Alba-Flores drives eight pounds of meth into San Ysidro and is caught. He's facing a ten-year mandatory minimum, but he strikes a deal with the government. Everyone agrees that he'll plead guilty and provide all the information he can about his offense and his confederates, and in return the government will recommend application of the safety valve so that Alba-Flores can potentially get below the ten years.
Everything goes as planned, except for one hitch. Alba-Flores had previously pled guilty to driving on a suspended or revoked license, which (of course) pales in comparison to his current offense. But when the parties discovered that he had been sentenced to three years of probation therefor, that meant that Alba-Flores had more than one criminal history point, which made him ineligible for the safety valve.
At which point Alba-Flores does a pretty bright thing. He goes up to Kern County, which is where he was convicted of the license offense, and asks the judge to reduce the charge to an infraction and dismiss terminate probation nunc pro tunc -- a request the court grants. Since his probation had now been terminated short of one year (his probation started on February 22, 2006 and the order was entered on February 13, 2007), Alba-Flores loses the criminal history point and qualifies for safety valve relief. Or at least so he argues.
But the Ninth Circuit, in a split opinion, disagrees. I won't belabor the extensive discussion of precedent in the various opinions, though it's interesting stuff. The majority opinion is authored by Judge Fernandez and joined by Judge Randy Smith. No huge surprise there. Let's see if you can figure out who authors the dissent. Since it's a very interesting piece of work in its own right, I'll help Name That Tune by giving a fairly expansive snippet thereof:
"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. . . . Alba-Flores served eleven months on probation for driving with a suspended license so, under Mejia, he didn’t serve a “term of probation 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 conflict 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 meaningless. . . .
The majority compounds the problem by relying on two out-of-circuit cases featuring defendants who actually served over a year of probation. . . . 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 retroactively call a fish a fowl, but what possible “gaming” can there be when the state court reduces a criminal defendant’s sentence prospectively so he actually serves less time? 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. The majority is wrong to cast aspersions
on this salutary practice. . . .
In addition to creating a conflict in the law of the circuit and injecting uncertainty into sentencing, the majority contravenes the general principles of modern sentencing jurisprudence: “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 individualized sentencing . . . .”  If a district court disagrees with the guidelines or feels that state courts are 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
So there you have it. A pretty involved statement of legal principles. Who's it from? The only hint I'll give is that it's an active member of the Ninth. You've got three guesses.
Here's the (slightly surprising, though not stunning) answer.