Yepez

Vincent J. Brunkow, Federal Defenders of San Diego Inc., San Diego, CA, for Audenago Acosta-Montes.

Michael Edmond Burke, San Diego, CA, for David Yepez.

Karen P. Hewitt, United States Attorney, and Bruce R. Castetter, Kyle W. Hoffman, and Timothy C. Perry, Assistant United States Attorneys, San Diego, CA, for the United States of America.

Before: KIM McLANE WARDLAW and WILLIAM A. FLETCHER, Circuit Judges, and ROBERT J. TIMLIN, Senior District Judge. [*]

Opinion by Judge WARDLAW; Dissent by Judge TIMLIN.

WARDLAW, Circuit Judge:

"[C]omity between state and federal courts ... has been recognized as a bulwark of the federal system." Allen v. McCurry, 449 U.S. 90, 96 , 101 S.Ct. 411 , 66 L.Ed.2d 308 (1980). California Penal Code § 1203.3 permits state judges who are supervising individuals placed on state probation to terminate retroactively the terms of probation to which they had previously sentenced those defendants. Each of the defendants in these consolidated appeals was serving such a probationary sentence when he committed and pleaded guilty to the charge of smuggling methamphetamine into the United States. Before sentencing on the federal charge, however, each defendant…

dissenting:

I respectfully dissent. This circuit treats “reasoning central to a panel’s decision as binding later panels.” Garcia v. Holder, 621 F.3d 906, 911 (9th Cir.2010). “[Wjhere a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.” Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir.2003) (per curiam) (quoting United States v. Johnson, 256 F.3d 895, 914 (9th Cir.2001) (en banc) (Kozinski, J., concurring)).

I would hold that United States v. Alba-Flores, 577 F.3d 1104 (9th Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 3344 , 176 L.Ed.2d 1237 (2010), controls here in both Yepez and Acosta-Montes. 1 The AlbaFloreé panel held that, because the defendant was serving a sentence of probation of more than one year at the time he committed his federal offense, he was properly assigned two criminal history points pursuant to U.S.S.G. § 4Al.l(d) and was disqualified from obtaining safety valve relief from the mandatory minimum sentence. 577 F.3d at 1111 . The Court reached that…

Opinion by Judge WARDLAW; Dissent by Judge TIMLIN.

OPINION

“[CJomity between state and federal courts ... has been recognized as a bulwark of the federal system.” Allen v. McCurry, 449 U.S. 90, 96 , 101 S.Ct. 411 , 66 L.Ed.2d 308 (1980). California Penal Code § 1203.3 permits state judges who are supervising individuals placed on state probation to terminate retroactively the terms of probation to which they had previously sentenced those defendants. Each of the defendants in these consolidated appeals was serving such a probationary sentence when he committed and pleaded guilty to the charge of smuggling methamphetamine into the United States. Before sentencing on the federal charge, however, each defendant obtained a modification order retroactively terminating his state-court probationary sentence as of the day before he committed his federal crime. Each argued to the state judge supervising him that failure to terminate the state probationary term would substantially increase his federal sentencing exposure by rendering him ineligible for safety-valve relief from the otherwise applicable ten-year statutory mandatory minimum. Though each federal district court judge observed…