                 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-1
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-1
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
2                   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
vacating another, the en banc court held that a state court’s
order terminating a defendant’s probation for a state offense
“nunc pro tunc” as of the day before the defendant committed
his federal crime cannot alter the fact that the defendant had
the status of probationer when he committed his federal
crime.

    The en banc court concluded that the defendants therefore
remained ineligible for safety valve relief under 18 U.S.C.
§ 3553(f) from the mandatory minimum sentence because
they were properly assessed two criminal history points
pursuant to U.S.S.G. § 4A1.1(d) for committing the federal


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V . YEPEZ                     3

crime “while under any criminal justice sentence, including
probation.”

    Dissenting, Judge Wardlaw (joined by Judges Pregerson,
Reinhardt, Thomas, and W. Fletcher) wrote that because
neither Congress, the safety valve provision, nor the
Sentencing Guidelines address this question, fundamental
principles of justice, federalism, and comity, as well as the
rule of lenity and the parsimony principle of 18 U.S.C.
§ 3553(a), permit district courts to exercise their broad
sentencing discretion when calculating criminal history
scores for purposes of safety valve relief, and then to exercise
that same discretion in determining the appropriate sentence
length.


                         COUNSEL

Karen P. Hewitt, United States Attorney, Bruce R. Castetter,
Assistant U.S. Attorney, Chief, Appellate Section Criminal
Division, and Timothy C. Perry, Assistant U.S. Attorney,
Office of the U.S. Attorney for the Southern District of
California, San Diego, California, for Appellee United States.

Michael Edmund Burke, San Diego, California, for Appellant
David Yepez.

Karen P. Hewitt, United States Attorney, Bruce R. Castetter,
Assistant U.S. Attorney, Chief, Appellate Section Criminal
Division, and Kyle W. Hoffman and Rebecca Suzanne
Kanter, Assistant U.S. Attorneys, Office of the U.S. Attorney
for the Southern District of California, San Diego, California,
for Appellant United States.
4                    UNITED STATES V . YEPEZ

Vincent James Brunkow, Assistant Appellate Supervisor,
Federal Defenders of San Diego, Inc., San Diego, California,
for Appellee Audenago Acosta-Montes.


                               OPINION

PER CURIAM:

    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


    1
   Wipf rejects Acosta-Montes’s argument that the “parsimony principle”
contained in 18 U.S.C. § 3553(a) (i.e., that district courts shall “impose a
sentence sufficient, but not greater than necessary” to accomplish the
goals of sentencing) permitted the district judge to give him a sentence
below the mandatory minimum, even if he isn’t eligible for safety valve
relief. See Wipf, 620 F.3d at 1170–71. We see no reason to revisit Wipf.
                 UNITED STATES V . YEPEZ                    5

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. Alba-Flores, 577 F.3d 1104, 1107 (9th Cir.
2009).

    Yepez and Acosta-Montes’s problem is that one of these
requirements is that a defendant “not have more than 1
criminal history point, as determined under the sentencing
guidelines.” 18 U.S.C. § 3553(f)(1). The Guidelines assign
two criminal history points to defendants who commit a
federal crime “while under any criminal justice sentence,
including probation.” U.S. Sentencing Guidelines Manual
§ 4A1.1(d). When they were arrested for carrying drugs into
the United States, both were on probation for relatively minor
state crimes—Yepez for a DUI, Acosta-Montes for
shoplifting.

    And here is where it gets interesting: Prior to being
sentenced by the district court, each man convinced a state
court to terminate his probation “nunc pro tunc” as of the day
before he committed his federal crime. See Cal. Penal Code
§ 1203.3(a) (“The court shall have authority at any time
during the term of probation to revoke, modify, or change its
order of suspension of imposition or execution of sentence.”).
Yepez and Acosta-Montes argue that their nunc pro tunc
orders effectively changed history, so that they were no
longer on state probation at the time they committed their
federal crimes and were, therefore, eligible for safety valve
relief.

   Yepez’s district judge rejected this argument, and
imposed the mandatory minimum sentence. Acosta-Montes’s
judge accepted it, and gave him a sentence below the
6                  UNITED STATES V . YEPEZ

mandatory minimum. We affirm in one case and reverse in
the other.2

    2. The Guidelines assign a defendant two criminal history
points if he “committed [a federal] offense while under any
criminal justice sentence, including probation.” U.S.
Sentencing Guidelines Manual § 4A1.1(d) (emphasis added).
By its plain language, the provision looks to a defendant’s
status at the time he commits the federal crime. Yepez was
on probation while he was arrested for importing
methamphetamine on September 16, 2008, and had been for
over a year. Acosta-Montes was on probation while he was
arrested on May 7, 2008, and had been for almost two years.
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. That termination may have beneficial consequences
for the defendant under state law, but a court cannot alter the
historical fact that the defendant had the status of probationer
when he committed his federal crime.

    United States v. Mejia, 559 F.3d 1113 (9th Cir. 2009), is
not to the contrary. The state court order terminating the
defendant’s probation in that case was issued years before he
committed the federal crime at issue. Id. at 1116, 1119. He
was therefore no longer under a criminal justice sentence.

    In United States v. Alba-Flores, 577 F.3d at 1111, we
held that, when determining whether a federal defendant is
under a criminal justice sentence, “[i]t is the actual situation


    2
     Because we affirm Yepez’s sentence, we need not reach the
government’s argument that, under the terms of his plea bargain, he
waived his right to appeal his sentence.
                 UNITED STATES V . YEPEZ                    7

at th[e] precise point in time” that the crime was committed
and “not the situation at some earlier or later point that
controls.” Even the dissent there agreed that the majority’s
holding might have been correct, had the state court
retroactively shortened Alba-Flores’s probation. Id. at 1112
(Kozinski, C.J., dissenting).       Accepting Alba-Flores’s
argument wouldn’t have required a federal court to pretend
that the defendant had served less than a year when he
actually had served more than a year.

     The overall statutory scheme lends further support to our
reading of subsection 4A1.1(d). See U.S. Sentencing
Guidelines Manual § 4A1.1 cmt. (“§§ 4A1.1 and 4A1.2 must
be read together.”). Section 4A1.2 does permit district courts
to ignore certain types of previously imposed sentences when
calculating criminal history. For example, “[s]entences for
expunged convictions are not counted.” § 4A1.2(j). Neither
are “[s]entences resulting from foreign convictions,” nor
those that result from “tribal court convictions.”
§ 4A1.2(h)–(i). The application notes provide that sentences
based on convictions that have been ruled constitutionally
invalid or that have been reversed or vacated due to errors of
law or the defendant’s innocence are also not to be counted.
§ 4A1.2 cmt. n.6.

    The Guidelines’s drafters were thus aware that it was
possible for subsequent events to supersede previously
imposed sentences. But nothing in the Guidelines or its
application notes carves out an exception for probationary
sentences that are terminated nunc pro tunc by a state court
order. Even when a conviction is set aside for “reasons
unrelated to innocence or errors of law,” we still count the
resulting sentence. § 4A1.2 cmt. n.10; see also United States
v. Hayden, 255 F.3d 768, 770–74 (9th Cir. 2001). And the
8                 UNITED STATES V . YEPEZ

application notes state expressly that “[p]rior sentences, not
otherwise excluded, are to be counted in the criminal history
score.” § 4A1.2 cmt. background note; cf. Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 107 (2012) (discussing expressio unius canon).
Because Yepez and Acosta-Montes cannot point to a
provision indicating that their sentences aren’t to be counted,
we must infer that they are.

    Our sister circuits that have considered the issue of
whether to count a probationary sentence that was terminated
nunc pro tunc by a state court “for the sole purpose of
obtaining favorable federal sentencing consequences,” United
States v. Martinez-Cortez, 354 F.3d 830, 832 (8th Cir. 2004),
have reached a similar conclusion. The Eighth Circuit
observed that if a defendant’s “convictions had been vacated
for the express purpose of enabling him to become eligible
for the safety valve, the sentences would have counted
because the convictions would have been set aside for reasons
unrelated to his innocence or errors of law.” Id. Thus, the
“lesser step of modifying his sentences . . . for reasons
unrelated to his innocence or errors of law is not a valid basis
for not counting the sentences.” Id. And the Tenth Circuit
noted that “the Guidelines are intended to capture, via an
increase in criminal history points, the very behavior [the
defendant] was attempting to avoid: the commission of a
crime while under a probationary sentence.” United States v.
Pech-Aboytes, 562 F.3d 1234, 1240 (10th Cir. 2009); see also
Alba-Flores, 577 F.3d at 1110 (majority opinion).

    The three-judge panel that originally decided this case
reached the opposite conclusion, largely based on principles
of comity. See, e.g., Younger v. Harris, 401 U.S. 37, 44
(1971). We acknowledge that “[p]rinciples of comity and
                  UNITED STATES V . YEPEZ                    9

federalism counsel against substituting our judgment for that
of the state courts.” Taylor v. Maddox, 366 F.3d 992, 999
(9th Cir. 2004); see also Alba-Flores, 577 F.3d at 1112
(Kozinski, C.J., dissenting). But granting a state court the
power to determine whether a federal defendant is eligible for
safety valve relief under the Federal Sentencing Guidelines is
closer to abdication than comity. “In our American system of
dual sovereignty, each sovereign—whether the Federal
Government or a State—is responsible for the administration
of its own criminal justice system.” Setser v. United States,
132 S. Ct. 1463, 1471 (2012) (internal quotation marks and
alterations omitted); see also Taylor v. Sawyer, 284 F.3d
1143, 1151 (9th Cir. 2002). State courts cannot be given the
authority to change a defendant’s federal sentence by issuing
a ruling that alters history and the underlying facts.

    The safety valve is a narrow exception to the statutory
regime established by the Mandatory Minimum Sentencing
Reform Act. As Judge Timlin noted in his dissent from the
original panel opinion, crediting the state court’s retroactive
termination of Yepez and Acosta-Montes’s probation
sentences would “create[] an exception to one of five [safety
valve] criteria established by Congress and the President” by
“judicial fiat.”

    Yepez’s sentence is AFFIRMED. Acosta-Montes’s
sentence is VACATED, and his case is remanded for
imposition of a sentence consistent with this opinion.
10                   UNITED STATES V . YEPEZ

WARDLAW, Circuit Judge, joined by PREGERSON,
REINHARDT, THOMAS, and W. FLETCHER, Circuit
Judges, dissenting:


                                    I.

    “[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 (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 federal district
court judge observed that the mandatory minimum sentence
was grossly excessive, the judge in Acosta-Montes’s case
deferred to the state court’s nunc pro tunc1 termination of


     1
     “Nunc pro tunc” literally means “now for then,” and is “used in
reference to an act to show that it has retroactive legal effect.” Bryan A.
Garner, A Dictionary of Modern Legal Usage 607 (2d ed. 1995). The
                     UNITED STATES V . YEPEZ                           11

probation in calculating his criminal history scores while the
judge in Yepez’s case did not. Before us is the question
whether, given the California state courts’ wide latitude to
modify ongoing probationary terms under California state
law, the federal district courts in calculating criminal history
points for purposes of safety valve eligibility may credit state
orders retroactively terminating probationary sentences.
Because neither Congress, the safety valve provision,
18 U.S.C. § 3553(f), nor the Sentencing Guidelines
themselves address this question, I submit that fundamental
principles of justice, federalism, and comity, as well as the
rule of lenity and the parsimony principle of 18 U.S.C.
§ 3553(a), permit district courts to exercise their broad
sentencing discretion when calculating criminal history
scores for purposes of safety valve relief, and then to exercise
that same discretion in determining the appropriate sentence
length.

    A. David Yepez

    On July 18, 2007, David Yepez, who was then just over
eighteen years old, pleaded guilty in California state court to
driving under the influence of alcohol (“DUI”) in violation of
California Vehicle Code § 23152(b), and was placed on
probation, initially for a period of three years. On September
16, 2008, Yepez, then just over twenty years old, tried to
enter the United States from Mexico while driving a vehicle
containing more than seven kilograms of methamphetamine.
After his arrest, Yepez explained that he needed money and


term signifies that “a thing is done now, which shall have same legal force
and effect as if done at time when it ought to have been done.” United
States v. Allen, 153 F.3d 1037, 1044 (9th Cir. 1998) (quoting Black’s Law
Dictionary 964 (5th ed. 1979)).
12                   UNITED STATES V . YEPEZ

had agreed to smuggle what he believed to be marijuana. As
the district court later found, crediting the border agents’
testimony as to Yepez’s demeanor, Yepez was “shocked” to
discover that the “marijuana” was in fact methamphetamine.2
On November 4, 2008, pursuant to a plea agreement, Yepez
pleaded guilty before a magistrate judge to one count of
importing methamphetamine in violation of 21 U.S.C. §§ 952
and 960. Yepez acknowledged that he was subject to the ten-
year statutory minimum term of imprisonment, and waived
his right to appeal “unless the Court imposes a custodial
sentence above the greater of the high end of the guideline
range recommended by the Government pursuant to this
agreement at the time of sentencing or statutory mandatory
minimum term, if applicable.”

    In its February 17, 2009, Presentence Investigation Report
(“PSR”), the United States Probation Office concluded that
Yepez was ineligible for safety valve relief under 18 U.S.C.
§ 3553(f). The Probation Office assigned two criminal
history points under U.S.S.G. § 4A1.1(d) for Yepez’s
commission of the offense while on probation for his 2007
DUI conviction, and therefore recommended the ten-year
mandatory minimum sentence. While the government agreed
with the recommendation, it noted that it would have
recommended a sentence of 57 months had Yepez qualified
for safety valve relief. Following disclosure of the PSR,
Yepez moved for nunc pro tunc termination of probation
under California Penal Code § 1203.3. On April 22, 2009,
the state judge supervising his probation ordered Yepez’s
ongoing probation terminated as of September 15, 2008, the


 2
   The district court observed that “someone who is younger, particularly
18, 19 years old, who hasn’t had the full set of experiences yet is more apt
to make mistakes of this type.”
                   UNITED STATES V . YEPEZ                        13

day before Yepez committed his federal offense.                State
prosecutors did not appeal from this order.

      At his May 18, 2009 federal sentencing hearing, Yepez
objected to the sentencing recommendation, arguing that the
state-court nunc pro tunc order made him eligible for safety
valve relief because by operation of state law he was not on
probation when he committed his federal offense, so he did
not have “more than 1 criminal history point.” 18 U.S.C.
§ 3553(f)(1). The government argued that the state court
could not rewrite the historical fact that, at the time of the
federal offense, Yepez had been on state probation. The
district court imposed the mandatory minimum sentence of
120 months imprisonment despite its view that a 63 month
sentence of imprisonment was the appropriate sentence. The
court stated, “I wouldn’t give Mr. Yepez a 10-year sentence
if it was up to me, if I had discretion. Wouldn’t do it. I think
that’s disproportionate given his background, but that’s not
what’s at issue. . . . I don’t like it. I really don’t like it. . . .
I have imposed [this sentence] because I felt like I had to.
That’s the only reason.”

    B. Audenago Acosta-Montes

    In 2006, Audenago Acosta-Montes, a lawful permanent
resident, was convicted in California state court of one count
of misdemeanor theft for shoplifting from a Target store, and
was sentenced to one day in county jail and three years of
probation. On May 7, 2008, Acosta-Montes attempted to
enter the United States near San Ysidro, California, while
driving a pickup truck containing approximately 3.30
kilograms of methamphetamine. On October 2, 2008,
pursuant to a plea agreement, Acosta-Montes pleaded guilty
14               UNITED STATES V . YEPEZ

to one count of importation of methamphetamine in violation
of 21 U.S.C. §§ 952 and 960.

    The Probation Office concluded that Acosta-Montes was
ineligible for safety valve relief because when he committed
the federal offense he remained on probation from his
shoplifting conviction, and so had more than one criminal
history point. The government accordingly recommended the
ten-year statutory mandatory minimum term of
imprisonment. Acosta-Montes sought and received a
continuance of his sentencing date, and then moved in state
court for an order retroactively terminating his probation to
May 6, 2008, the day before he committed the federal
offense. On April 1, 2009, the state court granted Acosta-
Montes’s motion over the state’s opposition, and there was no
appeal.

    At Acosta-Montes’s July 13, 2009 sentencing hearing, the
district court credited the order modifying Acosta-Montes’s
ongoing probationary term, and concluded that Acosta-
Montes was safety valve eligible. Responding to the
government’s objections, the district court stated that, being
“brutally honest,” it disagreed with “hamstringing a court
with a mandatory minimum where facts don’t deserve that.”
The court explained that, given the nature of Acosta-Montes’s
offense, the nonviolent nature of Acosta-Montes’s criminal
record, which consisted solely of misdemeanor offenses, and
Acosta-Montes’s personal circumstances, a ten-year term of
imprisonment was far too high. “The defendant isn’t free of
criminal conduct,” the court observed, “but he has been a
productive worker that has provided for his family and
children.” The court imposed a sentence of imprisonment of
46 months.
                    UNITED STATES V . YEPEZ                         15

                                  II.

     The government appealed Acosta-Montes’s below-
mandatory minimum sentence. Yepez also appealed his
sentence, arguing that the district court erred in declining to
give effect to the state court’s nunc pro tunc order. A divided
three-judge panel of this court consolidated the two cases for
the purposes of disposition and issued an opinion affirming
Acosta-Montes’s sentence and vacating Yepez’s sentence.
United States v. Yepez, 652 F.3d 1182, 1199 (9th Cir. 2011)
(District Judge Timlin,3 dissenting). Our panel decision got
it right, but a majority of the active judges of our court voted
to rehear the cases en banc, largely due to their potential
conflict with United States v. Alba-Flores, 577 F.3d 1104 (9th
Cir. 2009), which itself was inconsistent with United States
v. Mejia, 559 F.3d 1113 (9th Cir. 2009).

    Congress has set statutory minimum sentences for
numerous drug crimes, but has also enacted a “safety valve,”
18 U.S.C. § 3553(f), which permits courts 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.’” United States v. Shrestha, 86 F.3d 935, 938
(9th Cir. 1996) (quoting United States v. Arrington, 73 F.3d
144, 147 (7th Cir. 1996)). The purpose of the safety valve is
“to rectify an inequity in this system, whereby more culpable
defendants who could provide the Government with new or
useful information about drug sources fared better . . . than
lower-level offenders, such as drug couriers or ‘mules,’ who
typically have less knowledge.” Id. Its legislative history

  3
    The Honorable Robert J. Timlin, Senior United States District Judge
for the Central District of California, sitting by designation.
16               UNITED STATES V . YEPEZ

provides, “Ironically, [ ] for the very offenders who most
warrant proportionally lower sentences—offenders that by
guideline definitions are the least culpable—mandatory
minimums generally operate to block the sentence from
reflecting mitigating factors.” Id. (citing H.R. Rep. No.
103-460, 103d Cong., 2d Sess., 1994 WL 107571 (1994))
(alteration in original).

       A defendant is eligible for the safety valve
       where:

       (1) the defendant does not have more than 1
       criminal history point, as determined under
       the sentencing guidelines;

       (2) the defendant did not use violence or
       credible threats of violence or possess a
       firearm or other dangerous weapon (or induce
       another participant to do so) in connection
       with the offense;

       (3) the offense did not result in death or
       serious bodily injury to any person;

       (4) the defendant was not an organizer, leader,
       manager, or supervisor of others in the
       offense, as determined under the sentencing
       guidelines and was not engaged in a
       continuing criminal enterprise, as defined in
       section 408 of the Controlled Substances Act;
       and

       (5) not later than the time of the sentencing
       hearing, the defendant has truthfully provided
                  UNITED STATES V . YEPEZ                   17

       to the Government all information and
       evidence the defendant has concerning the
       offense or offenses that were part of the same
       course of conduct or of a common scheme or
       plan, but the fact that the defendant has no
       relevant or useful other information to provide
       or that the Government is already aware of the
       information shall not preclude a determination
       by the court that the defendant has complied
       with this requirement.

18 U.S.C. § 3553(f).

    In each of these appeals, there is no question that the
defendants meet four of these five requirements, including
truthful government cooperation; the only question is whether
either of the defendants had more than one criminal history
point “as determined under the Sentencing Guidelines.”
18 U.S.C. § 3553(f)(1). Under the Guidelines, a defendant
receives two criminal history points “if the defendant
committed the instant offense while under any criminal
justice sentence, including probation . . . .” U.S.S.G.
§ 4A1.1(d). In other words, each defendant’s eligibility for
safety valve relief turns on whether he was on probation when
he committed his federal offense.

                             III.

    As the California courts have regularly and routinely
recognized for a century, courts in California retain and
exercise very broad supervisory authority over ongoing
probationary terms. See, e.g., People v. Howard, 946 P.2d
828, 835 (Cal. 1997); People v. Carbajal, 899 P.2d 67, 70
(Cal. 1995) (noting that state courts have “broad discretion to
18                UNITED STATES V . YEPEZ

determine whether an eligible defendant is suitable for
probation and, if so, under what conditions”) (citing Cal.
Penal Code § 1203.1(b)); People v. Cookson, 820 P.2d 278,
281 (Cal. 1991) (“A court may revoke or modify a term of
probation at any time before the expiration of that term. This
power to modify includes the power to extend the
probationary term.”) (citation omitted); People v. Lippner,
26 P.2d 457, 458 (Cal. 1933) (“[T]he trial court is clothed
with a wide discretion in the granting and revoking of the
probation of a person convicted of crime.”); People v.
Kwizera, 93 Cal. Rptr. 2d 522, 523 (Ct. App. 2000) (“[T]he
trial court has authority to empower the probation department
with authority to supervise the probation conditions.”); In re
Gonzales, 118 Cal. Rptr. 69, 71 (Ct. App. 1974) (“A court is
vested with continuing discretion to continue a defendant on
probation or to revoke probation. The exercise of that
discretion is a judicial power manifested through the judge’s
personal examination of the case before him . . . .”) (citations
omitted); People v. Buford, 117 Cal. Rptr. 333, 337 (Ct. App.
1974) (“Just as the Adult Authority has continuing
jurisdiction over its parolees, so the court has continuing
jurisdiction over its probationers.”) (citations omitted);
People v. Brown, 244 P.2d 702, 704 (Cal. Ct. App. 1952);
People v. O’Donnell, 174 P. 102, 104 (Cal. Ct. App. 1918)
(“The authority in a court to suspend a sentence or the
execution thereof in a criminal case and liberating the
defendant for a certain period is wholly statutory, and the
statute itself furnishes the measure of the power which may
thus be exercised.”).

   The “wholly statutory,” Howard, 946 P.2d at 835, wide-
ranging authority of California state courts to supervise—as
well as to modify or revoke—ongoing probationary terms is
                  UNITED STATES V . YEPEZ                   19

set forth in California Penal Code § 1203.3(a), which
provides:

       The court shall have authority at any time
       during the term of probation to revoke,
       modify, or change its order of suspension of
       imposition or execution of sentence. The court
       may at any time when the ends of justice will
       be subserved thereby, and when the good
       conduct and reform of the person so held on
       probation shall warrant it, terminate the period
       of probation, and discharge the person so
       held.

The State recognizes the important role of probation in the
criminal justice system. As the California Supreme Court has
explained, “[a]n integral and important part of the penological
plan of California is the discretionary retention in the trial
court of jurisdiction over the defendant and the cause of
action against him [or her] . . . by virtue of the probation
procedures.” People v. Feyrer, 226 P.3d 998, 1007 (Cal.
2010) (quoting People v. Banks, 348 P.2d 102, 111 (Cal.
1959)) (alteration in original). The California Supreme Court
has also observed that a

       [g]rant of probation is, of course, qualitatively
       different from such traditional forms of
       punishment as fines or imprisonment.
       Probation is neither “punishment” nor a
       criminal “judgment.” Instead, courts deem
       probation an act of clemency in lieu of
       punishment, and its primary purpose is
       rehabilitative in nature. . . .
20                  UNITED STATES V . YEPEZ

         [T]he authority to grant probation and to
         suspend imposition or execution of sentence
         is wholly statutory. During the probationary
         period, the court retains jurisdiction over the
         defendant, and at any time during that period
         the court may, subject to statutory restrictions,
         modify the order suspending imposition or
         execution of sentence.

Howard, 946 P.2d at 835 (internal citations omitted).

    California’s probation statutes reflect the understanding
that courts supervising probation will actually supervise, i.e.,
change the circumstances to serve the “ends of justice,” see,
e.g., Cal. Penal Code § 1203.3, and terminate probation when
warranted by the “good conduct and reform” of the
supervised individuals. Id. The supervisory role of the state
sentencing courts is highlighted by the state courts’
recognition that authority under § 1203.3 immediately ends
once the period of probation is over.4

   The California trial courts’ authority over ongoing terms
of probation granted by California Penal Code § 1203.3
explicitly differs from the power that California has given its
courts to set aside convictions under California Penal Code
§ 1203.4(a). Section 1203.4(a) governs only persons who

  4
    The California Supreme Court has repeatedly observed: “The cases
[concerning California Penal Code § 1203.3] have consistently taken the
view announced in People v. O’Donnell, 174 P. 102, 104 (Cal. Ct. App.
1918), that . . . ‘the court loses jurisdiction or power to make an order
revoking or modifying the order suspending the imposition of sentence or
the execution thereof and admitting the defendant to probation after the
probationary period has expired.’” In re Griffin, 431 P.2d 625, 627 (Cal.
1967) (collecting cases).
                  UNITED STATES V . YEPEZ                   21

have already completed probation or for whom probation has
been terminated. It provides that

       in any other case in which a court, in its
       discretion and the interests of justice,
       determines that a defendant should be granted
       the relief available under this section, the
       defendant shall, at any time after the
       termination of the period of probation, if he or
       she is not then serving a sentence for any
       offense, on probation for any offense, or
       charged with the commission of any offense,
       be permitted by the court to withdraw his or
       her plea of guilty or plea of nolo contendere
       and enter a plea of not guilty; or, if he or she
       has been convicted after a plea of not guilty,
       the court shall set aside the verdict of guilty;
       and, in either case, the court shall thereupon
       dismiss the accusations or information against
       the defendant and except as noted below, he
       or she shall thereafter be released from all
       penalties and disabilities resulting from the
       offense of which he or she has been convicted
       ....

Cal. Penal Code § 1203.4(a). Unlike § 1203.3, which grants
courts authority over ongoing probationary terms, a “grant of
relief under section 1203.4 is intended to reward an individual
who successfully completes probation by mitigating some of
the consequences of his conviction and, with a few
exceptions, to restore him to his former status in society to
the extent the Legislature has power to do so.” People v.
Mgebrov, 82 Cal. Rptr. 3d 778, 781 (Ct. App. 2008)
22                   UNITED STATES V . YEPEZ

(emphasis added) (quoting People v. Field, 37 Cal. Rptr. 2d
803, 808 (Ct. App. 1995)).

                                   IV.

    The majority’s assertion that the state court judges who
issued the nunc pro tunc orders here were attempting to
“alter[] history and the underlying facts” is both incorrect and
unseemly. The nunc pro tunc orders alter the legal status of
the defendants as of the day before they committed their
federal offense. The supervising judges knew what they were
doing and why they were doing it—the goal was to permit the
district court to render a just sentence by allowing it the
discretion to engage in a full consideration of the § 3553(a)
factors enacted by Congress.5 Far from eliminating a


 5
   In imposing a sentence, 18 U.S.C. § 3553(a) requires: “The court shall
impose a sentence sufficient, but not greater than necessary, to comply
with the purposes set forth in paragraph (2) of this subsection. The court,
in determining the particular sentence to be imposed, shall consider—

         (1) the nature and circumstances of the offense and the
         history and characteristics of the defendant;

         (2) the need for the sentence imposed—

             (A) to reflect the seriousness of the offense, to
         promote respect for the law, and to provide just
         punishment for the offense;

             (B) to afford adequate deterrence to criminal
         conduct;

             (C) to protect the public from further crimes of the
         defendant; and
            UNITED STATES V . YEPEZ                          23



    (D) to provide the defendant with needed
educational or vocational training, medical care, or
other correctional treatment in the most effective
manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range
established for—

     (A) the applicable category of offense committed
by the applicable category of defendant as set forth in
the guidelines—

         (i) issued by the Sentencing Commission
pursuant to section 994 (a)(1) of title 28, United States
Code, subject to any amendments made to such
guidelines by act of Congress (regardless of whether
such amendments have yet to be incorporated by the
Sentencing Commission into amendments issued under
section 994 (p) of title 28); and

           (ii) that, except as provided in section 3742
(g), are in effect on the date the defendant is sentenced;
or

     (B) in the case of a violation of probation or
supervised release, the applicable guidelines or policy
statements issued by the Sentencing Commission
pursuant to section 994 (a)(3) of title 28, United States
Code, taking into account any amendments made to
such guidelines or policy statements by act of Congress
(regardless of whether such amendments have yet to be
incorporated by the Sentencing Commission into
amendments issued under section 994 (p) of title 28);

(5) any pertinent policy statement—
24                  UNITED STATES V . YEPEZ

safety valve criterion by “judicial fiat,” the state court judges
simply recognized the heavy dependence of the federal
sentencing scheme upon and interaction with state court
sentencing regimes.

    The majority opinion is animated by the fear that
crediting the state court nunc pro tunc orders will usurp
federal power by giving state courts “the authority to change
a defendant’s federal sentence.” Yet, Yepez and Acosta-
Montes did not forum-shop for sympathetic state judges
willing to interfere with federal sentencing; each defendant
filed his motion to terminate probation nunc pro tunc with the
very court charged with supervising his probation under
California’s statutory scheme. Under § 1203.3, the state
judges did not have carte blanche to modify the probationary
terms at their whim. Instead, § 1203.3 sets forth a standard
for the termination of probation: termination must serve “the
ends of justice” and be warranted by the “good conduct and


             (A) issued by the Sentencing Commission pursuant
        to section 994 (a)(2) of title 28, United States Code,
        subject to any amendments made to such policy
        statement by act of Congress (regardless of whether
        such amendments have yet to be incorporated by the
        Sentencing Commission into amendments issued under
        section 994 (p) of title 28); and

             (B) that, except as provided in section 3742 (g), is
        in effect on the date the defendant is sentenced.

        (6) the need to avoid unwarranted sentence disparities
        among defendants with similar records who have been
        found guilty of similar conduct; and

        (7) the need to provide restitution to any victims of the
        offense.
                     UNITED STATES V . YEPEZ                            25

reform of the person so held on probation.” Cal. Penal Code
§ 1203.3(a). Yepez and Acosta-Montes were forthright in
their state motion papers, and they explicitly informed their
supervising judges about: 1) the guilty pleas entered in their
federal criminal proceedings; and 2) the potential mandatory
minimums each was facing in federal court. Provided with
information about how the individuals they were supervising
could be federally sentenced in the absence of termination
orders, the state court judges applied California law and
determined that the requirements of § 1203.3(a) were
satisfied. If those state judges were of the view that either
Yepez or Acosta-Montes was not in “good conduct” or had
not “reformed” within the meaning of California law, they
certainly had within their power the ability to deny the
motions.

    Although Yepez’s and Acosta-Montes’s state court judges
were “mindful of the federal implications of their sentences,”
the majority is “wrong to cast aspersions on this salutary
practice.” Alba-Flores, 577 F.3d at 1112 (Kozinski, C.J.,
dissenting). Indeed, the entire concept of calculating criminal
history points is predicated on respect for and deference to
state court criminal proceedings; the system would unravel if
district courts were to second-guess the motives of every state
court judge who had previously convicted or sentenced a
defendant.6 We have previously stated that “the Guidelines

   6
     The Guidelines and federal statutes regularly rely on state court
determinations of a defendant’s guilt or criminal status in determining
whether to impose enhanced penalties. See, e.g., 18 U.S.C. § 924(e)(2)
(defining “serious drug offense” to include qualifying offenses “under
State law”); 18 U.S.C. § 924(g) (providing for enhanced penalty for any
individual who transports firearms and also “violates any state law relating
to any controlled substance”); U .S.S.G. § 4A1.2(c) (including under
relevant “Sentences Counted” any “violations under state criminal law”
26                   UNITED STATES V . YEPEZ

are concerned only with the state court’s final determination,
not with the soundness of its reasoning.” United States v.
Guthrie, 931 F.2d 564, 572 (9th Cir. 1991). In Mejia, for
instance, it is entirely possible that the state judge who
terminated Mejia’s probation just three days after it was
imposed did so solely because of concerns about collateral
federal sentencing consequences. Yet the panel saw no
reason to question the motives of the judge overseeing
Mejia’s probation. See Mejia, 559 F.3d at 1116. The
majority’s categorical rule creates a sharp distinction between
state court sentencing orders issued prior to the commission
of a federal offense, as to which a presumption of validity
applies, and those issued after commission of a federal
offense, which federal judges must now ignore.

    Permitting district courts to credit state court orders
retroactively modifying probationary sentences does not
somehow allow state courts to usurp the sentencing power of
the federal judiciary. Quite the opposite is true. Allowing
federal courts the discretion to credit such orders enhances
the sentencing discretion of federal judges. In sentencing
Yepez and Acosta-Montes, both district judges repeatedly
expressed their frustration with the criminal history
calculations that eliminated eligibility for otherwise justified
safety valve relief. All such a rule does is make room for
district courts facing similar cases to impose individualized
sentences consistent with the principles set forth in 18 U.S.C.
§ 3553(a), rather than compelling judges, against their better
judgment, to impose sentences they find grossly excessive.


in determining whether to impose a sentence enhancement); U.S.S.G.
§ 4A1.2(o) (defining a “felony offense” as “any federal, state, or local
offense” for sentence enhancement purposes); U.S.S.G. § 4B1.2(a)
(defining “crime of violence” as “any offense under federal or state law”).
                  UNITED STATES V . YEPEZ                     27

                               V.

    As a threshold matter, it is clear that giving effect to the
state court orders does not interfere with the will of Congress,
and in fact is consistent with the principles Congress enacted
to govern sentencing. In determining eligibility for safety
valve relief, Congress explicitly relied on the Sentencing
Guidelines for the calculation of the criminal history points.
18 U.S.C. § 3553(f). The Guidelines, in turn, instruct that
judges look to state laws and state court rulings to determine
whether a defendant is serving a sentence under state law.
See U.S.S.G. § 4A1.1 cmt. n.5 (“Prior convictions may
represent convictions in the . . . fifty state systems . . . .”);
Alba-Flores, 577 F.3d at 1112 (Kozinski, C.J., dissenting)
(“The federal system relies heavily on state courts in
sentencing defendants. . . .”); United States v. Mendoza-
Morales, 347 F.3d 772, 775 (9th Cir. 2003) (counting a state
sentence as a “prior sentence of imprisonment” for Guidelines
purposes). Given this framework, it is clear that Congress has
premised the availability of safety valve relief on state law.
Thus, the only real question in these cases is whether nunc
pro tunc orders are authorized under California law. If they
are, then giving effect to them is, by definition, consistent
with the will of Congress.

    The Sentencing Commission did not address whether or
how to count a term of probation that was terminated
pursuant to state law. While Application Notes 6 and 10
address circumstances under which certain prior convictions
should not be counted for the purposes of arriving at a
Guidelines sentence, neither Note says anything about how
courts should count ongoing probationary terms modified or
retroactively terminated by state court orders, nor does any
other Application Note speak to this issue.
28               UNITED STATES V . YEPEZ

   According to Application Note 6, which concerns
“Reversed, Vacated, or Invalidated Convictions”:

       Sentences resulting from convictions that (A)
       have been reversed or vacated because of
       errors of law or because of subsequently
       discovered evidence exonerating the
       defendant, or (B) have been ruled
       constitutionally invalid in a prior case are not
       to be counted. With respect to the current
       sentencing proceeding, this guideline and
       commentary do not confer upon the defendant
       any right to attack collaterally a prior
       conviction or sentence beyond any such rights
       otherwise recognized in law (e.g., 21 U.S.C.
       § 851 expressly provides that a defendant may
       collaterally attack certain prior convictions).

U.S.S.G. § 4A1.2 cmt. n.6 (2010) (emphasis added).
Application Note 10, which concerns “Convictions Set Aside
or Defendant Pardoned,” states:

       A number of jurisdictions have various
       procedures pursuant to which previous
       convictions may be set aside or the defendant
       may be pardoned for reasons unrelated to
       innocence or errors of law, e.g., in order to
       restore civil rights or to remove the stigma
       associated with a criminal conviction.
       Sentences resulting from such convictions are
       to be counted.          However, expunged
       convictions are not counted. § 4A1.2(j).

U.S.S.G. § 4A1.2 cmt. n.10 (2010) (emphasis added).
                  UNITED STATES V . YEPEZ                    29

    Although the Guidelines themselves are advisory only,
the applicable Guidelines sentence must be calculated
correctly. See, e.g., United States v. Carty, 520 F.3d 984, 993
(9th Cir. 2008) (en banc). Commentary in the Application
Notes interpreting or explaining a guideline “is authoritative
unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that
guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993);
see also United States v. Bays, 589 F.3d 1035, 1037 (9th Cir.
2009). Neither of these two Application Notes, however,
addresses how sentencing courts are to apply state trial court
orders that retroactively modify or terminate ongoing
probationary terms. The state court orders concerning Yepez
and Acosta-Montes did not set aside, expunge, reverse,
vacate, or invalidate their convictions, nor did they pardon the
defendants. As Judge Lay of the Eighth Circuit has observed:

       There is no question that the state court’s
       modification of the probationary terms did not
       “expunge” [the defendant’s] convictions.
       Similarly, there is no question that the
       modification of the probationary sentence did
       not “set aside” the state court convictions.
       Application Note 10 simply does not address
       the modification of a prior sentence and is
       therefore not controlling.

United States v. Martinez-Cortez, 354 F.3d 830, 834 (8th Cir.
2004) (Lay, J., dissenting).

    The majority also points us to the introductory
commentary to the criminal history section of Chapter 4 of
the Sentencing Guidelines, which recognizes that “[a]
defendant with a record of prior criminal behavior is more
30                UNITED STATES V . YEPEZ

culpable than a first offender and thus deserving of greater
punishment,” U.S.S.G. § 4A intro. cmt. (2010), to support its
view that Yepez and Acosta-Montes’s now terminated
probationary sentences render them more culpable than a
first-time offender, and thus more deserving of a harsh
mandatory minimum sentence. While the commentary sets
forth a reasonable general principle, it is not particularly apt
here, where the state courts terminated probation precisely
because the probationary sentence did not render Yepez and
Acosta-Montes “more culpable.” Indeed, the Commentary
supports refusing to credit these sorts of state court orders
only if we begin with the assumption that the probationary
terms were ongoing at the times the defendants committed
their federal offenses. The majority’s reasoning is circular:
district courts should not credit nunc pro tunc orders
modifying ongoing probationary terms because doing so
would prevent those courts from effectively punishing
defendants who commit crimes while already on probation,
and it is clear that these sorts of defendants were on probation
when they committed their federal crimes because courts are
not permitted to credit nunc pro tunc orders modifying
ongoing probationary terms. If we begin instead with the
opposite assumption, that due to the operation of the
California state court orders the defendants were not on
probation at the times they committed their federal offenses,
then they are not any more culpable than a defendant with
only one criminal history point. And, because a California
state supervising trial judge may legally modify or terminate
probation only when he finds that “the good conduct and
reform of the person” warrants it, we should instead start with
the premise that the defendant is not as culpable as other
defendants, who are serving ongoing probationary terms that
have not been terminated. Cal. Penal Code § 1203.3(a).
                 UNITED STATES V . YEPEZ                  31

    While the Application Notes do not directly address the
situation before us, at least one Application Note in the
Commentary undercuts the government’s argument,
implicitly adopted by the majority, that, in calculating
criminal history under the Guidelines, judges should take a
“snapshot” of the situation at the exact moment the federal
offense is committed, and should not allow that snapshot to
be “photoshopped” later. Under that theory, courts applying
the Guidelines should disregard what occurs after the
commission of the federal offense but before sentencing for
that offense. Application Note 1 expressly directs district
courts to consider post-commission sentences when
sentencing, which certainly will have altered the “snapshot”
taken on the day the offense was committed:

       “Prior sentence” means a sentence imposed
       prior to sentencing on the instant offense,
       other than a sentence for conduct that is part
       of the instant offense. See §4A1.2(a). A
       sentence imposed after the defendant’s
       commencement of the instant offense, but
       prior to sentencing on the instant offense, is a
       prior sentence if it was for conduct other than
       conduct that was part of the instant offense.

U.S.S.G. § 4A1.2 cmt. n.1 (2010) (emphasis added). In other
words, in counting “prior sentences,” courts are required to
count at least some sentences that had not yet been imposed
at the time the defendant committed the instant offense, but
that were imposed before sentencing for that offense. Blanket
acceptance of the government’s “snapshot” theory
undermines Application Note 1.
32                   UNITED STATES V . YEPEZ

    Due to the deafening silence of Congress and the
Sentencing Commission, the majority can point to no
statutory or Guidelines provision instructing us to disregard
the state courts’ nunc pro tunc orders. Instead, the majority
turns to a canon of construction, asserting, through multiple
levels of inference, that the canon suggests that the proper
interpretation of the Guidelines requires that we disregard the
state court orders. Accepting this argument at face value,7 the
majority does nothing but to foster ambiguity in the
Guidelines, making the rule of lenity all the more appropriate,
as discussed below. See Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 296 (2012)
(discussing rule of lenity).

                                  VI.

    Allowing the federal district courts to recognize the nunc
pro tunc orders comports with our precedent, principles of
comity and federalism, the rule of lenity and the concept of
individualized sentences, including the parsimony principle,
embodied in the sentencing statute Congress enacted,
18 U.S.C. § 3553(a).

    We have previously so held. In United States v. Mejia,
the defendant was sentenced in state court to two years of
probation for resisting arrest. 559 F.3d 1113. A few days

  7
   The Sentencing Commission’s decision to exclude foreign and tribal
court convictions from the list of convictions which qualify for an
enhancement does not indicate that it contemplated the scenario before us,
much less that it intended that the federal courts disregard state court
orders of this nature. See Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 107 (warning that the expresio
unius canon “must be applied with great caution, since its application
depends so much on context.”).
                  UNITED STATES V . YEPEZ                    33

later, and before Mejia committed his federal crime, the state
court terminated his probation. Id. at 1116. The Guidelines
in that case added a point to the criminal history calculation
if the defendant had been sentenced to “a term of probation
of more than one year.” Id. Despite the fact that the sentence
imposed qualified for this enhancement, we chose to give
effect to the order terminating the probation, holding that
“Mejia’s probationary sentence combined with his actual
service of only a three-day probationary term was less than
the one year required by [the Guidelines] for inclusion in his
criminal history.” Id. The only difference between Mejia and
these cases is the fact that the orders here came after, rather
than before, the federal offense conduct.

    United States v. Alba-Flores, 577 F.3d 1104, is not to the
contrary. The defendant in Alba-Flores was serving a term
of probation of more than a year when he committed his
federal offense. Id. at 1106. The state court reduced the term
to less than a year, but the effective date of the termination
was after the federal offense conduct and was not made
retroactive by the state court. Id. The result was that, even in
the eyes of the state, the defendant remained “under a
criminal justice sentence when he committed his federal
offense.” Id. at 1111 (internal quotation marks omitted and
emphasis added).         The Alba-Flores majority, chiefly
concerned with the defendant’s legal status “when he
committed his federal offense,” chose not to authorize safety
valve relief. Id. (emphasis added). This is a sensible
outcome; the Guidelines instruct that we look to a defendant’s
status under state law when he committed the federal offense,
and under the applicable state law in Alba-Flores, the
defendant was on probation at the time of the offense.
34                UNITED STATES V . YEPEZ

    By contrast, here state law explicitly tells us that the
defendants were not under terms of probation when they
committed their federal offenses. As discussed above, the
state courts in Yepez and Acosta-Montes retroactively
changed the defendants’ legal status so that, in the eyes of the
state, they were not on probation at the time of their federal
offenses. Again, the Guidelines instruct us to look to state
law, and under California law the defendants were not on
probation at the time of their federal offenses. Therefore,
Alba-Flores does not control in this situation.

    Where, as here, state laws permit the modification of
ongoing terms of probation, principles of comity, which the
United States Supreme Court has recognized as “a bulwark of
the federal system,” Allen, 449 U.S. at 96, require that the
federal courts should, where possible, recognize state court
actions modifying or terminating those probationary terms.
Forty years ago, the Supreme Court addressed the nature and
importance of comity between federal and state courts in its
decision in Younger v. Harris, 401 U.S. 37, 44–45 (1971):

       [T]he concept [of comity represents] a system
       in which there is sensitivity to the legitimate
       interests of both State and National
       Governments, and in which the National
       Government, anxious though it may be to
       vindicate and protect federal rights and
       federal interests, always endeavors to do so in
       ways that will not unduly interfere with the
       legitimate activities of the States. It should
       never be forgotten that this slogan, “Our
       Federalism,” born in the early struggling days
       of our Union of States, occupies a highly
                 UNITED STATES V . YEPEZ                   35

       important place in our Nation’s history and its
       future.

By crediting state trial court terminations of ongoing
probationary terms, federal courts respect the fundamental
“[p]rinciples of comity and federalism [that] counsel against
substituting our judgment for that of the state courts” which
are actually supervising the individuals on probation. Taylor
v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004); see also
United States v. Alba-Flores, 577 F.3d 1104, 1112 (9th Cir.
2009) (Kozinski, C.J., dissenting) (“The federal system relies
heavily on state courts in sentencing defendants and it’s
wrong and pernicious to call these judgments into question
because the state judges may have taken into account the
effects on federal sentencing. State judges are often mindful
of the federal implications of their sentences, as well they
should be.”).

    We are thus unable to glean from the text of the
Guidelines and the Application Notes thereto an answer to the
question with which we are confronted. The clause “if the
defendant committed the instant offense while under any
criminal justice sentence, including probation,” U.S.S.G.
§ 4A1.1(d), is susceptible to multiple interpretations. Where
the scope of a criminal statute is ambiguous, we invoke the
rule of lenity and resolve any doubt in the defendant’s favor.
“In these circumstances—where text, structure, and history
fail to establish that the Government’s position is
unambiguously correct—we . . . resolve the ambiguity in [the
defendant]’s favor.” United States v. Cabaccang, 332 F.3d
622, 635 (9th Cir. 2003) (en banc) (alterations and emphasis
in original) (quoting United States v. Granderson, 511 U.S.
39, 54 (1994)) (internal quotation marks omitted); see also
Albernaz v. United States, 450 U.S. 333, 342 (1981) (“This
36                UNITED STATES V . YEPEZ

policy of lenity means that the Court will not interpret a
federal criminal statute so as to increase the penalty that it
places on an individual when such an interpretation can be
based on no more than a guess as to what Congress
intended.”) (quoting Bifulco v. United States, 447 U.S. 381,
387 (1980)); People v. Materne, 72 F.3d 103, 106 (9th Cir.
1995) (“[T]he rule of lenity applies where a criminal statute
is vague enough to deem both the defendant’s and the
government’s interpretations of it as reasonable.”). Our job
is to interpret and apply the Guidelines. Where, as here and
in Alba-Flores, the Guidelines do not address the effect of the
state court order at issue, we may defer to principles of
federalism and comity and give effect to the order. Doing so
is consistent with the rule of lenity, pursuant to which
ambiguous statutes are resolved in the defendant’s favor. See
Cabaccang, 332 F.3d at 635. Applying the rule of lenity is
particularly appropriate here, where the predicate state
offenses were so minor that each of the four trial judges
involved—the two state trial court supervising judges and the
two federal district court sentencing judges—found the
mandatory minimum sentence unjust under the circumstances
of the crimes of conviction, and thus contrary to the directives
enacted by Congress in § 3553(a). Chief Judge Kozinski is
correct when he writes that “[w]e shouldn’t be so eager to
override the hands-on judgment of . . . trial judges who have
actually seen the defendant and are far more familiar with his
need for punishment than we are.” Alba-Flores, 577 F.3d at
1113 (Kozinski, C.J., dissenting).

     That federal courts should be allowed to credit the
retroactive termination of probationary sentences when
calculating criminal history points for safety valve eligibility
does not mean that they must. What they must do is consider
all of the sentencing factors set forth in 18 U.S.C. § 3553, to
                  UNITED STATES V . YEPEZ                   37

impose a sentence making “an individualized determination
based on the facts.” Carty, 520 F.3d at 991. After correctly
calculating the applicable Guidelines range, including
factoring in safety valve eligibility, a district court may
impose an above-Guidelines sentence when it is warranted.
See, e.g., United States v. Cardenas-Juarez, 469 F.3d 1331,
1334 (9th Cir. 2006) (“When the statutory safety valve
requirements of § 3553(f) are met, ‘district courts still “must
consult [the] Guidelines and take them into account when
sentencing,” even though they now have the discretion to
impose non-Guidelines sentences.’”) (quoting United States
v. Cantrell, 433 F.3d 1269, 1278 (9th Cir. 2006)). And
because the state supervising judges are aware of the
implications of modification orders in federal sentencing, the
state courts are unlikely to issue such an order where they
believe safety-valve eligibility is not warranted.

                             VII.

    The majority also points to United States v.
Martinez-Cortez, 354 F.3d 830 (8th Cir. 2004), and United
States v. Pech-Aboytes, 562 F.3d 1234 (10th Cir. 2009), two
out-of-circuit decisions (relied on by the Alba-Flores
majority) holding that sentencing courts should not credit
state nunc pro tunc orders modifying terms of probation.
Unlike either Yepez or Acosta-Montes, however, Martinez-
Cortez sought to modify an already completed sentence.
Both the Eighth and Tenth Circuits, moreover, relied on an
incorrect view of the “implications” of the Application Notes
to U.S.S.G. § 4A1.2, and ultimately reached conclusions not
in fact supported by any authority.

   In Martinez-Cortez, the defendant, Jerardo Martinez-
Cortez, pleaded guilty to conspiracy to distribute
38                UNITED STATES V . YEPEZ

methamphetamine. Martinez-Cortez, 354 F.3d at 831.
Martinez-Cortez had two previous Minnesota state
convictions: one for leaving the scene of an accident, and one
for driving while intoxicated.         Id.     For the first,
Martinez-Cortez had been sentenced to ninety days in jail,
with eighty-nine days suspended, followed by one year of
probation. Id. For the second, he had been sentenced to
thirty days in jail, with twenty-nine days suspended, and
placed on probation for two years. Id. Martinez-Cortez was
on probation from the DWI offense when he committed his
federal drug offense, but had completed the probationary term
by the time he was sentenced in federal court. Id.

    After he pleaded guilty to his federal offense, but before
sentencing, Martinez-Cortez sought and received nunc pro
tunc orders from two state judges modifying his already-
completed probationary terms. Id. He sought and received
a reduction of his first probationary term (for leaving the
scene of an accident) from 365 days to 364 days “for the
express purpose of avoiding a criminal history point in his
federal drug sentencing.” Id. For the DWI term of probation,
Martinez-Cortez “sought and received a reduction of the term
of probation from June 19, 2002, to September 30, 2000, so
‘he would be off supervision during the time the government
alleges the federal [drug] conspiracy was in existence.’” Id.
The district court credited the nunc pro tunc orders, and found
that Martinez-Cortez was safety valve eligible; the Eighth
Circuit reversed, with one judge dissenting. Id.

    In concluding that Martinez-Cortez was ineligible for
safety valve relief, the Eighth Circuit majority concluded that,
as “a factual matter,” Martinez-Cortez had committed his
federal drug offense “while he was on probation for the DWI
offense.” Id. at 832. The majority ultimately held that, as
                 UNITED STATES V . YEPEZ                   39

Martinez-Cortez had already served his sentences before
asking for a nunc pro tunc modification, this was not one of
those situations in which the Sentencing Guidelines “permit
courts to disregard some state court convictions and sentences
for the purposes of criminal history.” Id. The majority
concluded that “as a matter of federal law, Martinez-Cortez’s
lesser step of modifying his sentences after they were served
for reasons unrelated to his innocence or errors of law is not
a valid basis for not counting the sentences for criminal
history purposes.” Id. (emphasis added).

    Writing in dissent, Judge Lay criticized the majority
decision as being incorrect and “without authority.” Id. at
833 (Lay, J. dissenting). “The majority opinion, in all due
respect,” he wrote

       fails to address the fundamental principles of
       federalism and deference owed by federal
       courts to state courts in processing their own
       criminal cases.       The structure of the
       Guidelines evidences an intent on the part of
       the Sentencing Commission to look to the
       sentences actually imposed by state courts for
       state criminal convictions when calculating a
       federal defendant’s criminal history score.
       Consonant with this idea, the Supreme Court
       has made clear that the proper forum in which
       to attack state convictions (and their attendant
       sentences) is a state court, not a federal one.
       In assessing the length of a federal sentence,
       therefore, the sentencing court looks only at
       the prior state sentences as they exist at the
       time of sentencing. . . . More importantly, the
       Defendant appeared before two distinguished
40               UNITED STATES V . YEPEZ

       state court judges who ordered the terms of
       probation modified. There was no appeal from
       these modifications. The state court
       proceedings thus carry with them a
       presumption of regularity that the majority
       lightly casts aside.

Id. at 833–34 (citations omitted). Like the majority here, the
majority there “fail[ed] to provide proper respect for and
deference to the state court’s modification of its own
sentences.” Id. at 835.

    Moreover, Martinez-Cortez is factually distinguishable
from the two appeals before us. What Martinez-Cortez
sought to do by having his already completed sentences
modified by action of state law is different from what either
Yepez or Acosta-Montes sought to do by asking the trial
judges overseeing their ongoing probationary terms to modify
those terms. See, e.g., Cal. Penal Code § 1203.3 (addressing
the authority of state courts during the term of probation “to
revoke, modify, or change its order of suspension of
imposition or execution of sentence”).

    In Pech-Aboytes, the defendant, Paul Pech-Aboytes (a/k/a
Javier Solis-Aboytes), pleaded guilty in 2007 to one count of
possession with intent to distribute methamphetamine.
562 F.3d at 1235. In 2002, Pech-Aboytes had been convicted
of a misdemeanor in California state court for manufacturing
government-issued commercial drivers licenses, and had been
sentenced to thirty-six months of probation. Id. at 1236 n.1.
Due to “several probation revocations and reinstatements,”
Pech-Aboytes’s California state probation was ongoing in
2007, when he committed his federal drug offense. Id. at
1236 n.2. After he pleaded guilty, but before he was
                  UNITED STATES V . YEPEZ                   41

sentenced, Pech-Aboytes sought and received a nunc pro tunc
order from a California state court terminating his probation
as of September 30, 2007. Id. at 1236. At sentencing, the
district court (relying on the Eighth Circuit’s decision in
Martinez-Cortez) declined to credit the state nunc pro tunc
order, and found that Pech-Aboytes was not entitled to safety
valve relief; the Tenth Circuit affirmed. Id. at 1238–39.

    Concluding that Pech-Aboytes was not eligible for safety
valve relief, the Tenth Circuit cited Application Notes 6 and
10 to U.S.S.G. § 4A1.2, and reasoned that “the Guidelines are
specific about which prior convictions and sentences are
counted in calculating a defendant’s criminal history points,
and which prior convictions and sentences are not.” Id. at
1239. The Pech-Aboytes court then observed that “[t]he
implication” of Application Note 10 “is that the district court
should count previous convictions unless they have been set
aside because of a finding of innocence or legal error.” Id.

    The Tenth Circuit also relied on the introductory
commentary to the criminal history section of Chapter 4 of
the Sentencing Guidelines, which, as noted in Part VI, states
the general proposition that a “defendant with a record of
prior criminal behavior is more culpable than a first offender
and thus deserving of greater punishment.” U.S.S.G. § 4A
intro. cmt. This commentary, the court observed, “further
indicates that the Guidelines are intended to capture, via an
increase in criminal history points, the very behavior [the
defendant] was attempting to avoid: the commission of a
crime while under a probationary sentence. Such behavior is
directly relevant to the harsher, mandatory-minimum penalty
imposed when the safety-valve provision is inapplicable.”
Pech-Aboytes, 562 F.3d at 1240.
42                UNITED STATES V . YEPEZ

    The majority adopts this illogical reasoning. As
previously noted, neither Application Note 6 nor Application
Note 10 to U.S.S.G. § 4A1.2 addresses how sentencing courts
should view ongoing probationary terms that have been
modified by state orders. Given the specificity with which
these Application Notes dictate how courts should treat prior
sentences, and that neither Note addresses nunc pro tunc
orders modifying ongoing probationary terms, much less the
specific, and perhaps unique, procedures enacted by the
California State Legislature, it is not clear why the Tenth
Circuit thinks the “implication” of the Application Notes is
that the only previous convictions that the district court
should not count are those that have been set aside because of
a finding of innocence or legal error. Indeed, it is equally
reasonable to read the Application Notes to exclude ongoing
probationary terms that have been shortened by state
modification orders from the types of sentences that should
be counted, precisely because the defendants are not the more
culpable criminals deserving of harsher sentences.

                             VIII.

    We are faced with two competing historical and legal
realities: on the one hand, it is surely true that, at the times
Acosta-Montes and Yepez committed their federal offenses,
the state of California viewed them as on probation; it is
equally true that, at the time of federal sentencing, under
California law, they were not on probation when the offenses
were committed. Nothing in the Guidelines, or in the cases
cited by the parties, clearly indicates which of these realities
should trump the other for the purposes of calculating
criminal history points when determining the applicability of
the safety valve at the time of sentencing. Ultimately,
respecting “the fundamental principles of federalism and
                  UNITED STATES V . YEPEZ                    43

deference owed by federal courts to state courts in processing
their own criminal cases,” Martinez-Cortez, 354 F.3d at 833
(Lay, J., dissenting), and recognizing that the “federal system
relies heavily on state courts in sentencing defendants and it’s
wrong and pernicious to call these judgments into question
because the state judges may have taken into account the
effects on federal sentencing,” Alba-Flores, 577 F.3d at 1112
(Kozinski, C.J., dissenting), there is nothing that precludes
the district courts from taking into account these lawful state
nunc pro tunc orders when calculating the defendants’
criminal history score for purposes of safety valve eligibility.
And, after applying the § 3553 factors, if the district court
determines a higher sentence is warranted, it has the
discretion to impose such a sentence, but it is not required to
do so, if it believes such a sentence is unjust. Accordingly, I
would affirm Acosta-Montes’s sentence, vacate Yepez’s
sentence, and remand Yepez’s case for resentencing.
