UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5195
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSIAH CHARLES MCMANUS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:06-cr-00024)
Argued: May 25, 2007 Decided: June 4, 2007
Before TRAXLER and KING, Circuit Judges, and T. S. ELLIS, III,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.
Reversed and remanded by unpublished per curiam opinion. Senior
Judge Ellis wrote a concurring opinion.
ARGUED: David Grant Belser, BELSER & PARKE, Asheville, North
Carolina, for Appellant. Donald David Gast, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Josiah McManus was charged under the Assimilative Crimes Act
(“ACA”), see 18 U.S.C.A. § 13 (West 2000), with speeding to elude
arrest while driving on the Blue Ridge Parkway near Asheville. He
pleaded guilty and was sentenced to 15 months imprisonment.
McManus appeals, challenging the length of his sentence.
“The ACA provides that in the absence of a governing federal
statute, a person who commits a state crime on a federal enclave
‘shall be guilty of a like offense and subject to a like
punishment.’” United States v. Pierce, 75 F.3d 173, 176 (4th Cir.
1996) (quoting 18 U.S.C.A. § 13(a)). Accordingly, a defendant
prosecuted under the ACA “may be sentenced only in the way and to
the extent that the person could have been sentenced in state
court. For instance, a term of imprisonment imposed for an
assimilated crime may not exceed the maximum term established by
state law.” Id. (citations and internal quotation marks omitted).
We agree with McManus that for purposes of this case, the
state maximum sentence was the maximum sentence that could have
been imposed on him by a state-court judge. Under North Carolina’s
structured sentencing scheme, a defendant with McManus’s criminal
history could have been sentenced to a maximum of 10 months. See
N.C. Gen. Stat. § 15A-1340.17(d) (2005). The government, however,
contends that the state statutory maximum for purposes of the ACA
is 30 months, not 10 months, because the relevant North Carolina
2
statute permits a 30-month sentence for a defendant in the highest
criminal history category. We disagree. Even if Blakely’s1 Sixth
Amendment requirements were satisfied, a North Carolina sentencing
court would have no discretion to sentence a defendant with
McManus’s criminal history score to anything above the aggravated
maximum sentence of 10 months. See N.C. Gen. Stat. § 15A-
1340.13(e) (2005) (“The court may deviate from the presumptive
range of minimum sentences of imprisonment specified for a class of
offense and prior record level if it finds . . . that aggravating
or mitigating circumstances support such a deviation. The amount
of the deviation is in the court’s discretion, subject to the
limits specified in the class of offense and prior record level for
mitigated and aggravated punishment.” (emphasis added)). Because
10 months is the maximum that McManus could have received under
state law, we believe 10 months is the maximum state sentence for
purposes of sentencing under the ACA. See Pierce, 75 F.3d at 176
(explaining that a defendant prosecuted under the ACA “may be
sentenced only in the way and to the extent that the person could
have been sentenced in state court” (emphasis added and internal
quotation marks omitted)).
We recognize, of course, that federal courts are not required
to assimilate “every incident of a state’s sentencing policy,”
United States v. Harris, 27 F.3d 111, 115 (4th Cir. 1994), and that
1
Blakely v. Washington, 542 U.S. 296 (2004).
3
state sentencing provisions that conflict with federal sentencing
policy will not be assimilated, see Pierce, 75 F.3d at 176.
Contrary to the government’s suggestion, however, we cannot
conclude that North Carolina’s method for calculating criminal
history points conflicts with federal sentencing policy simply
because McManus would have received a higher criminal history score
under the federal guidelines. Both the federal and state schemes
recognize that repeat offenders should receive more severe
sentences; that the federal and state schemes calculate the scores
differently does not mean that the state scheme conflicts with a
federal sentencing policy.
Under North Carolina’s sentencing scheme, the maximum sentence
in any given case is dependent upon the existence of any
aggravating or mitigating factors and the defendant’s criminal
history score. If we are not required to assimilate those portions
of the North Carolina scheme, then federal courts could impose
sentences that could not be imposed in state court. The ACA does
not require a federal sentence to be identical to the sentence that
would be imposed under state law, but it must be similar. See
Pierce, 75 F.3d at 176. We cannot conclude that a sentence that
would be illegal under state law is nonetheless a “like sentence”
within the meaning of the ACA. See United States v. Young, 916
F.2d 147, 150 (4th Cir. 1990) (explaining that “the ‘like
punishment’ requirement of the [ACA] mandates that federal court
4
sentences for assimilated crimes must fall within the minimum and
maximum terms established by state law, and that within this range
of discretion federal judges should apply the Sentencing Guidelines
to the extent possible” (emphasis added)); United States v. Garcia,
893 F.2d 250, 254 (10th Cir. 1989) (“[T]he [ACA] requires courts to
impose sentences for assimilative crimes that fall within the
maximum and minimum terms established by state law. However,
within the range of discretion permitted to a state judge, a
federal judge should apply the federal sentencing guidelines to the
extent possible.” (emphasis added)).
Accordingly, we conclude that the maximum sentence under North
Carolina law was 10 months. Because the sentence imposed by the
district court exceeded the maximum sentence available under state
law, we reverse McManus’s sentence and remand for re-sentencing
consistent with this opinion.2
REVERSED AND REMANDED
2
We reject the government’s contention that this issue was not
raised below and must therefore be reviewed for plain error only.
The PSR calculated McManus’s sentence under the North Carolina
Structured Sentencing Act, counsel for McManus argued for a
sentence within the presumptive range of the Structured Sentencing
Act, and counsel for the government argued that the court was bound
only by the maximum sentence (30 months) that could be imposed on
any defendant under North Carolina law. We believe this is
sufficient to preserve the issue of what the maximum sentence is
under North Carolina law and thus the maximum to which McManus
could be sentenced under the ACA.
5
ELLIS, Senior District Judge, concurring:
I am pleased to concur in the result reached in the per curiam
opinion, but I nonetheless consider it necessary to write
separately to underscore the narrow range of circumstances in which
this holding would govern.
Analysis must begin with the settled principle, acknowledged
in the per curiam opinion, that “the term ‘like punishment,’ as
used in the ACA, requires only that the punishment be similar, not
identical.” United States v. Pierce, 75 F.3d 173, 176 (4th Cir.
1996). Moreover, “[t]he phrase ‘like punishment,’ does not
encompass every incident of a state’s sentencing policy.” United
States v. Harris, 27 F.3d 111, 115 (4th Cir. 1994). Thus, federal
courts acting pursuant to the ACA are not bound by state rules of
evidence or state law regarding parole, probation, good time
credits, or special assessments. United States v. Slatkin, 984 F.
Supp. 916, 918 (D. Md. 1995); see e.g., Kay v. United States, 255
F.2d 476 (4th Cir. 1958); Harris, 27 F.3d 111. This is so because
“the Sentencing Guidelines apply to convictions under § 13 [the
ACA].” Harris, 27 F.3d at 115. Therefore, to give proper effect
to federal sentencing policies and to satisfy the “like punishment”
requirement of the ACA, we have held that a federal court imposing
an ACA sentence must adhere to the state’s statutorily prescribed
minimum and maximum sentence, but within this range, the court must
apply the Guidelines. United States v. Young, 916 F.2d 147, 150
6
(4th Cir. 1990). This means that “[t]he court is required to
determine if there is a sufficiently analogous offense guideline,
and, if so, to apply the guideline that is most analogous.”
U.S.S.G. Manual § 2X5.1 comment. On the other hand, where “there is
no sufficiently analogous guideline, the provisions of 18 U.S.C. §
3553 control.” Id., see Harris, 27 F.3d at 115. Significantly, in
applying the Guidelines to determine the appropriate sentence
within the state’s statutorily prescribed range, a federal court
“will not assimilate a state sentencing provision that conflicts
with federal sentencing policy.” Pierce, 75 F.3d at 176. Put
simply, “when state law provisions conflict with federal policy,
federal policy controls.” Id.1
It follows from these well-settled principles that where a
district court, acting pursuant to the ACA, finds that there is a
sufficiently analogous offense guideline, which is higher than the
1
Such conflicts arise where, as here, the state’s criminal
history calculation differs markedly from that of the Guidelines.
For example, in this case, under the North Carolina Structured
Sentencing Act, defendant had zero criminal history points, and
thus, was within criminal history category I, while under the
Guidelines defendant’s prior criminal offenses amounted to 4
criminal history points, placing him in criminal history category
III. This significant disparity reflects the difference between
federal sentencing policies and state sentencing policies, and
underscores the importance of not assimilating state sentencing
guidelines in toto because of the potential for conflict with
federal sentencing policies. See United States v. Clark, 361 F.
Supp. 2d 502, 508 (E.D. Va. 2005) (holding that “statutes
expressing [state] sentencing policies do not override the clearly
expressed federal policies contained in the United States
Sentencing Guidelines”).
7
state sentencing guidelines’ presumptive sentence, and thus in
conflict with the state’s presumptive sentence, the federal
Guidelines control and the federal court may impose a sentence
within the state statutory maximum for the offense charged, but
higher than the state sentencing guidelines’ presumptive sentence.
See Pierce, 75 F.3d 173.2 For example, in this case had the
district court applied the Guidelines and found that an analogous
offense guideline advised a sentence of 10 to 15 months, the court
would not have been bound by the 10 month maximum required by the
state’s sentencing guidelines. On the other hand, where, as here,
no sufficiently analogous offense guideline applies, it is
appropriate for a federal court, acting pursuant to the ACA, to
follow the state’s guidelines range.
2
See also United States v. Coleman, 38 F.3d 856 (7th Cir.
1994) (rejecting appellant’s claim that state characterization of
“crime of violence” should govern in an ACA case, rather than the
Guidelines’ definition, because “the defendant was convicted of a
federal crime for which the Guidelines govern sentencing”); United
States v. Garcia, 893 F.2d 250 (10th Cir. 1989) (affirmed a
sentence that fell within the state’s maximum term and was imposed
using a Guidelines calculation, rather than the state’s sentencing
guidelines); United States v. Norquay, 905 F.2d 1157 (8th Cir.
1990) (construing Major Crimes Act (“MCA”), 18 U.S.C. § 1153,
which, like the ACA, assimilates state criminal law and requires
federal courts to impose “the same law and penalties,” to require
that the Guidelines, and not state sentencing guidelines, apply to
determine the appropriate sentence within the state’s statutorily
prescribed range); United States v. Pluff, 2001 U.S. App. LEXIS
18272 (9th Cir. 2001) (overturning prior precedent in MCA case that
held that “state sentencing schemes, rather than the federal
sentencing guidelines, apply in [MCA] prosecutions for crimes that
must be ‘defined and punished’ according to state law”).
8
In sum, where, as is not here the case, an applicable federal
Guidelines range conflicts with the state sentencing guidelines
range, I would conclude that the Guidelines, including its criminal
history calculation, would trump the state’s sentencing guidelines.
9