United States v. Peeble

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4900

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES S. PEEBLES,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:07-cr-00041-RLV-DCK-1)

Argued: January 27, 2010 Decided: March 19, 2010

Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.

Reversed and remanded with instructions by unpublished opinion.
Judge Duncan wrote the majority opinion, in which Judge Davis
concurred. Judge Wilkinson wrote a dissenting opinion.

ARGUED: David Grant Belser, BELSER & PARKE, Asheville, North
Carolina, for Appellant. Donald David Gast, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
ON BRIEF: Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

This appeal arises from a prosecution under the

Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13. After pleading

guilty to the offense of aggravated speeding to elude arrest

under N.C. Gen. Stat. § 20-141.5, Appellant James Peebles

received a prison sentence of twelve months and one day.

Because his maximum sentence under North Carolina law would have

been eight months, we hold that the district court violated the

ACA by not imposing “like punishment.” 18 U.S.C. § 13.

Accordingly, we vacate Peebles’s sentence and remand for

resentencing. 1

I.

On September 9, 2007, in Alleghany County, North Carolina,

James Peebles raced down the Blue Ridge Parkway on his

1
We find it useful to stress the limits of our holding
today. We do not, as the dissent suggests, hold that the ACA
requires “identical” rather than like punishment or that
Peebles’s sentence must track what a North Carolina court would
have imposed. See Dis. Op. at 20 (denying that Peebles’s
“federal sentence should be limited to the individual sentence a
state judge would have imposed on him”). We merely adhere to
circuit precedent finding that the ACA precludes a prison term
outside the minimum and maximum that a state court could have
imposed. See United States v. Pierce, 75 F.3d 173, 176 (4th
Cir. 1996) (stating that under the ACA a defendant “may be
sentenced only in the way and to the extent that the person
could have been sentenced in state court” (internal quotations
omitted)). This does not offend federal sentencing guidelines,
which remain fully applicable within that range.

2
motorcycle, going well over the speed limit. When a National

Park Service Ranger tried to stop him, Peebles tried to escape

and caused a high speed chase. Using a “rolling road block,”

police eventually stopped and arrested him. J.A. 85.

Because this dangerous flight occurred within the special

territorial jurisdiction of the United States, Peebles was

prosecuted under the ACA. This statute assimilates into federal

law offenses that “would be punishable if committed . . . within

the jurisdiction of the State” in which the relevant federal

property is located. 18 U.S.C. § 13(a). Peebles was charged

with aggravated speeding to elude arrest under N.C. Gen. Stat.

§ 20-141.5, and he pleaded guilty. The district court sentenced

Peebles to twelve months and one day imprisonment, followed by

one year supervised release. This appeal followed.

II.

On appeal, Peebles argues that the district court violated

the ACA by imposing a sentence greater than North Carolina’s

statutory maximum. “The proper length of a sentence under the

ACA is a question of law subject to de novo review.” United

States v. Pate, 321 F.3d 1373, 1375 (11th Cir. 2003).

The ACA provides that a person who, within the territorial

jurisdiction of the United States, commits “any act . . . which,

although not made punishable by any enactment of Congress, would

3
be punishable if committed . . . within the jurisdiction of the

State . . . in which such place is situated . . . , shall be

guilty of a like offense and subject to a like punishment.” 18

U.S.C. § 13(a) (emphasis added). In light of circuit precedent

interpreting the highlighted phrase, the government concedes

that the ACA prohibited sentencing Peebles beyond North

Carolina’s statutory maximum sentence. Appellee’s Br. at 11-12.

See also Pierce, 75 F.3d at 176 (“[A] term of imprisonment

imposed for an assimilated crime may not exceed the maximum term

established by state law.”); United States v. Young, 916 F.2d

147, 150 (4th Cir. 1990) (“[T]he ‘like punishment’ requirement

of the Assimilative Crimes Act mandates that federal court

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.”). The only disputed

question is how to calculate North Carolina’s statutory maximum

sentence. Peebles argues that it should be the highest sentence

that a state court could have imposed on him. Under our

precedent, we are constrained to agree.

Unlike most federal criminal statutes, section 20-141.5

defines aggravated speeding to elude arrest but does not specify

the maximum or minimum penalty. Rather, it merely labels the

offense “a Class H felony.” N.C. Gen. Stat. § 20-141.5(b).

4
Maximum penalties are codified elsewhere under the North

Carolina Structured Sentencing Act, N.C. Gen. Stat. § 15A-

1340.10 et seq. Under this regime, for any felony offense,

North Carolina courts have authority to sentence only within a

particular range determined by three variables: (1) the class of

offense, (2) the offender’s prior record level, and (3) whether

the sentence should be aggravated or mitigated beyond the

ordinary or “presumptive” sentence. See N.C. Gen. Stat. § 15A-

1340.13. The process proceeds as follows. First, courts

determine the prior record level by calculating the sum of

points assigned to each prior conviction according to section

15A-1340.14. Then they determine whether the sentence should be

aggravated or mitigated by considering sentencing factors under

section 15A-1340.16. At this stage, the government must prove

aggravating factors beyond a reasonable doubt.

The government does not dispute that Peebles would qualify

for prior record level I. The government also conceded during

oral argument that Peebles’s indictment contains insufficient

allegations to support aggravating his sentence. Therefore, the

highest sentence Peebles could have received under North

Carolina law would have been eight months. See N.C. Gen. Stat.

§ 15A-1340.17(c)-(d). Peebles’s presentence report reached the

same conclusion:

5
 The defendant has zero criminal history points in
accordance with NCGS §15A-1340.14(b)(6) and thus a
prior record level of I. A Class H felony combined
with a level I prior record results in a presumptive
range of a minimum 4 months to a maximum 8 months
active imprisonment.

J.A. 93. Peebles thus concludes that North Carolina’s statutory

maximum sentence would be eight months. The government

contends, however, that the statutory maximum sentence should be

the highest sentence that could ever be imposed for the offense.

This would be thirty months, i.e., the highest aggravated

sentence authorized for someone with prior record level VI. See

N.C. Gen. Stat. § 15A-1340.17(c)-(d). The choice between these

approaches determines whether Peebles’s sentence of twelve

months and one day violated the ACA’s “like punishment”

requirement.

Given our precedent, we are constrained to adopt Peebles’s

contention. Pierce stated that “like punishment” under the ACA

means that “one who commits an act illegal under state law but

not prohibited by federal law in an area of federal jurisdiction

may be sentenced only in the way and to the extent that the

person could have been sentenced in state court.” 75 F.3d at

176 (internal quotations omitted) (emphasis added). This

language suggests that the district court’s sentence should not

have exceeded the maximum sentence that Peebles himself (rather

than any hypothetical defendant) could have received under North

6
Carolina law. See also United States v. McManus, 236 F. App’x

855, 856 (4th Cir. 2007) (considering N.C. Gen. Stat. § 15A-

1340.17 and concluding, “[w]e agree with McManus that . . . the

state maximum sentence was the maximum sentence that could have

been imposed on him by a state-court judge”).

This conclusion also comports with the congressional

purpose underlying the ACA and general principles of federalism.

Dating back to 1825, the ACA was designed to fill gaps created

where state criminal law became inapplicable because the federal

government had reserved or acquired land. The Supreme Court

explained further:

When the[] results of the statute are borne in mind,
it becomes manifest that Congress, in adopting it,
sedulously considered the twofold character of our
constitutional government, and had in view the
enlightened purpose, so far as the punishment of crime
was concerned, to interfere as little as might be with
the authority of the states on that subject over all
territory situated within their exterior boundaries,
and which hence would be subject to exclusive state
jurisdiction but for the existence of a United States
reservation. In accomplishing these purposes it is
apparent that the statute, instead of fixing by its
own terms the punishment for crimes committed on such
reservations which were not previously provided for by
a law of the United States, adopted and wrote in the
state law, with the single difference that the
offense, although punished as an offense against the
United States, was nevertheless punishable only in the
way and to the extent that it would have been
punishable if the territory embraced by the
reservation remained subject to the jurisdiction of
the state.

7
United States v. Press Publ’g Co., 219 U.S. 1, 9-10 (1911).

Here the Supreme Court made clear that the ACA was never

supposed to displace the outer limits on sentencing discretion

imposed by state law. This underscores Pierce’s implication

that a defendant being prosecuted under the ACA should not

receive a prison sentence that a state court would have lacked

authority to impose.

Our holding today also finds support in United States v.

Harris, 27 F.3d 111 (4th Cir. 1994). There, the defendant was

prosecuted under the ACA for driving while impaired under N.C.

Gen. Stat. § 20-138.1. This statute defined driving while

impaired but, rather than specify the authorized punishment,

provided that punishment should be imposed under N.C. Gen. Stat.

§ 20-179. Section 20-179 authorized different punishment levels

depending on whether various aggravating or mitigating

circumstances had been proved. Although counsel for both sides

agreed on the appropriate level, we nevertheless observed:

“Other subsections of § 20-179 authorize more severe punishment

than that permitted by subsection (k). But the government did

not prove the elements necessary to bring Harris within the

purview of the other subsections.” Id. at 116. Implicit in

that observation is the recognition that the government would

have had to present relevant evidence to support the maximum

sentence the provision would afford.

8
 Given the structural similarity between section 20-179 and

section 15A-1340.17, Harris indicates that the ACA prohibits

sentencing Peebles beyond eight months unless the government had

established the elements necessary for the aggravated range or

Peebles’s record level had been greater. Because neither

occurred, Peebles’s actual sentence of twelve months and one day

was unlawful.

In sum, because North Carolina’s statutory maximum sentence

applicable to Peebles was eight months, the district court

violated the ACA’s “like punishment” requirement by sentencing

Peebles to twelve months and one day. Thus, we vacate Peebles’s

sentence and remand for resentencing consistent with this

opinion. 2
REVERSED AND REMANDED WITH INSTRUCTIONS

2
Peebles also challenges how the district court applied the
U.S. Sentencing Guidelines. The court applied section 2A2.4
upon finding it “sufficiently analogous” to Peebles’s crime of
aggravated speeding to elude arrest. U.S. Sentencing Guidelines
Manual § 2X5.1 [hereinafter “USSG”]. We decline to reach this
issue because, assuming we found error, the resulting benefit
would be trivial. See USSG § 5G1.1 (“Where the statutorily
authorized maximum sentence is less than the minimum of the
applicable guideline range, the statutorily authorized maximum
sentence shall be the guideline sentence.”). Furthermore, our
circuit precedent makes plain that the Guidelines by no means
trump the ACA’s “like punishment” requirement. See Young, 916
F.2d at 150 (“[T]he ‘like punishment’ requirement of the
Assimilative Crimes Act mandates that federal court 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.”).

9
WILKINSON, Circuit Judge, dissenting:

I agree with the majority that an offense under the

Assimilative Crimes Act (ACA), 18 U.S.C. § 13, may be punished

only within the “the maximum term established by state law.”

U.S. v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996). My concern is

that Peebles’s novel interpretation of that well-established

principle disregards our precedent and creates a circuit split

by requiring federal courts to apply state sentencing guidelines

to individual defendants. The ACA requires only “like” -- not

“identical” -- punishment. Every other court that has

considered the interaction between federal and state sentencing

practices for ACA purposes has rightly recognized that while the

generic statutory ranges established by state substantive law

limit the permissible ACA punishment, federal courts need not

apply individualized state sentencing calculations. The

sentence imposed here was reasonable, respected the state

sentencing range for Class H felonies, and in no sense amounted

to an abuse of discretion on the part of the district court.

See Gall v. U.S., 552 U.S. 38 (2007). As a result, I

respectfully dissent. 1

1
In an opening footnote, see Maj. Op. at 2 n.1, my good
colleagues in the majority claim to uphold federal sentencing
practice within the state sentence range, but the majority’s
three month “range” is so constricted that federal practice
hardly applies. Contrary to the majority’s protestations,
(Continued)
10
 I.

Even the twelve month and one day sentence that Peebles

would have us discard does not fully reflect the deadly nature

of his crime. Certainly the proffered maximum sentence of eight

months fails to do so in light of his potentially lethal

behavior. Peebles led police on a high speed chase after

refusing to pull over his motorcycle for traveling twenty miles

per hour over the speed limit. Reaching speeds above one

hundred miles per hour along the winding twists of the Blue

Ridge Parkway, he fled for some twenty-five miles. Travelers on

individualized state sentencing comes so close to impermissible
identicality as to render any distinction between the two
negligible. See infra Part II.C. Second, the majority declares
the maximum state sentence to be eight months, but that
declaration begs the question of what state sentence ranges
apply. Class H felonies are subject to a generic four to thirty
month range under North Carolina law, and it is that range and
that maximum, not individualized state procedures, that respects
Congress’s sentencing policy set forth in 18 U.S.C. § 3551(a).
See infra Part II.A. Finally, the majority argues that a
defendant “may be sentenced only in the way and to the extent
that the person could have been sentenced in state court.” U.S.
v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996). But immediately
after that language, Pierce emphasized that “like punishment
does not encompass every incident of a state’s sentencing
policy” and in fact affirmed the imposition of a federal term of
supervised release under the ACA instead of requiring state
probation. Id. at 176-77 (citation omitted). Nothing in Pierce
or our other precedent elevates individualized state sentencing
procedures above federal sentencing practice, see infra Part
II.C. In doing so, the majority transforms the ACA from a gap
filling statute into one of displacement, again in contravention
of Congress’s express intent in Section 3551(a). See infra
Parts II.A and B.

11
the scenic byway were forced off the road. Peebles passed more

than a dozen cars in no passing zones while narrowly missing

head on collisions with two separate vehicles. His mad dash did

not end until officers from the North Carolina Highway Patrol

and the Alleghany County Sheriff’s Department set up a rolling

roadblock. Even then, Peebles was only captured when his

motorcycle went off the road as he attempted to turn around to

avoid the roadblock and continue his flight. Something is wrong

when the twelve month and one day sentence of such a malefactor

is reduced to a mere eight month maximum. What is wrong is

appellant’s view of the ACA.

II.

Peebles claims the ACA’s “like punishment” clause, codified

in 18 U.S.C. § 13(a), requires us to follow state law right down

to the individualized, defendant-specific provisions of North

Carolina sentencing practice. But when we move from the generic

range that a hypothetical defendant could receive under state

law to the individualized North Carolina calculation that

Peebles demands, we come perilously close to replacing the ACA’s

“like punishment” requirement with one of “identical

punishment.” Peebles’s argument also ignores important guidance

from other federal statutes, the history of the ACA itself, and

the extensive caselaw of circuits across the country. The

12
better understanding of “like punishment” is that the ACA

directs federal courts to sentence within the generic range of

permissible state sentences that could be imposed on a

hypothetical defendant but to follow federal sentencing policy

so long as it consistent with that range.

A.

As an initial matter, the ACA’s “like punishment”

requirement must be interpreted in pari materia with 18 U.S.C.

§ 3551(a), which explains what types of sentences are authorized

in federal courts. That section indicates that “a defendant who

has been found guilty of an offense described in any Federal

statute, including sections 13 and 1153 of this title . . .

shall be sentenced in accordance with the provisions of this

[federal sentencing] chapter so as to achieve the purposes set

forth in [18 U.S.C. § 3553(a)(2)(A)-(D)]”. 18 U.S.C. § 3551(a)

(emphasis added). The emphasized reference to 18 U.S.C. § 13

(the ACA) was added by Congress in 1990 and makes explicit the

fact that federal sentencing procedures apply to ACA crimes.

See Pub. L. 101-647, § 1602, 104 Stat. 4789, 4843. Even before

Congress added this reference, courts had already recognized

that Section 3551(a) provides a statutory directive that federal

sentencing practices apply to assimilated crimes. U.S. v.

Marmolejo, 915 F.2d 981, 984 (5th Cir. 1990); U.S. v. Garcia,

13
893 F.2d 250, 253-54 (10th Cir. 1989). Section 3551(a) thus

gives the term “like punishment” a specific, limited meaning:

within the generic state sentencing range assimilated by the

ACA, federal sentencing policy determines the actual sentence.

See, e.g., U.S. v. Pierce, 75 F.3d 175, 176 (4th Cir. 1996).

B.

Further, the legislative history of the ACA itself

indicates that Peebles’s interpretation of the ACA’s “like

punishment” clause cannot be correct. Prior to 1909, the law

that became the ACA required defendants convicted of assimilated

crimes to “be liable to and receive the same punishment as the

laws of the state.” Ch. 576, § 2, 30 Stat. 717, July 7, 1898

(emphasis added). In 1909, however, the “same punishment”

requirement was replaced with the current ACA formulation of

“like punishment.” See Ch. 321, § 289, 35 Stat. 1145, Mar. 4,

1909. This switch undercuts Peebles’s assertion that federal

courts must apply individualized state sentencing procedures.

Now sentences need only be similar to what would be imposed in

state court. “The word ‘like’ in the current version of the ACA

thus implies similarity, not identity.” Marmolejo, 915 F.2d at

984. Peebles’s contrary position may have been good law during

Teddy Roosevelt’s administration, but for over a century

14
Congress has required only “like punishment,” which does not

require reference to individualized state sentencing procedures.

Additionally, the purpose of the ACA suggests that Peebles

mistakenly interprets the “like punishment” requirement. The

ACA exists to fill gaps in federal criminal law so that

wrongdoing on federal land can be punished even if Congress has

not thought to criminalize a specific act. See, e.g., U.S. v.

Gaskell, 134 F.3d 1039, 1042 (11th Cir. 1998) (“The purpose of

the ACA is to provide a body of criminal law for federal

enclaves by using the penal law of the local state to fill the

gaps in federal criminal law.”) (internal citations omitted);

Garcia, 893 F.2d at 253 (same). Because the purpose of the ACA

is gap filling, it is fair to infer that courts should only

assimilate state law to the extent that there is no

corresponding federal guidance. In the present case, there is

no federal law of aggravated speeding to elude arrest, and the

district court correctly assimilated that North Carolina crime.

However, there are comprehensive federal sentencing laws, and it

would be counterintuitive to overturn those federal procedures

by incorporating individualized state sentencing through a mere

gap filling measure.

15
 C.

Peebles attempts to overcome the statutory obstacles of

text, history, and purpose by claiming that our prior

precedents, including United States v. Pierce, 75 F.3d 173 (4th

Cir. 1996), United States v. Harris, 27 F.3d 111 (4th Cir.

1994), and United States v. Young, 916 F.2d 147 (4th Cir. 1990),

suggest that “like punishment” requires individualized

sentencing based on state law. But those decisions actually

buttress what 18 U.S.C. 3551(a) and the history of the ACA

already make clear, indicating that the normal ACA practice is

to use federal, not state, sentencing procedures to the fullest

extent possible within the boundaries of assimilated substantive

state law. As Pierce explained, “state law may provide the

mandatory maximum or minimum sentence, but the federal

sentencing guidelines determine the sentence within these

limits.” 75 F.3d at 176. Indeed, we noted in Young that “[t]he

[Federal] Sentencing Reform Act and the [Federal] Sentencing

Guidelines adopted thereunder apply to assimilated crimes,”

explicitly rejecting claims that federal judges should apply

state sentencing practices to ACA offenses. 916 F.2d at 150.

If Peebles is correct that individualized state sentences are

required, he comes close to rendering the concept of “maximum or

minimum” sentences irrelevant. If he were arguing for a generic

state law range, I would agree that the ACA requires federal

16
courts to sentence within such boundaries. But he does not.

Peebles asks to be sentenced between an individualized “maximum”

of eight and an individualized “minimum” of five months. This

so-called three month “range” is so defendant-specific when

compared to the statutory four to thirty month range for a

hypothetical Class H felon that it is nearly meaningless.

Peebles’s argument also disregards the fact that we have

rejected requests to incorporate the trappings of individualized

state sentencing on previous occasions. We have recognized that

“[t]he phrase ‘like punishment’ . . . does not encompass every

incident of a state’s sentencing policy.” Harris, 27 F.3d at

115. Far from it. A federal court “will not assimilate a state

sentencing provision that conflicts with federal sentencing

policy.” Pierce, 75 F.3d at 176. In Pierce, we went so far as

to uphold a federal ACA sentence that included a term of

supervised release, even though North Carolina sentencing law

only provides for probation. Id. at 177. Even more

importantly, we affirmed despite the fact that the supervised

release term exceeded the maximum jail term allowed under state

law because “supervised release is not considered to be a part

of the incarceration portion of a sentence and therefore is not

limited by the statutory maximum term of incarceration.” Id. at

178. As a result, we declined to follow state probation rules

and instead gave full force to federal sentencing policy within

17
the ACA’s boundaries. Id. See also U.S. v. Engelhorn, 122 F.3d

508 (8th Cir. 1997) (same); U.S. v. Burke, 113 F.3d 211 (11th

Cir. 1997) (per curiam) (same).

Peebles thus invites us to pick and choose the portions of

state sentencing policy that we will now follow. Under Pierce,

federal supervised release trumps state probation rules, but

without questioning that earlier holding, Peebles now promotes

individualized state sentencing calculations over federal

sentencing policy. This approach can only result in complex,

arbitrary, pick-and-choose distinctions. To avoid this pitfall,

courts have two choices: rewrite the ACA’s statutory command of

“like punishment” to read “identical punishment” or recognize

that “like punishment” contemplates only that federal sentencing

policy applies within the state’s generic maximum and minimum

sentence range. Our case law correctly selects the latter

approach, and there is no reason to revisit that choice.

D.

Nor is our circuit an outlier. Our sister circuits also

recognize that federal -- rather than state -- sentencing

procedures apply when calculating individual ACA sentences.

See, e.g., U.S. v. Calbat, 266 F.3d 358, 362 (5th Cir. 2001)

(“Consequently, state law fixes the range of punishment, but the

Sentencing Guidelines determine the actual sentence within that

18
range.”) (internal citation omitted); U.S. v. Queensborough, 227

F.3d 149, 160 (3d Cir. 2000) (same); U.S. v. Gaskell, 134 F.3d

1039, 1043, 45 (11th Cir. 1998) (same); U.S. v. Leake, 908 F.2d

550, 552 (9th Cir. 1990) (same); U.S. v. Garcia, 893 F.2d 250,

251-52 (10th Cir. 1989) (same); see also U.S. v. Norquay, 905

F.2d 1157, 1161-62 (8th Cir. 1990) (same in interpreting

statutory provision similar to ACA). While many of the

decisions from this and other circuits predate United States v.

Booker, 543 U.S. 220 (2005), and its progeny, I do not think

their basic teaching about federal sentencing practices is

rendered in any way inapplicable by the fact that the Guidelines

are presently advisory. See Gall v. U.S., 552 U.S. 38 (2007).

If anything, the greater discretion now afforded district courts

in sentencing would seem inconsistent with the strict handcuffs

that Peebles would place upon them.

In addition to the widespread recognition that federal

sentencing procedures apply to ACA crimes, other circuits also

have taken the same approach as this court in declining to

require adherence to state probation rules. See Gaskell, 134

F.3d at 1043 (citing and discussing Second, Ninth, and Tenth

Circuit decisions). As the Ninth Circuit explained long ago,

“[t]o hold otherwise would be to have two classes of prisoners

serving in the federal prisons: Assimilative Crimes Act

prisoners and all other federal prisoners. That situation would

19
be disruptive to correctional administration, and we do not

think Congress intended this result.” U.S. v. Smith, 574 F.2d

988, 992 (9th Cir. 1978). The two-tiered system for which

Peebles argues cannot be what Congress intended, and “[e]fforts

to duplicate every last nuance of the sentence that would be

imposed in state court has never been required.” Garcia, 893

F.2d at 254.

III.

Peebles’s error is further exacerbated by his

misapprehension of the interaction between the ACA, 18 U.S.C.

§ 13, the assimilated crime of aggravated speeding to elude

arrest, N.C. Gen. Stat. § 20-141.5, and the North Carolina

structured sentencing statute, N.C. Gen. Stat. § 15A-1340.17.

Peebles claims his federal sentence should be limited to the

individual sentence a state judge would have imposed on him.

But the ACA does not incorporate North Carolina structured

sentencing. Instead it incorporates substantive offenses that

“would be punishable if committed . . . within the jurisdiction

of the State.” 18 U.S.C. § 13(a).

As the majority acknowledges, the typical federal criminal

statute specifies a maximum and a minimum penalty as part of the

statutory definition of the offense. When an assimilated

statute is structured similarly, the maximum and minimum ranges

20
apply, but federal courts are free to use federal sentencing

practices within those boundaries. See, e.g., Queensborough,

227 F.3d at 160 (twenty year federal sentence valid when

assimilated Virgin Islands law authorized ten years to life).

In such a situation, whatever sentencing guidance the state may

establish elsewhere is irrelevant for federal assimilation.

North Carolina law operates identically, though with less

clarity than is typical. The substantive law merely defines

Peebles’s aggravated speeding offense as a “Class H felony.”

N.C. Gen. Stat. § 20-141.5(b). The authorized sentence range is

then codified separately in tabular form. N.C. Gen. Stat.

§ 15A-1340.17(c) and (d). That table indicates that a Class H

felony can be punished by four to thirty months. See N.C. Gen.

Stat. § 15A-1340.17(c) and (d). North Carolina courts recognize

that this range establishes the authorized maximum sentence,

regardless of specific defendants’ individual characteristics.

See State v. Dewberry, 600 S.E.2d 866, 870 (N.C. App. 2004)

(“The maximum sentence for a Class H felony is 30 months.”);

State v. Bernard, No. COA07-1289, 2008 WL 1948022, at *6 (N.C.

App. May 6, 2008) (defendant considering self-representation

warned that “speeding to elude is a Class H felony carrying a

maximum punishment of 30 months.”). See also U.S. v. Jones, 195

F.3d 205, 207 (4th Cir. 1999) (“viewing the class maximum as the

21
statutory maximum for the crime appears to accord . . . with the

general practice in North Carolina courts”).

North Carolina also chose to codify its state sentencing

procedures in the same statute. This decision, however, does

not alter the fact that the resultant law performs two

independent and severable tasks. The first is to provide a

generic reference table that categorizes the range of authorized

penalties by felony class, in the case of a Class H felony up to

thirty months. In addition to this initial function, the

statute serves a secondary purpose of laying out the state’s

sentencing regime. While it is undisputed that Peebles would

have received a sentence between five and eight months if

sentenced under state sentencing guidelines in state court,

federal courts are not required to adopt the identical local

procedures in sentencing ACA defendants. The Class H felony

punishment of up to thirty months is what is assimilated by the

ACA, not every particular of state sentencing rules. See

Garcia, 893 F.2d at 254. 2

2
Nor does the majority’s contrary view do criminal
defendants any favors. In many instances state sentencing law
may provide for a harsher punishment than provided by federal
sentencing policies. For instance, North Carolina sentencing
procedures typically give judges unfettered discretion to decide
whether sentences imposed for multiple counts should run
concurrently or consecutively. See N.C. Gen. Stat. § 15A-1354.
In contrast, federal policy generally favors concurrent
sentences, albeit with some exceptions. See, e.g., U.S.S.G.
(Continued)
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 In short, Peebles asks us to create a North Carolina

anomaly that conflicts with the precedent of this and other

circuits. Under the ACA, Peebles is only entitled to “like

punishment,” and that is precisely what the district court’s

sentence provided. By focusing on the individualized elements

of state sentencing rules, appellant disregards the ACA’s

century-old “like punishment” requirement in favor of the “same

punishment” phrasing rejected by Congress in 1909. The ACA

“fills in gaps in federal criminal law.” Garcia, 893 F.2d at

253 (citation omitted). It is not intended to displace the

comprehensive federal sentencing practice with individualized

state sentencing procedures. Pierce, 75 F.3d at 176 (“a federal

court . . . will not assimilate a state sentencing provision

that conflicts with federal sentencing policy.”). And it

certainly is not intended to impair the basic prerogative of the

United States to ensure a modicum of public safety on federal

lands and parkways. Other courts have been able to accommodate

state sentencing ranges and this core federal concern, and I

respectfully dissent from the failure to follow their example.

§ 5G1.2 (guideline for sentencing on multiple counts of
conviction).

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