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A defendant whose state criminal sentence was retroactively terminated is not eligible for safety valve sentencing relief.

The Court affirmed David Yepez’s federal drug sentence and vacated Audenago Acosta-Monte’s sentence, concluding that the defendants were ineligible for safety valve relief under 18 U.S.C. § 3553(f). Both defendants were arrested for carrying methamphetamine across the U.S-Mexico border, thus triggering a ten-year mandatory sentence. Before sentencing, they were ineligible for the “safety valve” provision under the Mandatory Minimum Sentencing Reform Act. The safety valve permits “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.” To trigger the safety valve, the defendant, inter alia, must “not have more than 1 criminal history point” under the sentencing guidelines. Both defendants were on state probation for minor crimes when arrested, which resulted in two criminal history points under U.S.S.G. § 4A1.1(d) because they committed a federal crime "while under any criminal justice sentence.” The day before sentencing by the district court, both defendants’ probations were terminated by a state court “nunc pro tunc.” The defendants argued that the nunc pro tunc orders made it so they were not on state probation when they committed the federal crimes, thus rendering them eligible for safety valve relief. Yepez received the mandatory sentence and Acosta-Montes received a sentence below the mandatory minimum. The Ninth Circuit determined that the plain language of § 4A1.1(d) “looks to a defendant’s status at the time he commits the federal crime.” In other words, “[t]hat 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.” Yepez’s sentence is AFFIRMED. Acosta-Montes’s sentence is VACATED.