Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding D.C. No. 3:06-CR-01748-BEN.
The opinion of the court was delivered by: Fernandez, Circuit Judge
Argued and Submitted July 7, 2009 -- Pasadena, California.
Before: Alex Kozinski, Chief Judge, Ferdinand F. Fernandez and N. Randy Smith, Circuit Judges.
Opinion by Judge Fernandez; Dissent by Chief Judge Kozinski.
Eduardo Alba-Flores appeals his sentence for importation of methamphetamine. See 21 U.S.C. §§ 952, 960. Specifically, he asserts that the district court erred when it determined that he had more than one criminal history point under the United States Sentencing Guidelines because he was serving a term of probation at the time of his federal offense, although probation was terminated before he was sentenced. See USSG § 4A1.1(d).*fn1 That precluded a grant of relief under 18 U.S.C. § 3553(f) and USSG § 5C1.2 ("safety valve relief"). We affirm.
Alba-Flores was arrested on July 4, 2006, as he drove an automobile containing twenty packages of methamphetamine into the United States at San Ysidro, California. The methamphetamine was hidden in a special compartment in the trunk and appeared to weigh approximately 13 kilograms. Later analysis revealed that the methamphetamine actually weighed 8.774 kilograms.
On August 15, 2006, Alba-Flores waived indictment and pled guilty before a magistrate judge to charges of importing methamphetamine in violation of 21 U.S.C. §§ 952, 960. In his plea agreement, and in the plea colloquy, Alba-Flores acknowledged that there was a ten-year mandatory minimum sentence for the offense. See 21 U.S.C. § 960(b)(1). However, the agreement also contained a provision indicating that if Alba-Flores disclosed all information and evidence regarding his offense, and if he qualified for safety valve relief, the government would recommend the reduction of his offense level by two points and recommend relief from the ten-year statutory minimum sentence.
Unfortunately, the Presentence Report (PSR) revealed that Alba-Flores had pled guilty to driving with a suspended or revoked license in violation of California Vehicle Code § 14601.1(a) on February 22, 2006, and had been sentenced to a three-year term of probation. He was still subject to that term of probation when he committed the instant offense. Because the conviction and sentence gave Alba-Flores more than one criminal history point, the PSR did not recommend safety valve relief. Therefore, with a total offense level of twenty-nine and a criminal history level of II, his corresponding Guideline range was 97-121 months. Because the statutory minimum sentence was 120 months, the PSR recommended the ten-year mandatory minimum.
On December 20, 2006, the district court adopted the magistrate judge's recommendation to accept Alba-Flores' guilty plea. Before the district court imposed any sentence, however, Alba-Flores asked for new counsel, whom the district court appointed. The court then continued the sentencing hearing.
Before the next hearing, Alba-Flores' attorney contacted Kern County, California, Deputy Public Defender, Dana S. Kinnison, who filed a "Motion to Reduce Charge and Terminate Probation" in Kern County Superior Court, which was directed at Alba-Flores' misdemeanor conviction. The caption indicated that the motion was being made pursuant to California Penal Code §§ 1203.3 and 19.8 and was filed because Deputy Public Defender Kinnison "received a call from an attorney in San Diego requesting that the court reduce the misdemeanor charge to an infraction to facilitate a more favorable disposition on a case pending in San Diego." The nature of the San Diego case was not explained. At a hearing on the motion on February 13, 2007, the superior court granted the motion, but called it a California Penal Code § 1203.4 motion, rather than a § 1203.3 motion. On the Order Reducing the Charge and Terminating Probation Nunc Pro Tunc, the court also hand wrote the note, "Dismissed as a PC 1203.4 GRW."*fn2 Similarly, the accompanying minute order indicated that the court granted the motion to dismiss and stated that the guilty plea is "set aside; a plea of not guilty is ordered entered and the count is dismissed pursuant to Penal Code section 1203.4." (All letters capitalized in order.) The order had the effect of reducing Alba-Flores' prior misdemeanor conviction to an infraction nunc pro tunc to the date he had committed that violation and then dismissing it, which ended Alba-Flores' probation also. Moreover, because that order was issued on February 13, 2007, Alba-Flores' probation terminated nine days short of his having served one year of it, which would have been February 22, 2007. Alba-Flores admitted that the sole purpose of the order was to affect his federal sentencing.
Back in district court, Alba-Flores moved to compel specific performance of the plea agreement, or, alternatively, to find him eligible for safety valve relief. He argued that the superior court's order reducing his misdemeanor conviction to an infraction nunc pro tunc meant that it could not be counted for criminal history purposes, so he should be eligible for safety valve relief. The government argued that the nunc pro tunc order did not expunge Alba-Flores' prior conviction for federal sentencing purposes, so it would still be countable under the Guidelines. See United States v. Hayden, 255 F.3d 768, 771-73 (9th Cir. 2001) (holding that a conviction set aside under § 1203.4 is not "expunged" and may be counted for criminal history purposes).
The district court held several hearings regarding sentencing and ultimately decided that Alba-Flores' base offense level under the Guidelines was thirty-four, but then reduced it by five levels for his minor role in the offense and for his acceptance of responsibility. It also accepted the govern-ment's argument that the proceedings in the superior court after Alba-Flores had committed his federal offense did not expunge his state conviction or otherwise permit the reduction of his three criminal history points, one for the state ...