                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 08-50135
                Plaintiff-Appellee,           D.C. No.
               v.                         3:06-CR-01748-
EDUARDO ALBA-FLORES,                            BEN
             Defendant-Appellant.
                                             OPINION

       Appeal from the United States District Court
          for the Southern District of California
        Roger T. Benitez, District Judge, Presiding

                  Argued and Submitted
            July 7, 2009—Pasadena, California

                   Filed August 18, 2009

Before: Alex Kozinski, Chief Judge, Ferdinand F. Fernandez
           and N. Randy Smith, Circuit Judges.

              Opinion by Judge Fernandez;
             Dissent by Chief Judge Kozinski




                           11255
11258             UNITED STATES v. ALBA-FLORES




                            COUNSEL

Roseline D. Feral, San Diego, California; Vincent J. Brun-
kow, Federal Defenders of San Diego, Inc., San Diego, Cali-
fornia, for the defendant-appellant.

Joseph J.M. Orabona, U.S. Attorney’s Office, San Diego, Cal-
ifornia, for the plaintiff-appellee.


                            OPINION

FERNANDEZ, Circuit Judge:

   Eduardo Alba-Flores appeals his sentence for importation
of methamphetamine. See 21 U.S.C. §§ 952, 960. Specifi-
cally, he asserts that the district court erred when it deter-
mined that he had more than one criminal history point under
the United States Sentencing Guidelines because he was serv-
ing a term of probation at the time of his federal offense,
although probation was terminated before he was sentenced.
See USSG § 4A1.1(d).1 That precluded a grant of relief under




  1
  It appears that the district court applied the Sentencing Guidelines
Manual effective November 1, 2005, but Alba-Flores was sentenced on
                    UNITED STATES v. ALBA-FLORES                    11259
18 U.S.C. § 3553(f) and USSG § 5C1.2 (“safety valve
relief”). We affirm.

                          BACKGROUND

   Alba-Flores was arrested on July 4, 2006, as he drove an
automobile containing twenty packages of methamphetamine
into the United States at San Ysidro, California. The metham-
phetamine was hidden in a special compartment in the trunk
and appeared to weigh approximately 13 kilograms. Later
analysis revealed that the methamphetamine actually weighed
8.774 kilograms.

   On August 15, 2006, Alba-Flores waived indictment and
pled guilty before a magistrate judge to charges of importing
methamphetamine in violation of 21 U.S.C. §§ 952, 960. In
his plea agreement, and in the plea colloquy, Alba-Flores
acknowledged that there was a ten-year mandatory minimum
sentence for the offense. See 21 U.S.C. § 960(b)(1). However,
the agreement also contained a provision indicating that if
Alba-Flores disclosed all information and evidence regarding
his offense, and if he qualified for safety valve relief, the gov-
ernment would recommend the reduction of his offense level
by two points and recommend relief from the ten-year statu-
tory minimum sentence.

   Unfortunately, the Presentence Report (PSR) revealed that
Alba-Flores had pled guilty to driving with a suspended or
revoked license in violation of California Vehicle Code
§ 14601.1(a) on February 22, 2006, and had been sentenced
to a three-year term of probation. He was still subject to that

March 10, 2008, so the Sentencing Guidelines Manual effective Novem-
ber 1, 2007, should have been applied. As relevant here, USSG
§ 4A1.2(c)(1) in the 2005 manual had read “a term of probation of at least
one year,” but that was amended in the November 1, 2007, version of the
manual to read “a term of probation of more than one year.” The change
does not impact this case, but references to the Guidelines in this opinion
are to the November 1, 2007, version unless otherwise stated.
11260             UNITED STATES v. ALBA-FLORES
term of probation when he committed the instant offense.
Because the conviction and sentence gave Alba-Flores more
than one criminal history point, the PSR did not recommend
safety valve relief. Therefore, with a total offense level of
twenty-nine and a criminal history level of II, his correspond-
ing Guideline range was 97-121 months. Because the statu-
tory minimum sentence was 120 months, the PSR
recommended the ten-year mandatory minimum.

   On December 20, 2006, the district court adopted the mag-
istrate judge’s recommendation to accept Alba-Flores’ guilty
plea. Before the district court imposed any sentence, however,
Alba-Flores asked for new counsel, whom the district court
appointed. The court then continued the sentencing hearing.

   Before the next hearing, Alba-Flores’ attorney contacted
Kern County, California, Deputy Public Defender, Dana S.
Kinnison, who filed a “Motion to Reduce Charge and Termi-
nate Probation” in Kern County Superior Court, which was
directed at Alba-Flores’ misdemeanor conviction. The caption
indicated that the motion was being made pursuant to Califor-
nia Penal Code §§ 1203.3 and 19.8 and was filed because
Deputy Public Defender Kinnison “received a call from an
attorney in San Diego requesting that the court reduce the
misdemeanor charge to an infraction to facilitate a more
favorable disposition on a case pending in San Diego.” The
nature of the San Diego case was not explained. At a hearing
on the motion on February 13, 2007, the superior court
granted the motion, but called it a California Penal Code
§ 1203.4 motion, rather than a § 1203.3 motion. On the Order
Reducing the Charge and Terminating Probation Nunc Pro
Tunc, the court also hand wrote the note, “Dismissed as a PC
1203.4 GRW.”2 Similarly, the accompanying minute order
indicated that the court granted the motion to dismiss and
stated that the guilty plea is “set aside; a plea of not guilty is
ordered entered and the count is dismissed pursuant to Penal
  2
   The judge’s name is Gary R. Witt.
                 UNITED STATES v. ALBA-FLORES            11261
Code section 1203.4.” (All letters capitalized in order.) The
order had the effect of reducing Alba-Flores’ prior misdemea-
nor conviction to an infraction nunc pro tunc to the date he
had committed that violation and then dismissing it, which
ended Alba-Flores’ probation also. Moreover, because that
order was issued on February 13, 2007, Alba-Flores’ proba-
tion terminated nine days short of his having served one year
of it, which would have been February 22, 2007. Alba-Flores
admitted that the sole purpose of the order was to affect his
federal sentencing.

   Back in district court, Alba-Flores moved to compel spe-
cific performance of the plea agreement, or, alternatively, to
find him eligible for safety valve relief. He argued that the
superior court’s order reducing his misdemeanor conviction to
an infraction nunc pro tunc meant that it could not be counted
for criminal history purposes, so he should be eligible for
safety valve relief. The government argued that the nunc pro
tunc order did not expunge Alba-Flores’ prior conviction for
federal sentencing purposes, so it would still be countable
under the Guidelines. See United States v. Hayden, 255 F.3d
768, 771-73 (9th Cir. 2001) (holding that a conviction set
aside under § 1203.4 is not “expunged” and may be counted
for criminal history purposes).

   The district court held several hearings regarding sentenc-
ing and ultimately decided that Alba-Flores’ base offense
level under the Guidelines was thirty-four, but then reduced
it by five levels for his minor role in the offense and for his
acceptance of responsibility. It also accepted the govern-
ment’s argument that the proceedings in the superior court
after Alba-Flores had committed his federal offense did not
expunge his state conviction or otherwise permit the reduction
of his three criminal history points, one for the state convic-
tion itself3 and two for his reoffending while on the term of
  3
   See USSG § 4A1.1(c).
11262            UNITED STATES v. ALBA-FLORES
probation arising out of that conviction.4 This appeal fol-
lowed.

                 STANDARDS OF REVIEW

   We review de novo the district court’s interpretation of the
Sentencing Guidelines, but review for abuse of discretion the
district court’s application of the Guidelines to the facts, and
review factual findings for clear error. See United States v.
Ferryman, 444 F.3d 1183, 1185 (9th Cir. 2006). Our review
of the district court’s denial of safety valve relief is deferen-
tial, and we accept its factual findings unless we are “left with
a definite and firm conviction that a mistake has been made.”
Id. at 1186.

                          DISCUSSION

   In order to avoid his 120-month mandatory minimum sen-
tence, Alba-Flores has to demonstrate that he is entitled to
safety valve relief. That requires that he show by a preponder-
ance of the evidence that he meets all five conditions set forth
in 18 U.S.C. § 3553(f). See United States v. Ajugwo, 82 F.3d
925, 929 (9th Cir. 1996). Were he to do so, relief would be
mandatory. See United States v. Cardenas-Juarez, 469 F.3d
1331, 1335 (9th Cir. 2006). Here only one of those conditions
is in question, that is, has he shown that he “does not have
more than 1 criminal history point, as determined under the
sentencing guidelines.” 18 U.S.C. § 3553(f)(1).

   In order to answer that question, we must refer to the
arcane counting methodology set forth in Chapter 4 of the
Guidelines. Specifically, we must consider the relationship
between USSG § 4A1.1 and USSG § 4A1.2. The former sets
forth the number of points to be added to a defendant’s crimi-
nal history category, and the latter defines terms used in the
former.
  4
   See USSG § 4A1.1(d).
                    UNITED STATES v. ALBA-FLORES                      11263
   [1] Thus, under § 4A1.1(c), a defendant is given one crimi-
nal history point for each prior sentence countable under
§ 4A1.2, unless it is countable under § 4A1.1(a) or (b). See
USSG § 4A1.1, comment. (n.3). Furthermore, a defendant is
given two points under § 4A1.1(d) if he “committed the
instant offense while under any criminal justice sentence,
including probation, parole, supervised release, imprisonment,
work release, or escape status.” The commentary to that sec-
tion defines “criminal justice sentence” as a sentence “count-
able under § 4A1.2 . . . .” USSG § 4A1.1, comment. (n.4).5

   [2] The parties agree that, at least up to the time Alba-
Flores committed his federal offense, his conviction for driv-
ing when his driver’s license had been revoked or suspended
was within the relevant list. See USSG § 4A1.2(c). If that
were all, there can be no doubt that Alba-Flores had more
than one criminal history point.

   Ah, says Alba-Flores, but I returned to the state court after
I committed my federal offense and had my state sentence
changed. Therefore, he argues, no criminal history points
should be assigned to him because his state misdemeanor was
reduced to an infraction nunc pro tunc, his probation was ter-
minated before he had actually served one year, and because
if his state conviction could not be used at sentencing under
§ 4A1.1(c), it follows that his violation of probation arising
out of that offense could not be counted under § 4A1.1(d)
either. We disagree with his conclusion.

   [3] In effect, Alba-Flores’ first argument is that what used
to be his state conviction and sentence has now been
expunged. It is true that “[s]entences for expunged convic-
tions are not counted.” USSG § 4A1.2(j).6 However, not every
  5
     Interpretation of the phrase “criminal justice sentence” is a question of
federal law. See Mateo v. United States, 398 F.3d 126, 132 (1st Cir. 2005);
United States v. Martinez-Cortez, 354 F.3d 830, 832 (8th Cir. 2004).
   6
     Of course, sentences set aside because of errors of law, or discovery
of exonerating evidence, or for constitutional invalidity are not counted
either. See USSG § 4A1.2, comment. (n.6). Those exceptions do not apply
here.
11264             UNITED STATES v. ALBA-FLORES
set aside of a state sentence counts as an expungement. As the
Guidelines point out:

         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 associ-
      ated with a criminal conviction. Sentences resulting
      from such convictions are to be counted.

USSG § 4A1.2, comment. (n.10). That neatly covers Califor-
nia’s procedure under California Penal Code § 1203.4. We
made that plain when we pointed out that: “[t]o ‘expunge’ is
‘to erase or [to] destroy,’ and an ‘expungement of record’ is
‘[t]he removal of a conviction (esp. for a first offense) from
a person’s criminal record.’ The text of California Penal Code
section 1203.4 describes a more limited form of relief.” Hay-
den, 255 F.3d at 771 (citations omitted). We added that under
California law the convictions in question could still be used
at a later time in a variety of circumstances, both criminal and
civil. See id. at 771-72; see also United States v. Stoterau, 524
F.3d 988, 1000-01 (9th Cir. 2008). Thus, section 1203.4 relief
does not result in an expungement.

   [4] Alba-Flores argues that he was really proceeding under
other sections of California law, but as we see it, that is little
more than a quibble. California courts do have power to ter-
minate probation when circumstances warrant it,7 and to
declare certain offenses to be infractions when they deem that
appropriate.8 Alba-Flores points out that those sections were
referred to when he sought the order from the California
Superior Court. Still, the purpose and effect were the same
because it is obvious that a kind of removal of the conviction
from his record for no truly good legal reason other than
  7
   See Cal. Penal Code § 1203.3.
  8
   See Cal. Penal Code § 19.8.
                 UNITED STATES v. ALBA-FLORES             11265
affecting the instant sentencing was desired. The superior
court was not misled about that. While it did not have the
details, it perceived what was afoot. The judge immediately
said to counsel, who did not demur, that what was before him
was “a 1203.4 motion.” And both the minute order and the
formal order reflected that the case was dismissed under Cali-
fornia Penal Code § 1203.4.

   [5] Thus, Alba-Flores cannot rely on an expungement the-
ory to avoid the fact that he was convicted and sentenced for
a countable misdemeanor. That, then, leads to Alba-Flores’
similar, but different, argument regarding whether his state
sentence can be considered at all despite the failure to effec-
tively expunge it.

   Alba-Flores’ second argument is somewhat more banausic
than the first one. He points to the fact that under
§ 4A1.2(c)(1):

    Sentences for the following prior offenses [including
    driving with a revoked or suspended license] and
    offenses similar to them by whatever name they are
    known, are counted only if (A) the sentence was a
    term of probation of more than one year or a term of
    imprisonment of at least thirty days, or (B) the prior
    offense was similar to an instant offense . . . .

We have held that the language “the sentence was a term of
probation” in that Guideline means “a term of actual proba-
tion.” United States v. Mejia, 559 F.3d 1113, 1116 (9th Cir.
2009); see also United States v. Gonzales, 506 F.3d 940,
944-45 (9th Cir. 2007) (en banc) (holding that in that Guide-
line “term of imprisonment” means a term of “actual incarcer-
ation”).

   In Gonzales, 506 F.3d at 942, a state court had sentenced
the defendant to “thirty days in jail,” but had immediately sus-
pended that term. Thus, he was never incarcerated at all and
11266           UNITED STATES v. ALBA-FLORES
his misdemeanor sentence could not be counted. Similarly, in
Mejia, 559 F.3d at 1115-16, the defendant was placed on two
years summary probation but just three days later, and before
he committed his federal offense, his term of probation was
terminated. Thus, because he did not have a “term of actual
probation” of over one year, his underlying offense could not
be counted.

   In Mejia we emphasized the fact that “the suspension of
Mejia’s sentence before he was placed on a truncated term of
probation indicates that the offense of which he was convicted
was not regarded as serious.” Id. at 1116. The sentence here,
when given, was obviously seen as a serious one (three years
probation), but that does not necessarily avoid Mejia’s lan-
guage. We did not clearly limit ourselves to considerations of
seriousness at or about the time of the state sentencing, but
noted 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 § 4A1.2(c)(1)(A) for inclusion
in his criminal history.” Id. We continued: “Just as a ‘term of
imprisonment’ means ‘a term of actual confinement,’ Gon-
zales, 506 F.3d at 994, n.2, a term of probation means a term
of actual probation.” Id.

   The facts of this case are quite different from those in
Mejia because there the state court changed the original sen-
tence almost immediately and long before Mejia reoffended,
whereas here Alba-Flores was still serving his original state
sentence when he reoffended and, indeed, when he first
appeared for federal sentencing. Nevertheless, Mejia exerts a
strong, though not necessarily ineluctable, pull toward a con-
clusion that because it ultimately turned out that by the date
of his sentencing Alba-Flores had not and never would serve
over one year on probation, the district court should not have
added one point to his criminal history score on account of his
misdemeanor. Yet, we need not, and do not, decide that pre-
cise issue because, as we will show, it would make no differ-
                 UNITED STATES v. ALBA-FLORES              11267
ence to the ultimate conclusion that Alba-Flores has more
than one criminal history point.

   [6] Two cases from other courts of appeals point the way
to our conclusion, although they do not decide the precise
issue before us. Each of them eschewed the notion that a state
court could affect federal sentencing by issuing a nunc pro
tunc order after the concrete facts pertinent to the federal sen-
tencing were already in place.

   In the first one, the defendant had been sentenced to two
separate terms of probation for different offenses, each a year
or more in length, and had served over a year on probation
before the federal conspiracy for which he was prosecuted
ended. See Martinez-Cortez, 354 F.3d at 831-32. When faced
with the federal sentencing consequences of his actions, he
scuttled off to state court to get his probation terms reduced.
Id. at 831. In effect, said the court, what he sought to do was
expunge those state convictions for no other reason than to
avoid “federal sentencing consequences,” and that was after
he had served a lengthy probationary period already. Id. at
832. But, the “state convictions were not expunged” at all. Id.
The court continued:

    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. We conclude that, as a matter of
    federal law, Martinez-Cortez’s lesser step of modify-
    ing 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 crimi-
    nal history purposes. Thus, when Martinez-Cortez
    committed the federal drug offense he remained
    under a sentence of probation for the purposes of
11268             UNITED STATES v. ALBA-FLORES
       § 4A1.1(d) and the district court was required to
       assess two criminal history points.

Id. (citations omitted).

   The second of the cases is similar. There the defendant had
been sentenced for a state misdemeanor and received a proba-
tion sentence of thirty-six months. United States v. Pech-
Aboytes, 562 F.3d 1234, 1235-36 (10th Cir. 2009). He com-
mitted his federal offense while still serving that term, and, in
fact, was on it for over a year. Id. at 1236 n.2. He, too, when
faced with federal sentencing consequences, scurried off to
state court to have his term of probation reduced retroactively.
Id. at 1236. The court of appeals was not impressed. As it
noted, his state convictions were not actually expunged,9 or
for that matter reversed or otherwise held to be invalid.10 The
court then quoted the analysis from Martinez-Cortez, and
determined that the district court had properly assessed two
criminal history points against Pech-Aboytes because he had
reoffended while he was serving his term of state probation.
Id. at 1237-39; see also United States v. Caswell, 36 F.3d 29,
31 (7th Cir. 1994) (stating that a mere nunc pro tunc order is
not an expungement); cf. United States v. Sumner, 226 F.3d
1005, 1009-10 (9th Cir. 2000) (the purpose of nunc pro tunc
orders is to correct mistakes, not to alter substance).

   [7] The case at hand is not quite the same as those just
described because here Alba-Flores had not yet served a full
year of his state probation sentence as of the date of his fed-
eral offense, and later managed to induce the state court to set
that sentence aside before he did serve a full year. But as we
see it, even if the result of that state order is that he avoids the
single point for the state misdemeanor conviction itself, that
does not affect the concrete fact that he was “under [a] crimi-
  9
   See USSG § 4A1.2(j) & comment. (n.10).
  10
    See USSG § 4A1.2, comment. (n.6).
                    UNITED STATES v. ALBA-FLORES                     11269
nal justice sentence”11 when he committed his federal offense.
The later state court order could not change that concrete fact.
It is the actual situation at that precise point in time, not the
situation at some earlier or later point that controls. Nor in
Mejia did we intend to hold that when a person was actually
under a probation sentence of more than a year at the time he
committed his federal offense, he was not under a criminal
justice sentence if he had not yet completed over a year of that
state probation term. We were not then faced with that set of
facts and did not consider or speak to it. We did not contem-
plate a situation where an offender’s sentence would turn on
whether he had actually completed over a year of his actual
ongoing criminal justice sentence at the time he reoffended;
nor did we suggest that we should just wait to see if he would
do so. Now that we are faced with that situation, the proper
inquiry is whether Alba-Flores was actually under a “criminal
justice sentence” when he committed the offense at hand. He
was.

   [8] We note that the same odor of gaming the federal sen-
tencing system that was emanating in the Martinez-Cortez and
Pech-Aboytes cases emanates from this one. The existence of
that miasma would not itself be sufficient to lead us to a deci-
sion against Alba-Flores. Nevertheless, again, even consider-
ing a proper interpretation of our “term of actual probation”
stricture,12 Alba-Flores was actually “under [a] criminal jus-
tice sentence” when he offended because he was then serving
an actual term of probation whose length was for a period
exceeding one year — indeed, it was a sentence of three years
probation. Thus, by its plain language § 4A1.1(d) required the
addition of two points,13 and because that probation sentence
was not thereafter expunged14 or set aside on the basis of
  11
      USSG § 4A1.1(d).
  12
      Mejia, 559 F.3d at 1116.
   13
      See United States v. Brownstein, 79 F.3d 121, 123 (9th Cir. 1996) (set-
ting out plain language rule for construction of the Guidelines).
   14
      USSG § 4A1.2(j) & comment. (n.10); Hayden, 255 F.3d at 774.
11270            UNITED STATES v. ALBA-FLORES
innocence or legal error,15 it remained countable even after the
state court’s nunc pro tunc order. In short, Alba-Flores had
two criminal history points and was not eligible for safety
valve relief.

                        CONCLUSION

   At the time he committed his federal offense of importation
of methamphetamine, Alba-Flores was serving an actual sen-
tence of probation exceeding one year, which arose out of a
state misdemeanor conviction. That sentence was not
expunged by a state court within the meaning of USSG
§ 4A1.2(j) & comment. (n.10). Nor was it reversed or vacated
due to innocence or errors of law within the meaning of
USSG § 4A1.2, comment. (n.6). Therefore, he was properly
assigned two criminal history points pursuant to USSG
§ 4A1.1(d), and was not eligible for safety valve relief pursu-
ant to 18 U.S.C. § 3553(f).

  AFFIRMED.



KOZINSKI, Chief Judge, dissenting:

   Four months ago, in United States v. Mejia, 559 F.3d 1113
(9th Cir. 2009), we explained that the Guidelines calculate
criminal history based on probation actually served, rather
than the amount of probation originally pronounced. “Just as
a ‘term of imprisonment’ means ‘a term of actual confine-
ment,’ a term of probation means a term of actual probation.”
Mejia, 559 F.3d at 1116 (citing United States v. Gonzales,
506 F.3d 940 , 944 n.2 (9th Cir. 2007)). Alba-Flores served
eleven months on probation for driving with a suspended
license so, under Mejia, he didn’t serve a “term of probation
  15
    USSG § 4A1.2, comment. (n.6).
                UNITED STATES v. ALBA-FLORES             11271
of more than one year” and gets no criminal history points for
this offense. U.S.S.G. § 4A1.2(c)(1)(A).

   The majority refuses to follow Mejia, precipitating a con-
flict in the law of the circuit. My colleagues seek to justify
themselves by claiming that Mejia didn’t “intend to hold that
when a person was actually under a probation sentence of
more than a year at the time he committed his federal offense,
he was not under a criminal justice sentence if he had not yet
completed over a year of that state probation term.” Maj. Op.
at 11269. But neither of my colleagues was on the Mejia
panel, so they couldn’t possibly know what Mejia “intended”
beyond what its words say. And its words quite clearly say
nothing like what the majority holds. If we were all free to
ignore the language in opinions based on what we believe
they secretly intended, the law of the circuit would be mean-
ingless.

   The majority holds that for ongoing sentences the Guide-
lines count expected length, but for completed sentences the
Guidelines count actual length. This means that Alba-Flores’s
probationary term was more than one year when he commit-
ted his federal crime, but was under one year when he was
sentenced. Nothing in the Guidelines supports such a Janus-
faced interpretation of the same phrase; they refer simply to
a “term of probation of more than one year.” U.S.S.G.
§ 4A1.2(c)(1)(A). Nor does Mejia, which says only that “a
term of probation means a term of actual probation.” 559 F.3d
at 1116.

   The majority compounds the problem by relying on two
out-of-circuit cases featuring defendants who actually served
over a year of probation. According to the majority, these
cases “eschewed the notion that a state court could affect fed-
eral sentencing by issuing a nunc pro tunc order after the con-
crete facts pertinent to the federal sentencing were already in
place.” Maj. Op. at 11267. But these cases aren’t on point as
11272            UNITED STATES v. ALBA-FLORES
Alba-Flores served less than a year on probation and so did
not need to shorten his sentence retroactively.

   The majority nevertheless declares that the “same odor of
gaming the federal sentencing system” emanating from those
cases “emanates from this one.” Id. at 11269. Perhaps the out-
of-circuit cases have a point when state courts try to retroac-
tively call a fish a fowl, but what possible “gaming” can there
be when the state court reduces a criminal defendant’s sen-
tence prospectively so he actually serves less time? The fed-
eral system relies heavily on state courts in sentencing
defendants and it’s wrong and pernicious to call these judg-
ments 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. The majority is wrong to cast aspersions
on this salutary practice.

   The majority spends five pages discussing its sniff test,
only to explain that this “miasma” wouldn’t “itself be suffi-
cient to lead us to a decision against Alba-Flores,” leaving us
guessing about its importance in the majority’s analysis. Id.
Surely an issue that gets such a lengthy discussion in an opin-
ion must mean something. But we won’t know what it means
until a future panel guesses at what the majority here “intend-
ed.”

   In addition to creating a conflict in the law of the circuit
and injecting uncertainty into sentencing, the majority contra-
venes the general principles of modern sentencing jurispru-
dence: “One theme runs through the Supreme Court’s recent
sentencing decisions: [United States v.] Booker empowered
district courts, not appellate courts . . . . [and] breathe[d] life
into the authority of district court judges to engage in individ-
ualized sentencing . . . .” United States v. Whitehead, 532
F.3d 991, 993 (9th Cir. 2008) (internal quotation marks and
citations omitted) (alterations in original). If a district court
disagrees with the guidelines or feels that state courts are
                UNITED STATES v. ALBA-FLORES            11273
meddling, it has broad discretion to give an above-guidelines
sentence. The majority stands this principle on its head by
forcing district courts to give extremely harsh sentences
against their better judgment.

   Neither of the judges who actually sentenced Alba-Flores
—a first-time, unarmed, hapless drug deliveryman who’s only
prior was driving with a suspended license—thought he
deserves to spend ten years in federal prison. The state court
judge didn’t think so and terminated Alba-Flores’s probation
early to avoid the harsh effects a longer period would have on
his federal sentence. The federal judge agreed with the state
judge but (wrongly) felt handcuffed by the pre-Mejia law.
SER 210 (“[A]s I’ve said before, I’m not particularly keen
about the idea of imposing minimum mandatory sentences in
a case such as yours . . . but I think I’m bound to by law.”).
We shouldn’t be so eager to override the hands-on judgment
of two trial judges who have actually seen the defendant and
are far more familiar with his need for punishment than we
are.
