                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-4141
                                   ___________

United States of America,               *
                                        *
                   Appellant,           * Appeal from the United States
                                        * District Court for the District
      v.                                * of Minnesota.
                                        *
Jerardo Martinez-Cortez,                *
                                        *
                   Appellee.            *
                                   ___________

                             Submitted: November 18, 2003

                                  Filed: January 13, 2004
                                   ___________

Before MURPHY, LAY, and FAGG, Circuit Judges.
                           ___________

FAGG, Circuit Judge.

      Jerardo Martinez-Cortez pleaded guilty to conspiracy to distribute five hundred
grams or more of methamphetamine in violation 21 U.S.C. §§ 846, 841(b)(1)(A). The
presentence report (PSR) concluded Martinez-Cortez had four criminal history points
based on two convictions in Minnesota state court. For leaving the scene of an
accident, Martinez-Cortez had been sentenced to ninety days in jail, with eighty-nine
days suspended, followed by one year of probation. Because he was sentenced to
probation for a year, the conviction resulted in one criminal history point. See U.S.
Sentencing Guidelines Manual (U.S.S.G.) § 4A1.2(c)(1)(A). For driving while
intoxicated, Martinez-Cortez had been sentenced to thirty days in jail, with twenty-
nine days stayed, and placed on probation for two years, resulting in one criminal
history point under § 4A1.1(c). See id. § 4A1.2 n.5 (DWI convictions are counted
and are not minor traffic infractions within the meaning of § 4A1.2(c)). Because
Martinez-Cortez was on probation for the DWI offense when he committed his
federal drug offense, he was assessed two criminal history points under § 4A1.1(d).

       After he pleaded guilty, but before sentencing, Martinez-Cortez filed motions
in Minnesota state court seeking to modify his state sentences nunc pro tunc.
Martinez-Cortez did not copy the federal prosecutor, who knew Martinez-Cortez was
returning to state court, but could not have anticipated the unusual relief Martinez-
Cortez would seek and receive. Although the probationary terms had already been
completed, Martinez-Cortez sought and obtained a reduction of the first term of
probation from 365 to 364 days for the express purpose of avoiding a criminal history
point in his federal drug sentencing. 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.” Nevertheless, Martinez-
Cortez did not seek to withdraw his guilty pleas and stipulated his state convictions
would count for any later enhancements under state law. Nor did Martinez-Cortez
seek to modify the terms of imprisonment.

       Over the Government’s objection, the district court calculated Martinez-
Cortez’s criminal history based on the modified state sentences and granted relief
under the safety valve, which permits sentencing below the statutory minimum
sentence when the defendant, among other things, has no “more than one criminal
history point, as determined under the sentencing guidelines.” 18 U.S.C. §
3553(f)(1); U.S.S.G. § 5C1.2. The Government appeals asserting the district court
committed error in finding Martinez-Cortez eligible for the safety valve. Reviewing
application of the Guidelines de novo, United States v. Webb, 218 F.3d 877, 879 (8th
Cir. 2000), we agree and thus reverse.

                                        -2-
       Martinez-Cortez faced a mandatory minimum sentence of ten years in prison
unless the safety valve could be applied. The safety valve would not be available if
Martinez-Cortez had more than one criminal history point. The Guidelines direct
courts to add criminal history points for “each prior sentence,” U.S.S.G. § 4A1.1,
except for specific misdemeanors and petty crimes, for which criminal history points
are added or not according to § 4A1.2(c). A sentence for leaving the scene of an
accident is counted only if the sentence was at least one year of probation or at least
thirty days imprisonment. Id. § 4A1.2(c)(1). A sentence for driving while intoxicated
is always counted, regardless of the length. Id. n.5. Whether an earlier sentence
counts for criminal history purposes is a question of federal law. Webb, 218 F.3d at
879.

       The Guidelines required the district court to count Martinez-Cortez’s DWI
conviction, regardless of the term of probation. U.S.S.G. § 4A1.1(c); id. § 4A1.2 n.5;
see United States v. Stone, 325 F.3d 1030, 1031 (8th Cir. 2003). Because the sentence
was less than sixty days, the district court was required to assess one criminal history
point under § 4A1.1(c). The district court was also required to assess two criminal
history points if Martinez-Cortez committed his federal drug offense “while under
any criminal justice sentence, including probation.” U.S.S.G. § 4A1.1(d). Whether
Martinez-Cortez was under a criminal justice sentence for purposes of § 4A1.1(d) is
a question of federal law. United States v. Renfrew, 957 F.2d 525, 526-27 (8th Cir.
1992). As a factual matter, Martinez committed his drug offense while he was on
probation for the DWI offense. Martinez-Cortez pleaded guilty to the DWI offense
on June 19, 2000. He was sentenced that day, and the sentence included a two-year
term of probation. The time period of the federal drug conspiracy, as charged in the
indictment and to which Martinez-Cortez pleaded guilty, was from October 1, 2000
to October 3, 2001. The question then becomes whether the Guidelines permitted
the district court to disregard the fact of his actual sentence because, for the sole
purpose of obtaining favorable federal sentencing consequences, Martinez-Cortez had



                                          -3-
the probation period shortened after he served it and after he pleaded guilty to the
federal drug conspiracy.

       The Guidelines do permit courts to disregard some state court convictions and
sentences for the purposes of criminal history. Specifically, the Guidelines direct
courts not to count sentences for “expunged convictions.” U.S.S.G. § 4A1.2(j).
Nevertheless, courts must count sentences for convictions that, for reasons unrelated
to innocence or errors of law, are set aside or for which the defendant is pardoned.
Id. n. 10. Here, it is undisputed that Martinez-Cortez’s state convictions were not
expunged. Rather, his probationary terms were reduced after the probationary terms
were served merely to obtain favorable federal sentencing. If Martinez-Cortez’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. See United States v. Nicolace, 90 F.3d 255, 258 (8th Cir. 1996); United States
v. Dobovsky, 279 F.3d 5, 8-9 (1st Cir. 2002). We conclude 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. Thus, when Martinez-Cortez
committed the federal drug offense he remained under a sentence of probation for the
purposes of § 4A1.1(d) and the district court was required to assess two criminal
history points.

       For the same reasons, the district court was required to assess one criminal
history point for Martinez-Cortez’s conviction for leaving the scene of an accident
because he served one year of probation for the conviction and changed the
probationary term later only to obtain federal sentencing benefits. U.S.S.G. §
4A1.2(c)(1).




                                         -4-
      In sum, given the timing and purpose of Martinez-Cortez’s state sentence
reductions, we believe the Guidelines required the district court to conclude
Martinez-Lopez had four criminal history points and thus was ineligible for the safety
valve. Accordingly, we reverse and remand for imposition of the mandatory
minimum sentence.

LAY, Circuit Judge, dissenting.

       As the Government reveals, this case “presents a unique sentencing issue which
is apparently one of first impression at the appellate level.” The primary issue
concerns Defendant Jerardo Martinez-Cortez’s eligibility for safety valve relief under
the Guidelines. See 18 U.S.C. § 3553(f)(2); U.S. Sentencing Guidelines Manual
§ 5C1.2 (2002) [hereinafter U.S.S.G.]. Prior to his present offense, the Defendant
was convicted in state court for two misdemeanor driving offenses, to-wit: leaving
the scene of an accident and driving while intoxicated. For the former offense, the
Defendant served one day in jail and was placed on one year of probation, resulting
in one criminal history point under the Guidelines. See U.S.S.G. § 4A1.2(c). For the
latter offense, the Defendant served one day in jail and was placed on probation for
two years, resulting in one additional criminal history point. See U.S.S.G. § 4A1.2,
cmt. n.5. On the last day of probation, the Defendant committed the instant offense
and was therefore assessed two more criminal history points. See U.S.S.G.
§ 4A1.1(d).

       As the majority points out, the Defendant, after pleading guilty to the federal
offense, filed motions in the state court to modify his state sentences nunc pro tunc.
A state court judge reduced the Defendant’s term of probation for leaving the scene
of an accident from 365 to 364 days. Another state court judge reduced the term of
probation for the DWI offense such that it ended one day prior to his arrest in the
present case. The net result of these reductions was to alter the Defendant’s criminal



                                         -5-
history score, giving him one criminal history point under the Guidelines and thereby
making him eligible for the safety valve.

       At the time of sentencing for the federal offense, the district judge, the
Honorable Paul A. Magnuson, followed the recommendation of the Federal Probation
Office that the state court modifications should be given effect. Thus, the Defendant
qualified for relief under the safety valve and avoided the harsh mandatory minimum
ten-year sentence under the Guidelines. The majority holds, without authority, that
under the Guidelines the district court erred in refusing to look beyond the simple and
obvious fact that the Defendant’s sentences had been modified in a state court
proceeding. The majority reasons that as a matter of federal law, once the state
sentences were served, there was no valid basis for refusing to count them for
criminal history purposes. I must respectfully disagree.

       The majority opinion, in all due respect, 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. See generally Daniels v.
United States, 532 U.S. 374 (2001); Custis v. United States, 511 U.S. 485 (1994). 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. The majority also
slights the fact that in the state court proceedings where the modification of the
Defendant’s sentences took place, the state prosecutor was present and raised no
opposition whatsoever. More importantly, the Defendant appeared before two
distinguished state court judges who ordered the terms of probation modified. There



                                         -6-
was no appeal from these modifications. The state court proceedings thus carry with
them a presumption of regularity that the majority lightly casts aside.

        The majority finds that these modifications were not valid for several reasons.
First, the majority finds fault with Defendant’s counsel for not serving notice on the
federal prosecutor that he was going to seek modification of the state court sentence.
The record shows otherwise. Both the federal district judge and the United States
Attorney were notified that the Defendant would seek further relief from his state
sentences in state court. Furthermore, I seriously question whether a federal
prosecutor would have standing in the state court to contest a prior state conviction.
The majority also finds that the sentence modifications were made for the express
purpose of changing the Defendant’s criminal history score under the Guidelines.
Even taking this to be true, I respectfully submit that the reasons why the state judges
modified the state terms of probation are immaterial. See United States v. Guthrie,
931 F.2d 564, 572 (9th Cir. 1991) (“[T]he Guidelines are concerned only with the
state court’s final determination, not with the soundness of its reasoning.”).1

      To counter these concerns, the majority simply asserts that when the Defendant
“committed his federal drug offense, he remained on probation for the purposes of
§ 4A1.1(d) and the district court was required to assess two criminal points.” This
reasoning fails to give any effect or credit to the nunc pro tunc orders of the state
courts. In fact, the only basis upon which the majority reaches its decision is



      1
        Similarly, the Government’s brief states that if the sentence modifications had
some other basis such as proof of substantial assistance, the result would be different.
Thus, the Government argues that the reason for modification should make the
difference as to whether it can affect the federal sentence. But, as I have previously
noted, this overlooks that the federal court cannot second guess the state courts as to
the reason for modification but must only look at the result. Otherwise, Custis and
Daniels would have little meaning.
                                          -7-
Application Note 10 of § 4A1.2 of the Guidelines.2 Closer scrutiny reveals that this
is no support for such a weighty federal sentence. There is no question that the state
court’s modification of the probationary terms did not “expunge” his 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. The best
argument one might make is that Application Note 10 is ambiguous on the issue of
sentence modifications.3 Even if this be true, however, then the rule of lenity should
apply and the state court modifications should be upheld. See United States v.
Oetken, 241 F.3d 1057, 1060 (8th Cir. 2001) (“Where there are two plausible
readings of a [G]uideline provision, we apply the rule of lenity and give the defendant
the benefit of the reading that results in the shorter sentence.”).

       The majority also seems to place emphasis upon the fact that at the time the
Defendant moved to modify his state court sentences, they had already been fully
served. Thus, the majority argues that the state court cannot amend a sentence after
it has already been served. This argument is a total non sequitur and fails to
understand that a sentence already served can be attacked under available state post-

      2
          Application Note 10 provides:

      Convictions Set Aside or Defendant Pardoned. 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.
      3
       This argument was not raised before the federal district court at the time of
sentencing; but even if it had been, it would not alter the sentence of the district court.
                                           -8-
conviction proceedings to avoid collateral consequences. See Daniels, 532 U.S. at
382; Custis, 511 U.S. at 497. This is precisely what happened in the present case.
The state court modified the state court sentences nunc pro tunc, effectively meaning
that in the eyes of the state court, they were the sentences actually imposed for
conviction. It is clear that two respected state court judges, with the state prosecutor
present, amended the term of probation. Under such circumstances, Judge Magnuson
had no alternative other than to apply the safety valve.4

       The majority opinion fails to provide proper respect for and deference to the
state court’s modification of its own sentences. In my mind, the reasons offered by
the majority are conclusory and do not provide a reasoned basis upon which to
reverse the judgment of the federal district court. Judge Magnuson was correct and
the majority is wrong.
                       ______________________________




      4
       The Government concedes that the Defendant would meet all other grounds
to qualify for the safety valve:

      [T]he parties agree Mr. Martinez-Cortez did not use violence or the
      credible threat of violence, nor did he possess a firearm; the offense did
      not result in death or serious bodily injury to any person; he played only
      a minor role in the offense; and he provided the Government with
      truthful information about his participation in the offense. See
      Guidelines § 5C1.2(a)(1)-(5); 18 U.S.C. § 3553(f)(1)-(5); Government’s
      Sentencing Memorandum at 4.

Appellee’s Br. at 1 n.1.
                                          -9-
