United States v. David Yepez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 09-50271 Plaintiff-Appellee, D.C. No. v. 3:08-cr-03499-

LAB-

DAVID YEPEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

UNITED STATES OF AMERICA , No. 09-50409 Plaintiff - Appellant, D.C. No. v. 3:08-cr-02350-

L-

AUDENAGO ACOSTA -MONTES,

Defendant - Appellee.

OPINION

Appeal from the United States District Court for the Southern District of California M. James Lorenz, Senior District Judge, Presiding

Argued and Submitted En Banc June 21, 2012—Pasadena, California UNITED STATES V . YEPEZ

Filed December 20, 2012

Before: Alex Kozinski, Chief Judge, Harry Pregerson, Stephen Reinhardt, Sidney R. Thomas, Susan P. Graber, Kim McLane Wardlaw, William A. Fletcher, Ronald M. Gould, Johnnie B. Rawlinson, Consuelo M. Callahan, and Milan D. Smith, Jr., Circuit Judges.

Per Curiam Opinion; Dissent by Judge Wardlaw

SUMMARY*

Criminal Law

Affirming one defendant’s federal drug sentence and…

dissenting:

I.

“[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 pursuant to California Penal Code § 1203.3 that retroactively terminated his state-court probationary sentence as of the day before he committed his federal crime. Each filed a motion that expressly 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…

Per Curiam Opinion; Dissent by Judge WARDLAW.

OPINION

1. David Yepez and Audenago Acosta-Montes’s cases are variations on the same theme. Both were arrested crossing into the United States from Mexico while carrying enough methamphetamine to trigger a ten-year mandatory minimum sentence. Each pled guilty to one count of importing methamphetamine.

After the pleas, but before sentencing, they learned that they were ineligible for relief under the Mandatory Minimum Sentencing Reform Act’s “safety valve” provision. See 18 U.S.C. § 3553 (f); United States v. Shrestha, 86 F.3d 935, 938 (9th Cir.1996). The safety valve allows “the sentencing court to disregard the statutory minimum in sentencing first-time nonviolent drug offenders who played a minor role in the offense and who have made a good-faith effort to cooperate with the government.” Shrestha, 86 F.3d at 938 (internal quotation marks omitted); see also United States v. Wipf, 620 F.3d 1168, 1170 (9th Cir.2010). 1 Safety valve relief is a tempting carrot for drug mules who are facing a mandatory minimum but, to trigger it, they must show that they meet five requirements. 18 U.S.C. § 3553 (f); see also United States v.…