Scott Marks 4 p.m., Nov. 25
Federal court overrules move by California to lighten drug smuggler sentences
The 11 judge federal 9th Circuit Court of Appeals has voted 7-4 to disallow a move by the California court system to retroactively lift the probation status of two convicted drug smugglers in an attempt to lighten their sentences.
At issue are the separate cases of David Yepez and Audenago Acosta-Montes, both of whom were caught in 2008 smuggling methamphetamine (though Yepez told authorities he thought he was smuggling marijuana). At the time Yepez was on probation for a 2007 drunk driving conviction and Acosta-Montez was likewise serving a probation term for shoplifting from a Target store.
At sentencing, federal prosecutors recommended a 10 year mandatory minimum sentence for both defendants after assigning them two “criminal history points” for committing their crimes while on probation, Courthouse News Service reports.
Both Yepez and Acosta-Montes, however, convinced state judges to retroactively terminate their probations, effective the day before they were caught committing their federal crimes. Because of this, they should have been eligible for “safety valve relief,” which allows judges to disregard mandatory minimum sentencing laws for first-time nonviolent drug offenders with one criminal history point or less.
Yepez regardless was assigned the 10 year sentence, though the court acknowledged the sentence was “disproportionately harsh given Yepez’s background.”
Acosta-Montes’ judge, however, granted the safety valve movement and sentenced him to 46 months.
Both cases were appealed, Yepez’s by the defendant and Acosta-Montes’ by the federal government. After Yepez found his sentence vacated and Acosta-Montes’ was affirmed by a split 3 judge panel, the full 9th Circuit agreed to rehear the case, at which point they reversed the appeals court rulings.
“That a state court later deemed the probation terminated before the federal crime was committed can have no effect on a defendant's status at the moment he committed the federal crime,” the judges wrote, finding that the key factor in determining the criminal history points assignment was that the defendants were indeed still on probation when they were arrested, regardless of whether that probation was later lifted.
Yepez’s sentence was reaffirmed, and Acosta-Montes’ was vacated, with orders given for re-sentencing under the mandatory minimum guidelines.