Nunc Pro Tunc State Order Shortening Probation Did Not Negate Sentencing Increase

U.S. v. Pech-Aboytes, 2009 WL 1026484 (4/17/09) (Published) - A post-federal-plea nunc pro tunc state court order that shortened the defendant's probation so that it ended before he committed the federal offense did not preclude the application of the two level increase under § 4A1.1(d) for committing an offense while under a criminal justice sentence because the state court entered the order for reasons unrelated to the defendant's innocence or errors of law. As a result, the defendant did not qualify for the safety valve. He gets 10 years instead of 70 months. Sadly, at the time of the plea everyone thought the defendant would qualify for the safety valve. The first PSR said he did, but 6 weeks later an eager probation officer found the conviction.