§190 Application to Indians, Assimilated Crimes, Juveniles, Misdemeanors
10th Circuit says Assimilative Crimes Act probation and fines are based on state, rather than federal law. (190)(560)(603) Defendant assaulted his wife in Veterans Administration housing and was convicted under the federal Assimilative Crimes Act (ACA), 18 U.S.C. §13, of committing the New Mexico offense of aggravated assault on a household member. Under the ACA, a federal court is to impose a punishment “like” that available under state law. Consistent with this ACA directive, the district court imposed the statutory maximum term of probation and maximum fine available under New Mexico law, rather than the greater terms of probation and fines available under federal law. The Tenth Circuit affirmed, holding that the district court did not err in using the state, rather than federal, law to determine the maximum term of probation and fines. Like imprisonment, both probation and fines are “punishments.” U.S. v. Chapman, 839 F.3d 1232 (10th Cir. 2016).
9th Circuit finds error in failure to appoint expert at juvenile’s resentencing. (190)(750) Defendant, a juvenile, participated in a murder on a Navajo reservation. After being tried as an adult, defendant was convicted and sentenced to life imprisonment. After defendant’s sentencing, the Supreme Court held in Miller v. Alabama, 132 S. Ct. 2455 (2012), that the Eighth Amendment barred the imposition on juveniles of mandatory life terms of imprisonment without the possibility of parole. At defendant’s resentencing, the district court declined to appoint a neuropsychological expert to help develop mitigating evidence because a neuropsychological evaluation would result in information cumulative of that presented at defendant’s initial sentencing ten years’ earlier. The Ninth Circuit held that the district court abused its discretion, finding that appointment of a neuropsychologist was necessary to mitigation of defendant’s sentence, and that defendant was prejudiced by the failure to appoint the expert. U.S. v. Pete, __ F.3d __ (9th Cir. April 11, 2016) No. 14-10370.
8th Circuit holds 600-month guideline sentence for juvenile was not cruel and unusual. (140)(190)(742) In 1998, defendant was convicted of various crimes, including murders, committed when he was 16 and 17. Under the then-mandatory Sentencing Guidelines, the district court sentenced defendant to life in prison. Thereafter, in Miller v. Alabama, 132 S.Ct. 2455 (2012), the Supreme Court held that the Eighth Amendment barred a mandatory term of life in prison without possibility of parole for juvenile offenders. The district court granted defendant’s petition for resentencing under 28 U.S.C. §2255. It then varied downward from the now-advisory guidelines range of life in prison, and imposed a sentence of 600 months. The Eighth Circuit affirmed, rejecting defendant’s argument that the 600-month sentence constituted cruel and unusual punishment. Miller did not hold that the Eighth Amendment categorically prohibited a sentence of life without parole for a juvenile offender. Rather, it only a barred a life sentence pursuant to mandatory penalty schemes because they prevented a judge or jury from taking into account “the distinctive attributes of youth.” U.S. v. Jefferson, __ F.3d __ (8th Cir. Mar. 14, 2016) No. 15-1309.
8th Circuit affirms 600-month sentence for juvenile crimes as not unreasonable. (140)(190)(742) In 1998, defendant was sentenced to life under the then-mandatory Sentencing Guidelines for crimes he committed as a juvenile. In light of Miller v. Alabama, 132 S.Ct. 2455 (2012), the district court granted defendant’s 28 U.S.C. §2255 petition, and resentenced him to 600 months. The Eighth Circuit affirmed, finding that the district court made an individualized sentencing decision that took account of “the distinctive attributes of youth,” explaining its sentence in a thorough, 24-page memo. The court found several factors that mitigated against a life sentence, all relating to defendant’s youth and his subsequent, “extraordinary” rehabilitation in prison. Against those factors, the court weighed the seriousness of defendant’s crimes and his refusal to accept responsibility. The court properly gave significant weight to the extreme severity of defendant’s crimes – causing “the horrific deaths of five young, innocent children” in a fire-bombing, attempting to murder another man, and distributing “vast amounts” of controlled substances. U.S. v. Jefferson, __ F.3d __ (8th Cir. Mar. 14, 2016) No. 15-1309.
Supreme Court says juveniles cannot be sentenced to mandatory life without parole. (190) Defendants were 14-year-old juveniles convicted of murder in state court and sentenced to a mandatory term of life without parole. In a 5-4 decision written by Justice Kagan, the Supreme Court held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for a juvenile. The Chief Justice, Justice Thomas, and Justice Alito all wrote dissents. Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455 (2012).
Supreme Court holds that juvenile cannot be sentenced to more than adult could receive under the guidelines. (190) The Juvenile Delinquency Act requires the length of official detention in certain circumstances to be limited to “the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.” 18 U.S.C. Section 5037(c)(1)(B). Although the sentencing guidelines do not apply to juveniles, the Supreme Court held, in a 7-2 opinion written by Justice Souter, that “this limitation refers to the maximum sentence that could be imposed if the juvenile were being sentenced after application of the United States Sentencing Guidelines.” Justices Scalia, Kennedy, and Thomas concurred separately, and Justices O’Connor and Blackmun dissented. U.S. v. R.L.C., 503 U.S. 291, 112 S.Ct. 1329 (1992).
Supreme Court grants certiorari to decide whether sentencing guidelines for adults limit sentence for juvenile delinquents. (190) The Federal Juvenile Delinquency Act, 18 U.S.C. 5037(c)(1)(B) limits a juvenile’s sentence to “the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.” The 8th Circuit held that this limited a juvenile’s sentence to the maximum provided under the federal sentencing guidelines for similarly situated adults rather than the maximum statutory penalty. The court held that although the guidelines do not apply to individuals sentenced as juveniles, it was proper to utilized the guidelines in this way. On June 24, 1991, the Supreme Court granted certiorari to review this ruling. U.S. v. R.L.C., 501 U.S. 1230, 111 S.Ct. 2850 (1991).
1st Circuit upholds maximum penalty for simple assault of flight attendant. (190) Defendant, a commercial airline passenger, provoked an altercation with the flight crew that resulted in the plane being forced to make an unscheduled landing so that defendant could be removed from the flight. Defendant was convicted of simple assault, a Class B misdemeanor not subject to the Sentencing Guidelines. The jury either acquitted him or failed to reach a verdict on other charges. An appellate court will uphold a sentence for a non-guidelines offense unless the sentence was “imposed in violation of law” or was “plainly unreasonable.” 18 U.S.C. §§ 3742(e)(1) & (4). The First Circuit held that the district court properly imposed a six-month sentence, the maximum allowable term of imprisonment. The district court’s consideration of hung-jury conduct was proper as a matter of law. See 18 U.S.C. § 3661 (providing no limit on the sentencing court’s ability to consider the defendant’s background, character, and conduct). The district court concluded that defendant’s unwillingness to accept responsibility for assaulting the flight attendant and the risk that his conduct posed on an airplane in mid-flight warranted the maximum allowable prison term. These considerations properly reflected the interests of punishment, deterrence, and public safety. U.S. v. Bayes, 210 F.3d 64 (1st Cir. 2000).
3rd Circuit rules that sentencing guidelines do not apply to offenses committed under the U.S. Virgin Islands criminal code. (190) The Third Circuit held that the guidelines do not apply to offenses under the Virgin Islands code because such offenses are not “offenses described in any federal statute.” Congress did not intend the guidelines to reach violations of criminal statutes enacted by the territorial legislatures because it failed to expressly provide that they would. The Third Circuit identified Fed. R. Evid. 1110(a) and Fed.R.Crim.P. 54(a) as two instances where Congress had explicitly made federal statutes applicable to territorial offenses. Government of Virgin Islands v. Dowling, 866 F.2d 610 (3rd Cir. 1989).
4th Circuit applies “plainly unreasonable” standard of review where no sufficiently analogous guideline. (190) Defendant was arrested on a U.S. army post for driving under the influence of alcohol. He pled guilty to drunk driving in violation of Virginia law, as assimilated into federal law by the Assimilative Crimes Act, 18 U.S.C. § 13. Because of the circumstances of the crime and defendant’s extensive history of alcohol abuse, the district court sentenced him to 27 months’ imprisonment. When an assimilated state offense resembles conduct for which a federal offense has been promulgated, the Sentencing Guidelines provides that “the most analogous offense guideline should be applied.” § 2X5.1. But where, as here, there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(a) control directly. The Fourth Circuit held that because there is no sufficiently analogous guideline, the provisions of 18 U.S.C. § 3742(a)(4) apply to impose a “”plainly unreasonable” standard of review for the sentence. Defendant’s 27-month sentence was not plainly unreasonable. The panel rejected defendant’s claim that the district court did not adequately consider the disparity between its sentence and Virginia’s sentencing guidelines. The district court considered the state guidelines, and then explained how sentencing under the state guidelines provided no deterrence to defendant. The court found that the previous six-month sentences imposed had not been sufficient, and the court needed to impose a sentence that would change defendant’s behavior and protect the public. U.S. v. Finley, 531 F.3d 288 (4th Cir. 2008).
4th Circuit rules bodily injury was element of South Carolina offense of failing to stop for police. (190) Defendant was charged under the Assimilative Crimes Act with failing to stop his car when signaled by a law enforcement vehicle, in violation of South Carolina law, while on a military base. He pled guilty and was sentenced to nine years in prison under a provision of the South Carolina law which applies where “great bodily injury resulted.” The Fourth Circuit reversed, ruling that whether “great bodily injury resulted” was an offense element that must be charged in the indictment, rather than a sentencing factor. No South Carolina court has yet ruled on whether bodily injury is an offense element or a sentencing factor in S.C. Code 56-5-750(C)(1). However, in Jones v. United States, 119 S.Ct. 1215 (1999), the Supreme Court analyzed whether serious bodily injury was an offense element or a sentencing factor in the federal carjacking statute. Under the three-step analysis in Jones, a court should first review the text of the statute, then look to extrinsic sources. If the first two steps leave the matter unclear, then the statute should be construed as requiring that serious bodily injury be charged as an offense element under the canon of constitutional avoidance. U.S. v. Davis, 184 F.3d 366 (4th Cir. 1999).
4th Circuit rules assimilated crime was more like aggravated assault than property damage. (190) Defendants shot at an occupied vehicle in a national forest, and were convicted under the Assimilative Crimes Act. The Fourth Circuit upheld the use of the aggravated assault guideline, § 2A2.2(a), rather than the property damage or destruction guidelines, § 2B1.3(a). The indictment described conduct much more serious than simple property damage. It charged that defendants acted with malice and that they actually imperiled the life of another person. Although aggravated assault did not perfectly describe defendants’ conduct, a perfect match was not required. U.S. v. Terry, 86 F.3d 353 (4th Cir. 1996).
4th Circuit holds that supervised release is like parole for ACA purposes. (190) Defendant was arrested for driving while impaired on a U.S. army base and was charged under the Assimilative Crimes Act with violating North Carolina law. He was originally sentenced to probation, but after committing several probation violations, a judge revoked his probation and sentenced him to 30 days imprisonment followed by a one-year term of supervised release. Defendant argued that the supervised release was unlawful because the punishment was not authorized by the assimilated North Carolina statute. The Fourth Circuit held that a term of supervised release is “like” parole for purposes of the ACA. Both occur following a term of imprisonment, involve government supervision, and serve to facilitate a prisoner’s transition into society. U.S. v. Pierce, 75 F.3d 173 (4th Cir. 1996).
4th Circuit holds that term of incarceration plus supervised release may exceed maximum state term of imprisonment. (190) Defendant was arrested for driving while impaired on a U.S. army base and was charged under the Assimilative Crimes Act with violating applicable North Carolina law. He was originally sentenced to probation, but after committing several probation violations, a judge revoked his probation and sentenced him to 30 days imprisonment followed by a one‑year term of supervised release. Defendant argued that the supervised release term was invalid because the total sentence exceeded the maximum term of imprisonment authorized by North Carolina law for the underlying offense. The Fourth Circuit held that the total sentence that may be imposed (the term of incarceration plus supervised release) is not limited to the maximum term of imprisonment permitted by state law. Under the federal guidelines, supervised release is not considered part of the incarceration portion of the sentence and therefore is not limited by the statutory maximum term of imprisonment. A federal court will not adopt provisions of state law that conflict with federal sentencing policy. U.S. v. Pierce, 75 F.3d 173 (4th Cir. 1996).
4th Circuit holds that state statute limits sentence under Assimilative Crimes Act. (190) Defendant was convicted of violating the Assimilative Crimes Act, 18 U.S.C. § 13, which assimilated a North Carolina drunk driving statute. The state statute provided for a maximum fine of $100 and for imprisonment to be suspended, on condition that defendant be imprisoned for a term of 24 hours as a condition of special probation. The district court imposed a seven day jail term, a $100 fine, a $25 assessment, 100 hours of community service, and one year’s probation. The 4th Circuit reversed. Under the Assimilative Crimes Act, the federal court must impose a “like punishment.” Since a state court cannot imprison a defendant for more than 24 hours unless the defendant later violates a condition of probation, the Act places the same restriction on a federal court. A federal court also cannot impose a fine in excess of $100. U.S. v. Harris, 27 F.3d 111 (4th Cir. 1994).
4th Circuit applies guidelines to Assimilative Crimes Act offense. (190) Defendant argued that the sentencing guidelines did not apply to crimes made federal offenses under the Assimilative Crimes Act because of the requirement that persons convicted under the Assimilative Crimes Act receive “like punishment” to what they would receive under state law. The 4th Circuit rejected the argument, ruling that the “like punishment” requirement simply mandates that federal sentences for assimilated crimes fall within the minimum and maximum terms established by state law. Within this range of discretion, federal judges should apply the sentencing guidelines to the extent possible. U.S. v. Young, 916 F.2d 147 (4th Cir. 1990).
4th Circuit applies guidelines to violations of District of Columbia Code. (190) Defendant assaulted a corrections officer while an inmate at Lorton Reformatory in Virginia. He was charged with several counts, including a violation of the District of Columbia Code. The 4th Circuit held that the sentencing guidelines applied to defendant’s crimes, including the violation of the D.C. Code. The District Court for the Eastern District of Virginia has original jurisdiction over crimes committed at Lorton Reformatory, which is located within that district, and this includes criminal charges for violations of the D.C. Code. U.S. v. Young, 916 F.2d 147 (4th Cir. 1990).
5th Circuit bars consecutive sentence under Assimilative Crimes Act where state mandates concurrent sentences. (190) Defendant was convicted of injuring or endangering her children on a federal enclave in violation of Texas law as incorporated by the Assimilative Crimes Act, 18 U.S.C. § 13. Texas law permitted only a ten-year concurrent sentence for her crimes, but the district court imposed a 32-year consecutive sentence. On appeal, the Fifth Circuit reversed, holding that “Texas’s choice to limit the length of all concurrent sentences deserves as much deference as does a choice to set the statutory maximum for an individual crime.” The court noted that in U.S. v. Davis, 845 F.2d 94, 95 (5th Cir. 1988), the court “capped” the federally mandated special assessment at the lower level permitted under Texas state law, and that federal courts of appeals unanimously agree that state sentencing ranges should set the minimum and maximum length for federal prison sentences under the Assimilative Crimes Act. Congress passed the Assimilative Crimes Act “to ensure that state laws, rather than federal laws, will determine the length of sentences when a conflict arises.” U.S. v. Martinez, 274 F.3d 897 (5th Cir. 2001).
5th Circuit suggests Apprendi requires jurisdictional elements to be proved beyond a reasonable doubt. (190) In a footnote, the Fifth Circuit noted that U.S. v. Bell, 993 F.2d 427 (5th Cir. 1993) held that a preponderance of the evidence standard applies to the jurisdictional elements in two statutes, the Assimilative Crimes Act, 18 U.S.C. § 13, and the federal aggravated sexual abuse statute, 18 U.S.C. § 2241(c). Both statutes, like the assault statute in the present case, 18 U.S.C. § 113(a), require that the offenses occur “within the special maritime and territorial jurisdiction of the United States.” The panel in this case questioned Bell’s holding, stating that it was doubtful, after Apprendi v. New Jersey, 530 U.S. 466 (2000), that a “mere preponderance of the evidence on this element could suffice to support a guilty verdict.” U.S. v. Perrien, 274 F.3d 936 (5th Cir. 2001).
5th Circuit holds that aggravated assault is most analogous to drunk driving offense. (190) Defendant pled guilty to intoxication assault in violation of Texas law, and the Assimilative Crimes Act. The district court found that USSG § 2A2.2(a), the aggravated assault guideline, was the most analogous guideline. Defendant, however, argued that the involuntary manslaughter guideline, § 2A1.4 was more analogous because it, like the Texas law, encompassed recklessly driving a vehicle while intoxicated. The Fifth Circuit found no error. Although the federal assault statute, 18 U.S.C. § 113, does not specifically address driving while intoxicated, it does contain a provision which closely matches intoxication assault. Section 113(a)(6) punishes “assault resulting in serious bodily injury.” A specific intent to do harm is not an element of a § 113(a)(6) offense. Thus, the voluntarily consumption of alcohol followed by the operation of a motor vehicle while in a state of voluntary intoxication can satisfy the mens rea element of a § 113(a)(6) violation. Although the involuntary manslaughter guideline does address the specific behavior of driving while intoxicated, it also contains an element not present in this case, the death of the victim. Although it was odd that the use of the aggravated assault guideline resulted in a higher sentence than the use of the involuntary manslaughter guideline, courts cannot second guess the sentences established in the guidelines. U.S. v. Calbat, 266 F.3d 358 (5th Cir. 2001).
6th Circuit upholds consecutive sentences for Class B misdemeanors. (190) Defendant pled guilty to four Class B misdemeanors stemming from a single drunk driving offense and received consecutive six month sentences. Application Note 2 to § 1B1.9 states that in determining whether to impose consecutive sentences a court should consider the relationship between the Class B misdemeanor and any other offenses for which defendant is being. Defendant’s arrest followed a long chase during which he ran over a police officer. He had eight prior drunk driving convictions, and the statute’s maximum sentence put defendant well below his sentencing range under the guidelines. Based on these factors, the 6th Circuit held the district court’s sentence was not an abuse of discretion. U.S. v. Gibson, 896 F.2d 206 (6th Cir. 1990).
6th Circuit holds that guidelines do not apply to 6-month misdemeanors, so consecutive sentences were proper. (190) The judge imposed four consecutive 6-month sentences for the four Class B misdemeanors of which defendant was convicted. Defendant argued that this violated U.S.S.G. 3D1 which limits consecutive sentences. The 6th Circuit rejected the argument, noting that under U.S.S.G. 1B1.9, the sentencing guidelines do not apply to Class B and C misdemeanors. Application Note 2 states explicitly that sentences for Class B and C misdemeanors may be imposed either consecutively or concurrently with sentences for other counts. U.S. v. Gibson, 896 F.2d 206 (6th Cir. 1990).
7th Circuit remands for court to limit revocation of driver’s license to federal territory. (190) Defendant pled guilty to operating a motor vehicle on federal land while intoxicated, in violation of Wisconsin law, as assimilated by 18 U.S.C. §13. The district court sentenced defendant to 18 months in prison, three years of supervised release, and ordered defendant’s driving privileges revoked for three years. The Assimilative Crimes Act provides that “[a]ny limitation on the right or privilege to operate a motor vehicle … shall apply only to the special maritime and territorial jurisdiction of the United States.” The government conceded that a total license revocation beyond federal territory was outside the district court’s power, and the district court order made no mention of being limited to federal enclaves. The Fifth Circuit vacated the sentence to the extent it revoked his driver’s license and remanded for the district court to correct the judge to reflect a license revocation that conformed to 18 U.S.C. §13(B)(1). U.S. v. Williams, 552 F.3d 592 (7th Cir. 2009).
7th Circuit rejects constitutional challenges to 10-year sentence for residential burglary. (190) Defendant committed a residential burglary on a federal enclave. The 7th Circuit rejected defendant’s claim that the 120-month sentence he received as a career offender violated due process or constituted cruel and unusual punishment. It was unclear how the sentence violated due process, other than simply being “unfair” because he would have received a lesser sentence under state law and the guidelines had he not been a career offender. Although the Assimilative Crimes Act states that punishment should be “like” that of the state, the federal government does not have to adopt the same provisions for computing when a sentence is satisfied. Defendant was sentenced within the state guidelines (four to 15 years), which is all the Assimilative Crimes Act requires. The 120-month sentence was not so “grossly disproportionate” to defendant’s crimes as to constitute cruel and unusual punishment. U.S. v. Coleman, 24 F.3d 37 (9th Cir. 1994).
8th Circuit says court not required to consider Chapter 7 policy statements in sentencing juvenile. (190) After defendant, a juvenile, violated the conditions of her probation, the district court sentenced her to imprisonment until age 21, a sentence of about 19 months. Defendant argued that the court should have considered the policy statements in Chapter 7 of the guidelines. Although the guidelines do not apply to juveniles, a juvenile cannot receive a sentence of imprisonment longer than the sentence which a court could impose on a similarly situated adult. 18 U.S.C. § 5037(c). The Eighth Circuit found no error. A court need only consider the guidelines to determine the upper limit of the sentence which can be imposed on a juvenile. The statute does not require “plenary application of the Guidelines to juvenile delinquents.” U.S. v. R.L.C., 503 U.S. 291 (1992). Moreover, the Chapter 7 policy statements are not mandatory, so that even if the court had considered the guidelines, Chapter 7 was not binding upon the court. There was no reason to suppose that the court would have imposed a shorter sentence if it had considered the policy statements. U.S. v. A.J., 190 F.3d 873 (8th Cir. 1999).
8th Circuit finds supervised release is like South Dakota probation for Assimilative Crimes Act purposes. (190) Defendant was charged under the Assimilative Crimes Act with attempted indecent exposure on an Indian reservation. Applicable South Dakota law provided for a one-year maximum term of incarceration. The district court imposed a maximum one year term of imprisonment plus a one-year term of supervised release. Defendant argued that the imposition of supervised release violated the “like punishment” provision of the ACA. The Eighth Circuit held that because probation, under South Dakota law, can follow a term of incarceration, involves government supervision, and serves society’s goal of rehabilitation, the sentence of imprisonment plus supervised release was like a punishment defendant could have faced in a state court. Although the term of incarceration imposed upon a defendant convicted under the ACA may not exceed that provided by state substantive law, the total sentence imposed—including supervised release—may exceed the maximum term of incarceration provided by state law. This is true even where, as here, the defendant was not eligible for any parole or probation because he was sentenced to the maximum term of imprisonment. U.S. v. Engelhorn, 122 F.3d 508 (8th Cir. 1997).
8th Circuit follows procedures for adult defendants when departing upward for juveniles. (190) Defendant, a juvenile, stole firearms from a licensed dealer and failed to appear for his sentencing hearing. At sentencing, the district court used the guideline range for an adult defendant. It then made a criminal history departure after generally referring to defendant’s “most extensive criminal history.” In U.S. v. RLC, 503 U.S. 291 (1992), the Supreme Court held that 18 U.S.C. § 5037(c)(1)(B) requires a sentencing court in a juvenile case to use the guideline range for an adult who committed the relevant offenses. The Eighth Circuit held that in departing upward for a juvenile, a court must follow the procedures outlined in U.S. v. Day, 998 F.2d 622 (8th Cir. 1993) to determine the maximum sentence that a comparable adult would have received. This fixes the upper limit of the juvenile’s sentence. Unless such procedures are followed, a juvenile’s maximum possible sentence would not be the same as that of a similarly-situated adult, a result the statute was enacted to avoid. U.S. v. Juvenile PWM, 121 F.3d 382 (8th Cir. 1997).
8th Circuit holds that sentencing guidelines apply to Indian offenses. (190) Reversing the decision in U.S. v. Norquay, 708 F.Supp. 1064 (D. Minn. 1989), the 8th Circuit held that the federal sentencing guidelines apply to convictions under the Indian Major Crimes Act, 18 U.S.C. § 1153. The Major Crimes Act makes burglary committed by an Indian within “Indian country” a federal crime. Because there exists no federal statute describing what conduct constitutes the crime of burglary, the Major Crimes Act incorporates the law of the state in which the burglary was committed for purposes of defining the crime and establishing the punishment. The district court held that this meant that Minnesota’s sentencing guidelines should govern the defendant’s sentence. The 8th Circuit disagreed, holding that the federal sentencing guidelines applied, but that the sentence could not exceed any maximum sentence under Minnesota law. U.S. v. Norquay, 905 F.2d 1157 (8th Cir. 1990).
8th Circuit holds that federal law on “good time” credits and concurrent sentencing applies to Indian offenses. (190) The incorporation of state law in the Indian Major Crimes Act does not mean that federal courts must follow “every last nuance of the sentence that would be imposed in state court.” Thus the 8th Circuit held that since the prisoner was a federal prisoner, the conditions of his confinement and release on parole should be controlled by federal correctional policies. To hold otherwise would be to have two classes of prisoners serving in the federal prisons: Assimilative Crimes Act prisoners and all other federal prisoners. The court found that this would be disruptive, and was not required under federal law. U.S. v. Norquay, 905 F.2d 1157 (8th Cir. 1990).
9th Circuit upholds life in prison without parole for juvenile. (190) Defendant was convicted in state court of murdering her mother when defendant was 17 years old. Relying on a state statute that gives courts discretion over how to sentence juveniles, the trial court sentenced defendant to life without possibility of parole. The Ninth Circuit held that because the trial court had discretion and could take into account mitigating factors, its sentence did not violate the Eighth Amendment bar on cruel and unusual punishments. Bell v. Uribe, 729 F.3d 1052 (9th Cir. 2013), superseded Bell v. Uribe __ F.3d __ (9th Cir. 2014).
9th Circuit upholds 18-month sentence imposed on juvenile. (190) The district court found defendant to be a juvenile delinquent based on his aiding and abetting an aggravated sexual assault. The court sentenced defendant to spend 18 months in detention, followed by 12 months in juvenile delinquent supervision. The Ninth Circuit held that the district court had adequately considered the totality of defendant’s circumstances and had not placed defendant in an overly restrictive environment for an undue period of time. U.S. v. H.B., 695 F.3d 931 (9th Cir. 2012).
9th Circuit requires juvenile to register as sex offender under SORNA. (190) Juveniles pleaded “true” to committing aggravated sexual abuse with children. As a condition of probation or supervised release, the juveniles were ordered to register as sex offenders under the federal Sex Offender Registration and Notification Act. The Ninth Circuit held that the SORNA registration requirement did not impermissibly conflict with the confidentiality requirement of the Federal Juvenile Delinquency Act. The court also rejected challenges to the registration requirement under the Equal Protection Clause, the Eighth Amendment prohibition on cruel and unusual punishment, the Self-Incrimination Clause, and the Due Process Clause. U.S. v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012).
9th Circuit says federal court in California may not impose work release for ACA violation. (190) Defendant was convicted under the Assimilative Crimes Act of driving without a license, in violation of California law. A provision of the California Penal Code authorizes a county board of supervisors to create a voluntary program under which a person committed to a county correctional facility may serve his sentence by participating in a work release program. Defendant argued that under this provision, the federal magistrate judge who presided over his case could sentence him to work release in lieu of jail. The Ninth Circuit held that because California state judges do not have discretion to impose work release, the magistrate judge who sentenced defendant could not impose that sentence under the ACA. U.S. v. Benz, 472 F.3d 657 (9th Cir. 2006).
9th Circuit says sentencing juvenile under adult sentencing scheme was plain error. (190) The district court adjudged defendant a juvenile delinquent under the Federal Juvenile Delinquency Act (FJDA) and sentenced him to a term of probation extending to his twenty-first birthday. When defendant violated the terms of his probation, the court revoked his probation and resentenced him “pursuant to the Sentencing Reform Act of 1984” to a term of detention lasting until his twenty-first birthday. The Ninth Circuit held that the FJDA governed sentencing when a court revoked the probation of a juvenile and that the district court committed plain error by sentencing defendant under the adult sentencing scheme in the Sentencing Reform Act, rather than the FJDA provisions applicable to juveniles. U.S. v. Juvenile Male, 470 F.3d 939 (9th Cir. 2006).
9th Circuit holds that juveniles must receive credit for time spent in pretrial detention. (190) Under 18 U.S.C. §3585(b), a defendant must be given credit on his sentence for time spent in pretrial detention for the offense of conviction. The Bureau of Prisons does not interpret this statute to apply to juveniles sentenced under the Federal Juvenile Delinquency Act and therefore does not give juveniles credit on their sentences for time spent in detention prior to sentencing. The Ninth Circuit held that juveniles must receive credit for time spent in detention prior to the imposition of sentence. Jonah R. v. Carmona, 446 F.3d 1000 (9th Cir. 2006).
9th Circuit says sentences for juvenile depend on juvenile’s age at sentencing, not on date of offense. (190) The federal Juvenile Delinquency Act, 18 U.S.C. § 5037, determines the maximum offense for a juvenile based on the juvenile’s age. A juvenile under 18 may only be incarcerated until his twenty-first birthday; the sentence for a juvenile over 18 is determined based on the sentence that would be available if he had been convicted as an adult. The statute does not specify, however, whether the age to be used is the juvenile’s age on the date of the offense, the date the information is filed, or the date of sentencing. The Ninth Circuit held that juvenile’s age at the time of sentencing determines the applicable sentence. The court rejected defendant’s argument that using the date of his sentencing would violate the Ex Post Facto Clause because it would allow the government to determine his sentence by delaying the filing of an information until it became clear that defendant be 18 at the time of sentencing. U.S. v. Leon would H., 365 F.3d 750 (9th Cir. 2004).
9th Circuit says juveniles must be sentenced to least-restrictive environment consistent with rehabilitation. (190) Under the Federal Juvenile Delinquency Act, 18 U.S.C. § 5037, a court may sentence a juvenile to “official detention,” which is defined as the lesser of the period until the juvenile is 21 or the maximum that could be imposed under the Sentencing Guidelines. The Ninth Circuit held that in sentencing a juvenile to official detention under the FJDA, a court must sentence a defendant to the least-restrictive environment that will support the juvenile’s continued rehabilitation. U.S. v. Juvenile, 347 F.3d 778 (9th Cir. 2003).
9th Circuit reverses sentence of juvenile ordered detained until age 21. (190) Defendant, a 14-year-old juvenile, pleaded guilty to aggravated sexual assault pursuant to a plea agreement that recommended that he be committed to the custody of the Attorney General until he was 18. The district court rejected this recommendation and sentenced defendant to be detained until he was 21 based on the seriousness of defendant’s offense, his history of prior, similar offenses, and his failure to make progress in treatment. The Ninth Circuit held that the district court had abused its discretion because only 18 months of the sentence were to be served in a treatment program for juvenile sexual offenders and thus, the remainder of the sentence served the improper purposes of punishment or incapacitation. In addition, the district court failed to consider whether the sentence was the least-restrictive means of achieving defendant’s rehabilitation and defendant’s past history of being victimized sexually. U.S. v. Juvenile, 347 F.3d 778 (9th Cir. 2003).
9th Circuit holds guidelines apply to State offenses incorporated through the Major Crimes Act. (190) The Major Crimes Act, 18 U.S.C. § 1153, provides that certain major offenses, including burglary, committed by Indians in Indian country should be defined and punished according to the law of the State in which the offense occurs. A provision of the Sentencing Reform Act, 18 U.S.C. § 3551(a), requires application of the Sentencing Guidelines to offenses under the Major Crimes Act. The Ninth Circuit held that although State law determines the minimum and maximum penalty for an offense incorporated into federal law through the Major Crimes Act, the Sentencing Guidelines should be used to calculate the sentencing range within the statutory limits. The court also held that § 3551(a) was sufficiently clear to put defendants convicted under the Major Crimes Act on notice that the guidelines would apply to their offenses. U.S. v. Male Juvenile (Pierre Y.), 280 F.3d 1008 (9th Cir. 2002).
9th Circuit says judge understood he had discretion to sentence juvenile to probation. (190) The juvenile argued that the district judge did not recognize his discretion to impose probation under 18 U.S.C. § 5037. He relied on the district court’s statement that “because of the viciousness of that crime, probation is simply not an option.” The Ninth Circuit held that an explicit statement is not necessary to conclude that the district court recognized its discretion. Here, the judge discussed options with both counsel and with the juvenile’s mother. He asked the government if probation was an option, and the government conceded that it was. The judge’s remarks and conduct in the sentencing hearing were sufficient evidence that he considered and rejected probation as an adequate sentence in this case. The four year custodial sentence was affirmed. U.S. v. Doe, 149 F.3d 945 (9th Cir. 1998).
9th Circuit permits supervised release under Assimilative Crimes Act beyond state maximum. (190) The Ninth Circuit joined all other circuits in holding that when a defendant is convicted under the Assimilative Crimes Act, 18 U.S.C. § 13, the total sentence (comprised of a term of incarceration and a period of supervised release) may exceed the term of imprisonment allowed under the assimilated state law, in order to further the federal policy of supervised release. In the present case, defendant was convicted under the Assimilative Crimes Act of forgery and negotiating a worthless instrument in violation of Hawaii state law. She was sentenced to four months imprisonment and one year of supervised release on each count concurrently. This exceeded the maximum sentence allowed under Hawaii law (one year, or probation up to one year), but it was proper under the Federal Assimilative Crimes Act. U.S. v. Rapal, 146 F.3d 661 (9th Cir. 1998).
9th Circuit says guideline range for juvenile is the same as for an adult. (190) The maximum term of imprisonment to which a juvenile may be sentenced is the lesser of the date when the juvenile turns 21 and the maximum term of imprisonment which would be authorized if the juvenile had been tried and convicted as an adult. 18 U.S.C. § 5037(c)(1). The Supreme Court has held that the latter is calculated by reference to the Sentencing Guidelines, so that a court sentencing a juvenile must “determine an appropriate guideline range in juvenile delinquency proceedings.” U.S. v. R.L.C., 503 U.S. 291, 306 (1992). In this case, the district court departed upward by sentencing defendant to detention until his 21st birthday. Because this was a departure from the guidelines applicable to adults, the Ninth Circuit reversed. U.S. v. G.L., 143 F.3d 1249 (9th Cir. 1998).
9th Circuit “assimilates” Washington’s “deferred prosecution” for drunk driving on federal enclave. (190) Defendant was convicted of driving under the influence of alcohol on a federal enclave. He moved for “deferred prosecution”, a rehabilitation program available under Washington law which resembles pre-conviction probation. The federal magistrate denied the motion on the ground that the program was not “punishment” and thus not assimilated into federal law through the Assimilative Crimes Act, 18 U.S.C. § 13. On appeal, the Ninth Circuit reversed, holding that Washington’s deferred prosecution program is a form of “punishment” within the meaning of the Act. The Washington Supreme Court had determined that deferred prosecution was a “form of sentencing.” Thus, this case was only slightly different from U.S. v. Bosser, 866 F.2d 315 (9th Cir. 1989), which held that Hawaii’s deferred acceptance program was “punishment” incorporated into federal law under the Assimilative Crimes Act. U.S. v. Sylve, 135 F.3d 680 (9th Cir. 1998).
9th Circuit says state mandatory minimum sentence trumps the guidelines under ACA. (190) Defendant was convicted under the Assimilated Crimes Act, 18 U.S.C. § 13, of first degree burglary and unauthorized control of an automobile, in violation of Hawaii law. The district court sentenced him to a mandatory minimum sentence of 40 months as required by the Hawaii Repeat Offender Statute, even though he would have received a lower sentence under the federal sentencing guidelines. On appeal, the Ninth Circuit affirmed, holding that under guideline § 5G1.1(b) the statutory mandatory minimum sentence becomes the guideline sentence. Because the state sentencing law is “assimilated” into federal law under the Assimilated Crimes Act, the defendant must receive a “like punishment” to what he would receive in state court. U.S. v. Kaneakua, 105 F.3d 463 (9th Cir. 1997).
9th Circuit holds juvenile delinquent may not be sentenced to supervised release. (190) The Juvenile Delinquency Act, 18 U.S.C. §5037(a) offers four sentencing alternatives for adjudicated juvenile delinquents: (1) a suspended finding of delinquency; (2) restitution; (3) probation; or (4) official detention. Nothing in the act authorizes supervised release as a sentencing option. Accordingly, it was error for the district court to place the juvenile in this case on supervised release, and to revoke the supervised release and sentence him to a four year prison term. The order was vacated and the case remanded to correct defendant’s sentence. U.S. v. Doe, 53 F.3d 1081 (9th Cir. 1995).
9th Circuit orders supervised release in Assimilative Crimes Act case. (190) The Assimilative Crimes Act, 18 U.S.C. § 13, requires a defendant to receive convicted of a state crime on a federal enclave to receive a “like punishment” to what he would have received if he had been convicted in state court. Defendant was convicted of driving under the influence on a Hawaii military reservation. The magistrate sentenced him to four months in custody followed by six months supervised release. The district court vacated the supervised release, on the ground that supervised release was not an available sentence in state court. On appeal, the Ninth Circuit reversed, holding that probation is available in state court, and supervised release and probation have similar goals, thus constituting “like punishment” under the Assimilative Crimes Act. U.S. v. Reyes, 48 F.3d 435 (9th Cir. 1995).
9th Circuit holds that court may consider prior uncounseled misdemeanor convictions in sentencing within the range. (190) In Baldasar v. Illinois, 446 U.S. 222 (1980) the Supreme Court held that uncounseled misdemeanor convictions may not be used to enhance the sentence of a later conviction. And in U.S. v. Brady, 928 F.2d 844, 853-54 (9th Cir. 1991), the 9th Circuit held that uncounseled tribal misdemeanor convictions are not grounds for an upward departure. In this case however, the magistrate “did not use the prior convictions to enhance the sentence; he merely considered all relevant factors, including both defendants’ prior history before sentencing each to a jail term well within the penalty range” under the Assimilative Crimes Act. The sentence was affirmed. U.S. v. Hookano, 957 F.2d. 714 (9th Cir. 1992).
9th Circuit holds that guidelines apply to Assimilative Crimes Act offenses. (190) The Assimilative Crimes Act, 18 U.S.C. § 13, makes state crimes on federal enclaves into federal offenses subject to “like punishment” as that in state court. Agreeing with a recent 10th Circuit ruling, the 9th Circuit held that the federal sentencing guidelines apply to Assimilative Crimes Act offenses. Defendant was sentenced to three consecutive one-year terms for passing forged checks. She argued that the sentence was excessive because, under state law, while she could have received the same sentence, she would have been eligible for parole in 18 months. The court rejected this argument, holding that the Assimilative Crimes Act does not incorporate state parole policies. The court distinguished parole rights from systems permitting reduced sentences through deferred acceptance of guilty pleas. U.S. v. Leake, 908 F.2d 550 (9th Cir. 1990).
10th Circuit agrees that suspended sentence unavailable under guidelines could not be applied to assimilated crime. (190) Defendant, a native American, pled guilty to second degree burglary in Indian Country, in violation of Indian Major Crimes Act (IMCA). Federal law assimilates the crime’s definition and punishment under state law because burglary is a crime not defined and punished by federal law. 18 U.S.C. § 1153(b). In Oklahoma, where the offense was committed, second degree burglary is punishable by two to seven years imprisonment. Defendant’s guideline range was 0-6 months. Defendant argued that the district court had discretion to suspend her sentence and impose a period of probation pursuant to Oklahoma state law. The district court ruled it lacked discretion to suspend defendant’s sentence because federal law assimilated only the range of punishment between the minimum and maximum sentences set forth in the Oklahoma second-degree burglary statute. Because the guideline range fell below the minimum sentence, the district court sentenced defendant to two years. See U.S.S.G. § 5G1.1(b). The Tenth Circuit affirmed. When sentencing defendants for assimilated crimes, federal courts have consistently declined to assimilate state sentencing laws if such laws conflict with the guidelines and their underlying policies. Because the guidelines deny a district court the discretion to suspend a sentence of imprisonment, that option is unavailable to defendants convicted of violating the IMCA and sentenced in accordance with the guidelines. U.S. v. Wood, 386 F.3d 961 (10th Cir. 2004).
10th Circuit holds that guidelines do not apply to Class B misdemeanors. (190) Defendant pled guilty under the Assimilative Crimes Act to driving under the influence, in violation of Kansas state law, a Class B misdemeanor. The magistrate judge sentenced him to probation. Defendant violated the probation several times. After the second violation, the judge extended the probation and imposed a six-month term of home detention with electronic monitoring. When defendant violated probation a third time, he was sentenced to 90 days in custody. Defendant argued that because he had completed six months in home detention, and the federal sentencing guidelines credit home detention as incarceration, that he had already served the six-month statutory maximum sentence permitted under Kansas law. The Tenth Circuit held that the guidelines were not applicable, since § 1B1.9 provides that the guidelines do not apply to any conviction that is a Class B or C misdemeanor. It is proper for a federal court to refer to state law in circumstances like this. Kansas law clearly provides that a period of home detention is not the same as a term of imprisonment. Therefore, the magistrate judge acted properly under Kansas law. U.S. v. Thomas, 68 F.3d 392 (10th Cir. 1995).
10th Circuit applies guidelines to conspiracy which straddled defendant’s 18th birthday. (190) Defendant participated in a drug conspiracy from March 1989 through his arrest on July 9, 1989. His 18th birthday was on June 19, 1989. The 10th Circuit upheld the application of the guidelines to his offense, despite his claim that most of his criminal conduct took place while he was a juvenile. It was defendant’s criminal conduct after he became an adult to which section 2D1.1(a)(3) applied. Moreover, the fact that defendant was barely 18 when he committed the illegal acts did not support an argument that the guidelines were misapplied. Section 5H1.1 states that age, including youth, is not ordinarily relevant in determining whether a departure is justified. The guidelines’ failure to consider a defendant’s age does not violate due process. U.S. v. Leroy, 984 F.2d 1095 (10th Cir. 1993).
10th Circuit holds that sentencing guidelines apply to Assimilative Crimes Act offenses. (190) The Assimilative Crimes Act, 18 U.S.C. § 13, provides that anyone on a federal reservation who commits an act that would be punishable if committed within the jurisdiction of the state in which the federal reservation is located “shall be guilty of a like offense and subject to a like punishment.” The defendant, an American Indian, pled guilty to manslaughter in violation of New Mexico law, as assimilated by the Assimilative Crimes Act. He argued that the Federal Sentencing and Forfeiture Guidelines did not apply to him because the Act required that he receive a “like punishment” to what he would have received if convicted in state court. The 10th Circuit rejected the argument, holding that since there were no restrictions on state judges, the federal guidelines should apply as long as the sentence fell within the maximum range provided by state law. U.S. v. Garcia, 889 F.2d 1454 (5th Cir. 1989).
11th Circuit says new limit on life sentences for juveniles is not retroactive. (190) Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), defendant filed an application for leave to file a second or successive motion to vacate, set aside, or correct his federal sentence. One ground for such authorization is a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court. Defendant was a juvenile when he committed the acts leading to his conviction, and received a life sentence under the then-mandatory Sentencing Guidelines. Defendant argued that Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455 (2012), established that imposing a life sentence without possibility of parole in his situation was unconstitutional, and constituted a new, previously unavailable rule of constitutional law that was retroactive to cases on collateral review. The Eleventh Circuit disagreed, holding that Miller’s new constitutional limitation on life sentences for juvenile offenders was not made retroactive by the Supreme Court. In re Morgan, 713 F.3d 1365 (11th Cir. 2013).
11th Circuit says ACA defendant who served state statutory maximum can be given more time for violating supervised release. (190) Defendant pled guilty to felony DUI at a Florida naval station. He was convicted under the Assimilative Crimes Act (ACA) and sentenced to five years’ imprisonment, the maximum provided under state law for the offense, and three years of supervised release. After he violated his supervised release, the district court revoked the supervised release and imposed an additional 24 months’ imprisonment. Defendant argued that the court did not have authority under the ACA to sentence him to any additional prison time. The Eleventh Circuit disagreed, holding that an ACA defendant who has already served the state statutory maximum term of incarceration may be sentenced to further imprisonment upon revocation of his supervised release. Previous cases have concluded that court have this authority in non-ACA cases. The rationale underlying these cases applies with equal force to a conviction under the ACA. U.S. v. English, 589 F.3d 1373 (11th Cir. 2009).
11th Circuit says court need not distinguish criminal histories in sentencing outside guidelines. (190) Defendants were convicted of reentering a military base after having been removed, a Class B misdemeanor not subject to the Sentencing Guidelines. The district court sentenced all defendants to the maximum six months’ imprisonment and imposed a $3,000 fine on each. They argued that their sentences were plainly unreasonable because the district court failed to individualize their sentences. Some defendants were repeat offenders and others were not, but they all received the same sentence. The Eleventh Circuit affirmed because under extra-guidelines law, the district court is not bound to respect any difference in criminal histories. Since each defendant made a defiant political statement at sentencing, promising to break the law again, it was not unreasonable for the court to conclude that a six-month sentence was necessary. The court also was authorized under extra-guidelines law to impose a fine without a finding of ability to pay. Although the court must consider the defendant’s income, earning capacity and financial resources, there was no suggestion that the court failed to do so. The fine was intended to dissuade defendants from future protesting. U.S. v. Bichsel, 156 F.3d 1148 (11th Cir. 1998).
11th Circuit holds Assimilative Crimes Act sentence may exceed state maximum for sentence of probation. (190) Defendant pled guilty in federal court to misdemeanor child abuse in violation of Florida law, under the Assimilative Crimes Act, 18 U.S.C. § 13, because the crime occurred on a federal enclave. Her guideline range was 0-6 months, and the authorized term of probation under federal law was not more than five years. Florida law set a maximum term of incarceration of one year, and a maximum term of probation of one year. The district court sentenced defendant to five years probation. Defendant argued that her five-year probationary term violated the ACA. The Eleventh Circuit held that federal courts may exceed the state maximum probation term to effectuate federal probation policy. Cases have upheld ACA sentences of supervised release that exceeded the state maximum term of imprisonment. There are strong similarities between supervised release and probation. Federal probation policy warrants an exception to the ACA’s general requirement that a federal and state defendants receive “like punishment.” Here, the sentencing judge sought to provide the defendant with much-needed supervision, which included mental health counseling and refraining from engaging in any employment involving young children. Those goals could not be meaningfully effectuated during a one-year term of probation. U.S. v. Gaskell, 134 F.3d 1039 (11th Cir. 1998).
Commission implements statutory changes for assault, sexual abuse, stalking, domestic violence, harassment, and human trafficking. (190)(215) The Commission implemented the Violence Against Women Reauthorization Act of 2013 (Pub. L. No. 113–4), by providing references to the assault guidelines for new and expanded criminal offenses involving assault, sexual abuse, stalking, domestic violence, harassment, and human trafficking. The changes apply to assaults within the special maritime and territorial jurisdiction of the United States (18 U.S.C. § 113), assaults in Indian Country (18 U.S.C. § 1153), interstate domestic violence and stalking (18 U.S.C. §§ 2261, 2261A, and 2262), international marriage brokers (8 U.S.C. § 1375a), transportation of minors for sexual purposes (18 U.S.C. § 2423), and unlawful conduct with respect to immigration documents (18 U.S.C. §1597). Proposed Amendment 2, effective Nov. 1, 2014.
Articles discuss sentencing on federal enclaves, Indian country and prisoner transfers from abroad. (190) In a special issue of the Federal Sentencing Reporter, District Judge Charles B. Kornmann argues that applying the sentencing guidelines and other federal mandates in Indian country is unfair to Native Americans, and a partial solution would be for Congress to adequately fund tribal court systems. Australian Professor Rick Sarre discusses sentencing in customary or tribal settings in Australia. Lara S. Vinnard of the San Francisco Federal Public Defender’s Office discusses foreign convictions, prisoner transfer treaties and the federal sentencing guidelines, noting that prisoners frequently argue that they have suffered physical abuse or torture while incarcerated in a foreign prison. Assistant Federal Public Defender John B. Butcher argues that the Commission should recognize that the majority of sexual offenders sentenced under the guidelines are Native Americans who are amenable to treatment and have a low rate of recidivism. Assistant Federal Public Defenders Beth Farber and Susan Bauer discuss the unique challenge of federal enclave jurisdiction. Nora V. Demleitner and Jon M. Sands, Overlooked Areas of Federal Sentencing: Federal Enclaves, Indian County, Transfer of U.S. Prisoners from Abroad, 13 Fed. Sent. Rptr. 67 (sept/oct 2000).
Commission expressly states that guidelines apply to Assimilative Crimes Act and Indian Offenses. (190) The background commentary to section 2X5.1 was amended on November 1, 1991, to reflect that Congress amended the Crime Control Act of 1990 to expressly state that the Sentencing Guidelines apply to convictions under 18 U.S.C. section 13 (the Assimilative Crimes Act) and 18 U.S.C. section 1153 (the Indian Major Crimes Act).