Whenever there is a law that says a person who did a specific thing has to suffer a specific punishment, with no exceptions, there will be an application of that law that ordinary people think is unfair.
In New Jersey, two fourteen-year-olds now have to register as sex offenders for a relatively common locker room prank. A six-year old excited about joining cub scouts was suspended for school for forty days under a zero-tolerance policy because he brought a camping tool to school that included a butter knife.
In federal court, there are mandatory minimums in drug distribution cases. These mandatory minimums produce unfair results. People with minor involvement in cases can be required to serve massive sentences of ten or twenty years, and the judge who imposes that sentence has no lawful ability to go below that amount of time.
Basically, a person convicted of drug dealing qualifies for the safety value if they:
(1) didn't hurt anyone,
(2) didn't have gun,
(3) weren't in charge of the drug dealing,
(4) tell the government about their involvement in the drug dealing, and
(5) don't have much prior involvement with the criminal justice system.
The last requirement, that they not have much criminal history, is the subject of the Ninth Circuit's opinion in United States v. Yepez.
The requirement of minimal criminal history, stated more precisely, is a requirement that the person have no more than one criminal history point under the United States Sentencing Guidelines. Criminal history points are assessed as set out in section 4A1.1.
Basically, any conviction where the person serves no time, or less than sixty days in jail, gets one point. But, if the person is on probation during the crime that lands them in federal court, they will receive two additional points.
Mr. Yepez received a DUI conviction when he was 18. He was on probation for it when he drove some meth for someone else.*
Everyone agreed he met every requirement of being safety valve eligible, except he had three criminal history points. One for the original conviction, and two because he was on probation when he drove the drugs. As a result, instead of receiving a sentence of five years, the district court judge found that it had no choice but to sentence Yepez to ten years in a federal prison.
The Ninth Circuit, though, disagreed. Because Yepez's lawyer had gone back to state court and asked the state judge to retroactively end Yepez's probation the day before he committed the federal crime, the Ninth Circuit held that Yepez was not on probation when he committed the crime.
California law lets a judge change a prior order nunc pro tunc. The concept of a nunc pro tunc ruling is probably my favorite legal idea. Basically, it lets a judge time travel to a prior date and issue a ruling from that date that is in effect for all times in the future from that date.
So, as a matter of California law, the nun pro tunc change meant that Yepez wasn't on probation when he drove the meth. The Ninth Circuit held that meant he only had one criminal history point and, therefore, was safety valve eligible.
Senior District Judge Timlin, sitting by designation, dissented. Following the Eighth and Tenth Circuits, he would have said that the federal government doesn't care what a state court does nunc pro tunc. The feds, in essence, don't smile on that kind of time travel.
Professor Berman wonders if the government will seek cert from the Supreme Court on this question.
Personally, I hope not. These distinctions are undignified. A man will spend five years in prison, or not, depending on something as arbitrary as whether a state court judge has the power to change probation in the past.
If the act of deciding what sentence a person gets is a moral act, an act where we, as a society, show our judgments about how we think of justice and blameworthiness, then surely making such decisions turn on the technicalities of judicial time travel fails.
* According to the opinion, he thought it was marijuana. This is, of course, an odd defense. The district court, in any event, found it plausible, since the guy was only 20 years old.
If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.
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