation- their added). (emphasis Id. See, e.g., ary modify those terms. terms dissent, Judge Lay criticized Writing (addressing 1203.3 Cal.Penal Code majority being decision as incorrect during the term authority of state courts *18 (Lay, authority.” Id. at 833 and “without revoke, modify, change or probation “to majority opinion, in dissenting). “The J. imposition or suspension its order of he wrote respect,” all due sentence”). execution of princi- fails to address the fundamental defendant, Paul Pechr-Aboytes, In owed ples of federalism and deference (a/k/a Solis-Aboytes), Pech-Aboytes Javier pro- courts in by federal courts to state in 2007 one count of guilty pleaded cessing their own criminal cases. meth- with intent to distribute possession evidences structure of the Guidelines at 1235. amphetamine. 562 F.3d part of the an intent on convicted of a mis- Pech-Aboytes had been to the sentences to look Commission state court California demeanor courts for actually imposed by state com- government-issued manufacturing when calcu- state criminal convictions licenses, and had been mercial drivers criminal lating a federal defendant’s probation. thirty-six months tenced to with this history score. Consonant “several n. 1. Due to Id. at 1236 idea, has made Supreme Court reinstatements,” Pech- forum in which to revocations proper clear that the mandatory-minimum penalty Aboytes’s California safety-valve provision inappli- when he committed his is ongoing when the n. 2. Id. at 1236 drug offense. at 1240. Pech-Aboytes, cable.” guilty, but before he was pleaded After he majority adopts illogical reason- sentenced, Pech-Aboytes sought and re- noted, Applica- neither ing. previously As tunc order from a Cali- pro ceived a nunc Application tion Note 6 nor Note 10 to terminating fornia state § 4A1.2 addresses how sentenc- U.S.S.G. 30, 2007. Id. at 1236. September tion as of ongoing probation- courts should view sentencing, (relying At the district court ary by terms that have been modified decision in Mar- Eighth on the Circuit’s specificity orders. Given the with which tinez-Cortez) to credit the state declined Application these Notes dictate how courts order, and that Pech- found sentences, prior treat and that nei- should Aboytes safety valve was not entitled ther Note addresses nunc tunc orders relief; affirmed. Id. at the Tenth Circuit terms, modifying ongoing probationary 1238-39. specific, perhaps unique, much less Concluding Pech-Aboytes that was not procedures enacted the California State relief, eligible the Tenth Legislature, why it is not clear the Tenth Application Notes 6 and 10 to Circuit cited “implication” Ap- Circuit thinks the 4A1.2, and reasoned that U.S.S.G. “the plication only previous Notes is that the specific prior are about which that convictions the district court should are convictions and sentences counted not count are those that have been set calculating history a defendant’s criminal finding aside because of a of innocence or points, prior which convictions and Indeed, it legal equally error. reason- sentences are not.” Id. at 1239. The Application to read the able Notes to ex- Pech-Aboytes court then observed ongoing probationary clude terms implication” Application Note 10 “[t]he have been shortened state modification the district court count “is should types orders from the of sentences that previous convictions unless have been counted, precisely should be because the a finding set aside because of of innocence culpable defendants are not the more crim- legal error.” Id. deserving inals of harsher sentences. The Tenth Circuit also relied on the introductory commentary to the criminal VIII. Chapter section of 4 of the Sen- competing are faced with two histor- We Guidelines, which, tencing as noted hand, legal ical and realities: on the one it VI, general Part proposition states surely true the times Acosta- prior that a “defendant with a record of Montes and committed their federal culpable is more than a behavior *19 offenses, the state of California viewed deserving great- first offender and thus intro, probation; equally them as on it is true punishment.” er U.S.S.G. 4A that, at sentencing, the time of federal commentary, cmt. This the court ob- law, they under California were not on served, “further that the indicates Guide- probation when offenses were commit- lines are an in- capture, intended via Guidelines, in Nothing ted. history points, very crease parties, clearly cases cited indicates attempting behavior [the defendant] trump which these realities should to avoid: the commission of a crime while purposes calculating for the crimi- under a sentence. Such be- other harsher, directly history points determining havior is relevant to the nal when time safety valve at the applicability “the Ultimately, respecting sentencing. federalism principles of
fundamental courts to state owed
deference their own criminal processing
courts Martinez-Cortez,
cases,” J., recognizing that dissenting), and
(Lay, heavily on state system relies
the “federal and it’s defendants judg- to call these
wrong pernicious question into because
ments into account the may have taken Albar- sentencing,” on federal
effects C.J., (Kozinski,
Flores, F.3d at nothing precludes
dissenting), there is taking into account district courts from tunc orders state nunc
these lawful the defendants’ criminal calculating
when purposes score for And, applying after
eligibility.
factors, if court determines the district warranted, it has the
higher sentence is sentence, but it impose such a
discretion so, if it believes such required to do Accordingly, I would unjust.
a sentence sentence, vacate
affirm Acosta-Montes’s Yepez’s case and remand
Yepez’s resentencing. SANCHEZ, Petitioner,
Griselda Attorney HOLDER, Jr.,
Eric H.
General, Respondent.
No. 08-72430. Appeals,
United States Court
Ninth Circuit. Nov. 2012.
Argued and Submitted Dec. 2012.
Filed
The
notes
may
That termination
have beneficial con
that
vide
sentences based on convictions
sequences for the defendant under state
that have
ruled constitutionally
been
inval-
law,
alter
but a court cannot
the historical
id or that have been reversed or vacated
fact
had
that the defendant
the status of
due to
law or the
errors of
defendant’s
probationer when he
his federal
committed
innocence are also not
to be counted.
crime.
§ 4A1.2 cmt. n.6.
Mejia,
United
v.
States
Notes
the Notes While us, orders. courts’ nunc rectly address the situation before Instead, turns a canon of majority Application one Note the Commen- least construction, asserting, multiple argu- through tary government’s undercuts inference, ment, majority, suggests that the canon levels of implicitly adopted interpretation that, proper under calculating criminal we Guidelines, requires disregard “snap- should take a argu- Accepting at the exact moment state court orders. situation shot” value,7 committed, majority does at face and ment federal offense it con- does not indicate that an enhancement Commission’s decision 7. The us, less before much templated the scenario foreign tribal convictions exclude disre- qualify it intended that the the list of convictions which from ambiguity to foster the The court reduced term to less nothing but Guidelines, lenity all making year, the rule of than a but the effective date of the below. appropriate, the more as discussed termination was after the federal offense Garner, Bryan & A. See Antonin Scalia conduct and was not made retroactive Reading Interpretation Legal Law: result the state court. Id. The (2012) lenity). (discussing Texts 296 rule state, eyes even in the defendant justice remained “under VI. tence when he committed his federal of- the federal district courts to Allowing (internal quotation Id. at 1111 fense.” recognize tunc orders com- added). emphasis marks omitted and ports precedent, principles with our majority, chiefly Albar-Flores concerned federalism, comity lenity the rule legal with the defendant’s status “when he concept and the of individualized sen- offense,” committed his federal chose not tences, including principle, the parsimony
Notes
Alba-Flores,
ment than we are.”
577 F.3d
4A1.2,
ultimately
U.S.S.G.
reached
C.J.,
(Kozinski,
dissenting).
fact supported by any
conclusions not in
That federal
should
allowed
authority.
credit the
termination
retroactive
Martinez-Cortez,
defendant,
Jer-
tionary
calculating
sentences when
crimi-
Martinez-Cortez,
ardo
pleaded
guilty
safety
nal
points
eligibili-
valve
conspiracy to distribute methamphet-
ty
they
does not mean that
must. What
Martinez-Cortez,
amine.