UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4375
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MELVIN MONROE DEAL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-03-10-1)
Submitted: April 6, 2005 Decided: May 3, 2005
Before MICHAEL and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew B. Banzhoff, Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Donald D. Gast,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Melvin Monroe Deal appeals his conviction and sentence
imposed by the district court under the North Carolina Indecency
With Children statute, N.C.G.S. § 14-202.1, and pursuant to the
Assimilative Crimes Act (ACA), 18 U.S.C. § 13 (2000). The
Government asserts Deal’s waiver of appellate rights in his plea
agreement precludes Deal’s challenges. We previously denied the
Government’s motion to dismiss on this ground and we accordingly
consider the appeal on its merits. We note, however, that the
transcripts of the Rule 11 and sentencing hearings and the other
materials before the court do not indicate Deal preserved the
claims he now raises for appellate review. Accordingly, we review
for plain error. See United States v. Olano, 507 U.S. 725, 732-34
(1993).
Deal’s first contention is that the assimilation of the
state offense was improper under the ACA because his conduct was
punishable under the federal disorderly conduct regulation. See 36
C.F.R. § 2.34. While we conclude the federal disorderly conduct
regulation could apply to Deal’s conduct, we also find that
assimilation was proper because there is no indication the federal
regulation was intended to preclude assimilation of a state statute
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that proscribes the particular egregious conduct of which Deal was
convicted.*
Deal’s second claim challenges the three-year term of
supervised release imposed by the district court. Deal asserts
this part of his sentence violates the ACA because it is not a
“like punishment” under state law and because the sentence could
result in Deal serving a period of incarceration longer than the
maximum incarceration sentence authorized by state law. We
conclude that the imposition of a term of supervised release was in
accord with federal policy and does not violate the “like
punishment” requirement of the ACA. We also conclude the term of
supervised release does not extend the sentence beyond the maximum
incarceration period permitted by state law. See United States v.
Pierce, 75 F.3d 173, 178 (4th Cir. 1996) (noting supervised release
is not considered part of the incarceration portion of the sentence
and is thus not limited by the maximum term of incarceration).
Accordingly, we find no plain error and affirm Deal’s
conviction and sentence. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
*
Deal pleaded guilty to the offense. He admits that he
masturbated in view of minors at an outdoor swimming area and
campground.
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