Ninth Circuit

POST CON RELIEF " SENTENCE " PROBATION " NUNC PRO TUN ORDER
United States v. Yepez, 652 F.3d 1182 (9th Cir. July 25, 2011) (California courts nunc pro tunc reduction of probation term, under Penal Code 1203.3, to end one day prior to the commission of a federal drug offense, effectively qualified the defendant for application of the Safety Valve allowing a shorter sentence under 18 U.S.C. 3553(f)); citing 18 U.S.C. 3553(f) (statute allows a district court to impose a sentence below the mandatory minimum if five factors are met, including a requirement that the defendant have no more than one criminal history point as defined by the United States Sentencing Guidelines); distinguishing United States v. Alba-Flores, 577 F.3d 1104 (9th Cir. 2009)(California motion to terminate probation under Penal Code 1203.3, which was granted as a motion to expunge the conviction under Penal Code 1203.4, did not remove the prior conviction from scoring under U.S.S.G. 4A1.2(c)(1), and that even if it could be removed from scoring by dismissing the state case, it did not change that at the time Alba-Flores committed the federal offense he was serving a probationary sentence); but see United States v. Martinez-Cortez, 354 F.3d 830 (8 th Cir. 2004) (where defendant attempted to modify a California sentence after probation had expired, the modification was ineffective for federal sentence purposes because the California court did not have jurisdiction); United States v. Pech-Aboytes, 562 F.3d 1234 (10 th Cir. 2009) (defendant's actual status at the time of the commission of the later federal offense, rather than whether California considered him on probation for that offense as a result of later motion to modify probation, controls the application of the safety valve). See generally the excellent article by John Lanahan, Another Escape Hatch in the Safety Valve: United States v. Yepez, The Federal Tatler, No. 162 (September 29, 2011).