United States v. Key

Case: 08-51299 Document: 00511042801 Page: 1 Date Filed: 03/05/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 5, 2010

No.08-51299 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee
v.

RAVIS NEAL KEY, II,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:08-CR-123-ALL

Before JONES, Chief Judge, and SMITH and DEMOSS, Circuit Judges.
EDITH H. JONES, Chief Judge:
Ravis Neal Key, after ingesting a cornucopia of intoxicating drugs, crashed

a car into a vehicle driven by Sergeant Andre M. Araujo, who died as a result.

Key pled guilty to intoxication manslaughter and now challenges his 216-month

sentence, contending that the sentencing court failed to adequately explain its

reasons for imposing an above-guidelines sentence and that the sentence is, in

itself, substantively unreasonable. Finding no sentencing error, we affirm. We
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No. 08-51299

also hold that the Texas offense of intoxication manslaughter was properly

assimilated as the crime of conviction.

I. BACKGROUND

On the morning of Monday, June 30, 2008, Ravis Key awoke in the driver’s

seat of a borrowed car. The aftereffects of the drugs and alcohol he had

consumed with friends the previous night lingered, but he felt sober enough to

drive home. Shortly thereafter, he approached the intersection of Tank

Destroyer Boulevard and Clarke Road, which is located within the Fort Hood

Military Reservation. Sergeant Andre M. Araujo’s vehicle was stopped at the

red light in Key’s lane of traffic. Key’s car collided with Araujo’s at 75 miles per

hour. Key did not brake; his vehicle left no skid marks. Araujo’s car was

propelled into the intersection, where it was struck by another vehicle and

caught fire. Sergeant Araujo died from the massive head injury he received in

the collisions.

Key appeared intoxicated to the military police who arrived at the accident

scene. Tests revealed that his blood contained cocaine,

methylenedioxymethamphetamine (MDMA), benzodiazepines, amphetamines,

and cannabinoids (marijuana). Approximately three to five grams of cocaine

were found in Key’s vehicle. The federal government charged Key with driving

a motor vehicle in a public place while intoxicated, and by reason of that

intoxication causing Sergeant Araujo’s death, in violation of Tex. Penal Code

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§ 49.08 (“Intoxication Manslaughter”), assimilated through the Assimilative

Crimes Act, 18 U.S.C. § 13. Key pled guilty, without a plea agreement. The

state offense carries a maximum penalty of 20 years in prison. Tex. Penal Code

§ 12.33(a).

The pre-sentence report concluded that the most analogous federal

sentencing guideline to the offense of conviction was that for involuntary

manslaughter. See U.S.S.G. §§ 2X5.1, 2A1.4 (2008). Pursuant to that guideline,

Key’s base offense level was 22 because his “offense involved the reckless

operation of a means of transportation,” id., but the department subtracted three

offense levels for acceptance of responsibility. Key’s criminal history—including

one conviction of evading arrest with a vehicle, two convictions of evading arrest,

and two convictions of burglary of a vehicle—resulted in a score of nine and a

criminal history category of IV. Based on these factors, the guidelines range of

imprisonment was from 46 to 57 months.

The pre-sentence report proposed an upward variance based upon the

nature and circumstances of the offense, the history and characteristics of the

defendant, and the need for the sentence to reflect the seriousness of the offense,

to promote respect for the law, and to provide just punishment. See 18 U.S.C.

§ 3553(a). Key had made a conscious decision to drive the vehicle, knowing that

he was still under the influence of drugs. Further, he had admitted daily use of

cocaine, beginning in early 2008, and of marijuana, beginning in early 2005.

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Therefore, he had undoubtedly operated a motor vehicle under the influence of

dangerous drugs before committing the instant offense. For these reasons, the

department urged the district court to consider a variance and sentence Key to

a term of imprisonment that was “significantly higher than the established

guidelines range.”

Key objected that a variance was not warranted. The guidelines sentence,

he argued, considered the consumption of intoxicants, driving a vehicle, and the

accidental death of an individual. He also claimed that the PSR did not

adequately reflect his profound regret for causing Sergeant Araujo’s death. In

addition, Key asserted that lack of sleep, not just intoxication, was a factor in the

accident.

The government, in turn, advocated a non-guidelines sentence that was

“close to” the 20-year statutory maximum. In support of this argument, it

related the extreme “nature and circumstances of the offense,” as well as the

“history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). According

to testimony, Key had borrowed the vehicle in exchange for cocaine, an

arrangement that the government characterized as a “crack rental.” It also

argued that § 2A1.4, the guideline that determined Key’s base offense level,

encompasses a broad array of conduct and includes crimes that do not involve

intoxication. The guideline applies to conduct that is minor when compared to

Key’s conduct, such as when a sober person drives recklessly. Because so many

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scenarios could be considered “reckless,” the base offense level of 22 did not

adequately account for Key’s conduct, which involved multiple controlled

substances, excessive speed, and a collision without braking into a person who

was stopped at a red light. The government further argued that it was hard to

imagine a greater disregard for human life than Key’s and asserted that, in such

a situation, the defendant would likely be charged with second-degree murder.

The government also stated that a greater sentence was necessary to

comply with the purposes set forth in 18 U.S.C. § 3553(a)(2). First, a longer

sentence would be commensurate with the seriousness of the offense. Second,

it was necessary to promote respect for the law and deterrence of criminal

conduct, given the nature of the offense and Key’s criminal record. Third, it

would provide just punishment in light of the offense’s tragic impact on the

victim and his family. Fourth, the purpose of “protect[ing] the public from

further crimes of the defendant,” § 3553(a)(2)(C), warranted a significant

variance from the guidelines range because the instant offense, and several of

Key’s prior offenses, threatened public safety.

Finally, the government argued that a lengthy sentence would avoid

sentencing disparities.

The district court agreed with the government and imposed a sentence of

216 months of imprisonment, far above the guidelines range and slightly below

the statutory maximum. The court explained that the guidelines range was

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“completely inadequate” to achieve the purposes of § 3553(a), and it explicitly

adopted the government’s argument in support of the sentence. It elaborated on

its rationale in a written Statement of Reasons explaining its imposition of a

sentence outside the guidelines range.

Key objected to the sentence as unreasonable and has now timely

appealed.

II. STANDARD OF REVIEW

In general, this court reviews a district court’s sentencing decision under

a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38,

41, 128 S. Ct. 586, 591 (2007). Further, “Appellate review is highly deferential

as the sentencing judge is in a superior position to find facts and judge their

import under § 3553(a) with respect to a particular defendant.” United States

v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). When an objection has

not been raised below, however, plain-error review governs that issue. United

States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009), cert. denied

(October 5, 2009) (No. 08-11099). A plain error is one that is clear or obvious and

that affects the party’s substantial rights. United States v. Baker, 538 F.3d 324,

332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). This court will correct

plain errors only if they seriously affect the fairness, integrity, or public

reputation of judicial proceedings. Id.

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III. DISCUSSION

On appeal, Key raises two issues. First, he argues that the district court

committed procedural error by failing to adequately explain its reasons for

imposing a non-guidelines sentence. Second, he challenges the sentence itself

as substantively unreasonable. In addition, at the request of this court, the

parties briefed a third issue, whether the Texas offense of Intoxicated

Manslaughter was properly assimilated under the Assimilative Crimes Act. We

address each issue in turn.

A. Procedural Error

Key complains that the district court committed a significant procedural

error by failing adequately to consider the policy factors enumerated in 18 U.S.C.

§ 3553(a) and document its reasoning for imposing a non-guidelines sentence, as

required by § 3553(c). Because Key did not raise this objection before the district

court, it is subject to plain error review. Puckett v. United States, ___ U.S. ___,

129 S. Ct. 1423, 1429 (2009).

Section 3553(c) states that the district court, “at the time of sentencing,

shall state in open court the reasons for its imposition of the particular sentence,

and, if the sentence . . . (2) is not of the kind, or is outside the [Guidelines range],

the specific reason for the imposition of a sentence different from that described.”

The district court’s statement of “reasons should be fact-specific and consistent

with the sentencing factors enumerated in § 3553(a).” United States v. Smith,

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440 F.3d 704, 707 (5th Cir. 2006). The court’s justification for a particular

sentence must be sufficient “to allow for meaningful appellate review and to

promote the perception of fair sentencing.” Gall, 552 U.S. at 50, 128 S. Ct. at

597. Moreover, where a district judge “decides that an outside-Guidelines

sentence is warranted, he must consider the extent of the deviation and ensure

that the justification is sufficiently compelling to support the degree of the

variance . . . . [A] major departure should be supported by a more significant

justification than a minor one.” Id.

Key’s argument fails at the first step of plain error review: there was no

error. This court has held that a sentencing court may incorporate into its

statement of reasoning the arguments of the parties before it. In Bonilla, we

considered a challenge to a sentencing court’s justification for a sentence. While

recommending that a district court state its reasons “explicitly on the record,”

we held that there is no error when “[e]xamining the full sentencing record

reveals the district court’s reasons for the chosen sentence and allows for

effective review by this court.” United States v. Bonilla, 524 F.3d 647, 658 (5th

Cir. 2008). Because the § 3553(a) factors were fully addressed at sentencing and

in briefing, the district court’s reference to “arguments made earlier” and

“information in the [pre-sentence] report” was “adequa[te] as a matter of law.”

Id. at 659.

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In the present case, the government’s sentencing argument, which was

explicitly adopted by the district court, exhaustively discussed the § 3553(a)

factors. One by one, it ticked off the factors, explaining how each counsels an

above-guidelines sentence. This recitation goes well beyond what is required by

the law. An “adequate statement” of reasons is sufficient, United States v. Dean,

414 F.3d 725, 729 (7th Cir. 2005); a “robotic incantation[] that each statutory

factor has been considered” is unnecessary. Smith, 440 F.3d at 707 (internal

quotation marks omitted). Even if the magnitude of the departure from the

guidelines required a “more compelling” justification than in the average case,

it has surely been provided.

The district court therefore committed no procedural error in adopting the

government’s legally adequate sentencing argument.

B. Substantive Unreasonableness

Key next contends that his sentence of 216 months of imprisonment, when

compared to the guidelines range of 46 to 57 months, is substantively

unreasonable. Specifically, he argues that the district court relied impermissibly

on enhancing factors that are already incorporated into the guidelines; the

factors cited by the government did not justify the sentence that was imposed in

this case; and his sentence exceeds the sentences of other, similarly situated

defendants. We review for abuse of discretion.

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In reviewing a non-guidelines sentence for substantive unreasonableness,

the court will “consider the ‘totality of the circumstances, including the extent

of any variance from the Guidelines range.’” Brantley, 537 F.3d 347, 349 (5th

Cir. 2008) (quoting Gall, 552 U.S. at 51, 128 S. Ct. at 597). We must also review

whether the § 3553(a) factors support the sentence. See id. at 350. This inquiry,

however, must “give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 552 U.S.

at 51, 128 S. Ct. at 597.

First, Key’s argument that the district court could not rely on factors

already encompassed within the guidelines to support a non-guidelines sentence

is foreclosed. Brantley, 537 F.3d at 350. Though this court had held otherwise

in the past, the Supreme Court’s rulings in Gall, 128 U.S. at 49–50, 128 S. Ct.

at 596–97, and Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007),

abrogated those earlier cases. United States v. Williams, 517 F.3d 801, 809

(5th Cir. 2008). Therefore, giving extra weight to circumstances already

incorporated in the guidelines, such as the death of Sergeant Araujo, is within

the discretion of the sentencing court.

Second, the district court’s rationale provides sufficient justification for the

sentence imposed. As discussed above, the court adopted the government’s

argument in favor of a sentence near the statutory maximum for the offense, and

that argument carefully applied the § 3553(a) factors to the facts of the case.

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The government and, by extension, the court relied particularly on the extreme

nature and circumstances of the offense, the defendant’s criminal history, and

the need for just punishment. The undisputed facts – Key’s extreme

recklessness, his criminal record, his rampant drug use – and the consequences

of his acts all support the court’s upward departure from the guidelines range.

Further, the district court and this court take seriously the government’s

argument that Key’s conduct may have been so reckless and careless as to

demonstrate a complete lack of regard for human life, and that he may have

been charged with second degree murder. Although that offense was not

charged, the possibility speaks to the gravity of the offense and the

inappropriateness of a guidelines range that would apply equally to conduct that

is far less reckless. It is reasonable to punish Key’s offense more harshly than

run-of-the-mill involuntary manslaughter, such as might be committed by a

distracted, but not intoxicated, driver.

Third, disparity in sentencing, standing alone, is insufficient to render a

sentence substantively unreasonable. Like the other § 3553(a) factors, it must

be considered as part of the totality of the circumstances. The sentencing court

is directed to “make an individualized assessment based on the facts presented,”

with respect to each defendant in each case. Gall, 552 U.S. at 50, 128 S. Ct. at

597. An argument premised solely or primarily on disparity necessarily negates

this command, asking the sentencing court to look to others rather than the

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defendant standing before it. Further, this argument overlooks that

disproportionate offenses may warrant disproportionate sentences; these would

evince, by definition, disparity. Under Gall, however, they would not necessarily

be impermissible. Id. at 52, 128 S. Ct. at 598 n.8 (explaining that the abuse of

discretion standard “balance[s] the need to ‘reduce unjustified disparities’ across

the Nation and ‘consider every convicted person as an individual.’”).1

Considering the totality of the circumstances, the sentence is not so

disproportionate as to overcome the weight of the factors in its favor. The

appellant cites cases concerning “similar” offenses, all but one decided before the

Supreme Court rendered the Sentencing Guidelines advisory in United States

v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). Imprisonment in those cases

ranged from 24 to 120 months. Any disparity vanishes, however, when Key’s

sentence is compared to others imposed for Intoxication Manslaughter under

Texas law. Similar offenses yielded sentences ranging from 8 to 20 years of

imprisonment, and offenders with prior felonies received sentences as high as

life imprisonment. See McKenzie v. Texas, 2005 WL 283596 (Tex.App.-Eastland

2005, no writ) (unpublished) (8 years); Ruiz v. Texas, 2005 WL 2469659

(Tex.App.-El Paso 2005, no writ) (unpublished) (20 years); Williams v.

1
In addition, arguments premised on proportion—e.g., that a sentence is some multiple
of the upper end of the guidelines range—suffer a similarly fundamental infirmity, asking the
court to accord the guidelines greater deference than the law permits. Gall v. United States,
552 U.S. at 51, 128 S. Ct. at 597 (2007) ( “if the sentence is outside the Guidelines range, the
court may not apply a presumption of unreasonableness.”).

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Quarterman, 2007 WL 4547847 (N.D. Tex. 2007) (unpublished) (life

imprisonment). If there is a disparity in Key’s sentence, it is not great and

represents a not-unreasonable balancing of the § 3553(a) factors, thereby

reflecting the severity of the offense and history of the defendant.

The district court did not abuse its discretion in sentencing Key to an

above-guidelines sentence.

C. Assimilative Crimes Act

At the request of this court, the parties also briefed an additional issue:

whether the Texas offense of Intoxication Manslaughter was properly

assimilated into federal law under the Assimilative Crimes Act (“ACA”).

Under what review standard this court should address the ACA is the

parties’ first point of dispute. The government argues that, because this issue

was neither raised below nor briefed in this court, it is either foreclosed or

subject to review for plain error. Key, however, asserts that the issue is

jurisdictional and subject to de novo review. The single precedent that Key cites,

United States v. Perez, 956 F.2d 1098 (11th Cir. 1992), accepts without comment

the appellants’ description of the propriety of assimilation as a “jurisdictional”

issue. The Third Circuit, however, carefully addressed an assimilation issue,

finding it analogous to the citation of an incorrect statute in an indictment.

Such an error is not reversible unless a defendant was misled to his prejudice.

See F ED. R. C RIM. P ROC. 7(c)(3). United States v. Hall, 979 F.2d 320, 322-23 (3rd

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Cir. 1992). If the error were jurisdictional, the harmless error standard could

not have applied. The nonjurisdictional character of any assimilation error is

reinforced, if not directly ruled on, by the Supreme Court’s disposition in Lewis,

which merely reversed and remanded for resentencing after the Court found an

improper assimilation. Lewis v. United States, 523 U.S. 155, 172–73,

118 S. Ct. 1135, 1145 (1998). Following these two compelling precedents, and

Key’s own concession that he seeks remand for resentencing, we treat this issue

under a plain error standard.2

Plain error review in this case ends at the first step. Texas’s intoxication

assault statute was properly assimilated.

The ACA, in relevant portion, provides as follows:

Whoever within or upon any of the places now existing or hereafter
reserved or acquired as provided in section 7 of this title . . . is guilty
of any act or omission which, although not made punishable by any
enactment of Congress, would be punishable if committed or omitted
within the jurisdiction of the State, Territory, Possession, or District
in which such place is situated, by the laws thereof in force at the
time of such act or omission, shall be guilty of a like offense and
subject to a like punishment.

18 U.S.C. § 13. Section 7 of Title 18 provides, inter alia, that “lands reserved or

acquired for the use of the United States,” such as the Fort Hood military

2
A good argument can be made that because the defendant never challenged
application of the Texas Intoxication Manslaughter statute in the district court or this court,
any error was waived and foreclosed from appellate review. Little v. Liquid Air Corp., 37 F.3d
1069, 1071 n.1 (5th Cir. 1994) (en banc); United States v. Thibodeaux, 211 F.3d 910, 912 (5th
Cir. 2000). In any event, the ACA issue yields Key no relief.

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reservation, are within the “special maritime and territorial jurisdiction of the

United States” and so subject to the ACA.

According to the Supreme Court, the words of this statute are not to be

taken literally; that is, the fact that conduct could be charged under some federal

statute does not necessarily prevent assimilation of a state offense. Lewis,

523 U.S. at 159–160, 118 S. Ct. at 1139 (1998). Rather, even if conduct is

punishable by some federal offense,

the court must ask the further question whether the federal statutes
that apply to the ‘act or omission’ preclude application of the state
law in question, say, because its application would interfere with
the achievement of a federal policy, because the state law would
effectively rewrite an offense definition that Congress carefully
considered, or because federal statutes reveal an intent to occupy so
much of a field as would exclude use of the particular state statute
at issue.

Id. at 164, 118 S. Ct. at 1141 (citations omitted). To defeat assimilation, this test

does not require the state and federal offenses to consist of the same “precise

acts.” Id. at 163–64, 118 S. Ct. at 1141. It is more nuanced, in large part because

its touchstone is congressional intent: “Does applicable federal law indicate an

intent to punish conduct such as the defendant’s to the exclusion of the

particular state statute at issue?” Id. at 166, 118 S. Ct. at 1142.

In Lewis, the defendants were charged with and convicted of first-degree

murder under Louisiana law, assimilated through the ACA, for the beating and

murder of their four-year-old daughter while on an army base. The government

argued that Louisiana’s first-degree murder statute and the federal murder

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statute covered different forms of behavior, with the state offense focused on a

narrower range of conduct. Specifically, the state law elevated to first-degree

status, and thus harsher punishment, murder “[w]hen the offender has the

specific intent to kill or to inflict great bodily harm upon a victim under the age

of twelve.” The federal law, while defining first-degree murder in specific terms,

lacked any provision concerning the age of the victim. The two offenses, argued

the government, did not cover the same act or omission; the state law, unlike the

federal offense, was in part a child protection statute. Therefore, the state

offense could be assimilated. Id. at 169, 118 S. Ct. at 1143.

The Supreme Court disagreed. It explained that, in the usual case, a state

offense that “focuses upon a narrower (and different) range of conduct” than the

federal offense “argues in favor of assimilation.” But certain features of the

federal murder statute overcame this presumption. First, it was extremely

detailed, drawing a careful distinction between first- and second-degree offenses

and providing for an “extreme breadth of the possible sentences, ranging all the

way from any term of years, to death.” For this reason alone, “There is no gap for

Louisiana’s statute to fill.” Id. at 169, 118 S. Ct. at 1143–44.

Second, Congress had amended the federal murder statute several times,

reflecting “a considered legislative judgment” about the punishment of murder

in federal enclaves. And “where offenses have been specifically defined by

Congress and the public has been guided by such definitions for many years, it

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is unusual for Congress through general legislation like the ACA to amend such

definitions or the punishments prescribed for such offenses, without making

clear its intent to do so.” Id. at 170, 118 S. Ct. at 1144 (internal quotation marks

and citation omitted).

A third consideration was legislative history. In drafting and amending

the ACA, Congress had repeatedly referred to murder as “an example of a crime

covered by, not as an example of a gap in, federal law.” Id. at 170–71, 118 S. Ct.

at 1144. Finally, the Court noted that it had been unable to find a single

reported case in which a state murder statute was assimilated under the ACA.

For these reasons, the Court held the Louisiana statute improperly

assimilated and remanded the case for resentencing under the sentencing

guidelines applicable to second-degree murder.

The Texas statute at issue provides, in relevant portion:

(a) A person commits an offense if the person:

(1) operates a motor vehicle in a public place, operates
an aircraft, a watercraft, or an amusement ride, or
assembles a mobile amusement ride; and

(2) is intoxicated and by reason of that intoxication
causes the death of another by accident or mistake.

Tex. Penal Code § 49.08. This is essentially a strict liability offense.

Key points to the federal offense of involuntary manslaughter as

precluding assimilation of the Texas statute:

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(a) Manslaughter is the unlawful killing of a human being without
malice. It is of two kinds:

Voluntary—Upon a sudden quarrel or heat of passion.

Involuntary—In the commission of an unlawful act not
amounting to a felony, or in the commission in an
unlawful manner, or without due caution and
circumspection, of a lawful act which might produce
death.

18 U.S.C. § 1112. Unlike the Texas offense, the federal offense requires either

a predicate crime or a showing of recklessness. See, e.g., United States v. Fesler,

781 F.2d 384, 393 (5th Cir. 1986).

Lewis’s first prong is met. Because Key killed Sgt. Araujo in the course of

committing the crime of driving while intoxicated, Key’s conduct falls within the

broad purview of 18 U.S.C. § 1112. But this does not end the matter under

Lewis. We must move to Lewis’s second prong and consider whether § 1112

precludes application of the Texas Intoxication Manslaughter statute. Based on

the factors discussed in Lewis as bearing on this prong, we conclude the state

statute was properly assimilated.

That the Texas statute focuses on a far narrower range of conduct than the

federal offense argues in favor of incorporation. Intoxication Manslaughter is

a public safety offense, located in Title 10 (“Offenses Against Public Health,

Safety, and Morals”) of the Texas Penal Code, rather than Title 9 (“Offenses

against Public Order and Decency”). The offense covers a quite specific range of

conduct: intoxication during the use of a conveyance that results in death. The

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federal offense, in contrast, lacks detail and is extremely broad in scope,

restating common law manslaughter. Thus, any killing that occurs while the

defendant is committing a non-felonious crime, or any act committed “without

due caution and circumspection” that results in a death may be charged as

involuntary manslaughter. To be sure, within this range of conduct is most

drunk driving that causes death, but also a near-infinite number of other acts

or omissions resulting in death: grossly negligent captaining of a vessel, United

States v. LaBrecque, 419 F. Supp. 430, 438 (D. N.J. 1976), driving on the wrong

side of a highway, United States v. Pardee, 368 F.2d 368, 375 (4th Cir. 1966),

neglect of duty by a railroad switch-tender, New Jersey v. O'Brien, 32 N.J.L. 169

(N.J. 1867), improper design of a building, New Jersey v. Ireland, 20 A.2d 69, 70

(N.J. Sup. 1941), and overcrowding of a nightclub, Massachusetts v. Welansky,

55 N.E.2d 902, 912 (Mass. 1944). It is plain that the federal and state offenses

cover entirely different forms of behavior.

There is also no evidence that Congress intended for an offense such as

Key’s to be within the exclusive purview of the federal involuntary manslaughter

offense. The statute was derived from the common law by the first Congress and

has not been altered in words for at least a century, Pub. L. No. 60-350, 35 Stat.

1143 (1909), and in substance since its initial enactment. 1 Stat 112, 113 (1790);

Pub. L. No. 80-772, 62 Stat. 683, 756 (1948) (present codification); see

18 U.S.C. § 453 (1940) (tracing the derivation of the offense). It is fair to say

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that Congress has given little consideration to tailoring this offense to specific

forms of conduct. Unlike the statute at issue in Lewis, it does not carve out

particular categories, vary punishment by type of violation, or distinguish among

different levels of culpability. There is no risk, then, that assimilation of the

Texas offense would “effectively rewrite an offense definition that Congress

carefully considered.” Lewis, 523 U.S. at 164, 118 S. Ct. at 1141. And the

statutory text indicates no “intent to occupy so much of a field as would exclude

the use of the particular state statute at issue.” Id.

Quite the opposite. The second subsection of the ACA contemplates

assimilation of state offenses for “operating a motor vehicle under the influence

of a drug or alcohol,” clarifying the application of penalties under state law

18 U.S.C. § 13(b)(1).3 The statute also contemplates the assimilation of such

3
Subsection (b) of § 13 states:
(1) Subject to paragraph (2) . . . , that which may or shall be imposed through judicial
or administrative action under the law of a [State] for a conviction for operating a
motor vehicle under the influence of a drug or alcohol, shall be considered to be a
punishment provided by that law. Any limitation on the right or privilege to operate
a motor vehicle imposed under this subsection shall apply only to the special maritime
and territorial jurisdiction of the United States.
(2)
(A) In addition to any term of imprisonment provided for operating a motor
vehicle under the influence of a drug or alcohol imposed under the law of a
[State], the punishment for such an offense under this section shall include an
additional term of imprisonment of not more than 1 year, or if serious bodily
injury of a minor is caused, not more than 5 years, or if death of a minor is
caused, not more than 10 years, and an additional fine under this title, or both,
if—
(i) a minor (other than the offender) was present in the motor vehicle
when the offense was committed; and
(ii) the law of the [State] in which the offense occurred does not provide
an additional term of imprisonment under the circumstances described
in clause (i).

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No. 08-51299
offenses that result in the “serious bodily injury” or death of a minor.

18 U.S.C. § 13(b)(2). Further, the ACA imposes additional penalties in DWI

cases, when a minor is present or the victim is a minor, if the state offense does

not provide for an additional term of imprisonment. 18 U.S.C. § 13(b)(2)(ii).

This demonstrates that Congress intended the assimilation of state criminal

offenses concerning driving while intoxicated and that its intention extends to

cases in which death results. Far from interfering with a federal policy,

assimilating Texas’s law furthers an explicit federal policy imposing greater

penalties for this type of misconduct. Because the text of the statute is clear in

this regard, repairing to legislative history would be unnecessary and improper.

Despite these indications favoring assimilation of Intoxication

Manslaughter, the appellant has cited a number of cases in which drunken

driving was prosecuted under § 1112 when fatal accidents occurred. 4 Some of

these cases predate Lewis; none discusses the propriety of assimilating an

intoxication manslaughter statute like that of Texas. No doubt defendants

would have no incentive to invoke sterner state statutes. We do not regard the

unexamined resort to § 1112, without assimilation, as dictating the result here.

4
See, e.g., United States v. Jones, 332 F.3d 1294 (10th Cir. 2003); United States v.
Kathman, 490 F.3d 520 (6th Cir. 2007); United States v. Wipf, 397 F.3d 632 (8th Cir. 2005);
United States v. Pettigrew, 468 F.3d 626 (10th Cir. 2006); United States v. Eagle, 498 F.3d 885
(8th Cir. 2007); United States v. Goings, 200 F.3d 539 (8th Cir. 2000); United States v. Bedonie,
413 F.3d 1126 (10th Cir. 2005). But cf. United States v. Calbat, 266 F.3d 358, 362 (5th Cir.
2001) (drunk driving that resulted in severe injury was charged as "intoxication assault" under
assimilated Texas law); United States v. Sasnett, 925 F.2d 392 (11th Cir. 1991) (drunk driving
that caused a death was charged as “DUI manslaughter” under assimilated Florida law).

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No. 08-51299
Because the Texas offense of Intoxication Manslaughter was properly

assimilated, no error, much less plain error, occurred.

IV. CONCLUSION

For the reasons discussed above, the conviction and sentence of Ravis Neal

Key, II, are AFFIRMED.

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No. 08-51299
DeMOSS, Circuit Judge, Dissenting:
With respect for the position stated by my colleagues in the majority
opinion, I find myself in fundamental disagreement with their resolution of
whether Texas Penal Code § 49.08, Intoxication Manslaughter (the “Texas
statute”), was properly assimilated under 18 U.S.C. § 13(a), the Assimilated
Crimes Act (“ACA”).
I.
The ACA makes punishable an act committed on a federal enclave that,
“although not made punishable by any enactment of Congress, would be
punishable if committed . . . within the jurisdiction of the State [the enclave] is
situated.” 18 U.S.C. § 13(a) (emphasis added).1 The ACA’s basic purpose is “to
fill in gaps in federal law where Congress has not defined the missing offenses.”
Lewis v. United States, 523 U.S. 155, 160 (1998) (quoting Williams v. United
States, 327 U.S. 711, 718-19 (1946)) (internal marks omitted).
In 1998, the Supreme Court developed a basic framework to determine
whether a state crime could be assimilated under the ACA. See id. at 164.
Under that framework, the court must first ask: “Is the defendant’s ‘act or
omission . . . made punishable by any enactment of Congress.’” Id. (quoting 18
U.S.C. § 13(a)) (emphasis in original). Ordinarily, if the answer is “no,” the state
statute may be assimilated. Id. If the answer is “yes,” the court must then ask
“whether the federal statutes that apply to the ‘act or omission’ preclude
application of the state law in question, say, because its application would
interfere with the achievement of a federal policy, because the state law would
effectively rewrite an offense definition that Congress carefully considered, or
because federal statutes reveal an intent to occupy so much of a field as would
exclude use of the particular state statute at issue.” Id. at 164-165 (internal

1
The italicized portion of this statute is, in my view, a precondition that should be
addressed first in the process of deciding assimilation.

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No. 08-51299
citations omitted). If the federal statute precludes application of the state law,
the state crime cannot be assimilated. Id. Because the federal statute precludes
application of the state law, I believe there is no “gap” in federal law for the
Texas statute to fill.
A.
The first question under the Court’s framework is whether Key’s actions
on June 30, 2008, are punishable under any enactment of Congress. I believe
they are. Title 18 U.S.C. § 1112 makes punishable the act of causing a death
while in “the commission of an unlawful act not amounting to a felony,”
otherwise known as misdemeanor involuntary manslaughter. On June 30, 2008,
Key drove while intoxicated—a misdemeanor under Texas law. See T EX. P ENAL
C ODE A NN. § 49.04 (Vernons 2003). During the commission of the misdemeanor,
Key caused the death of Sergeant Andre Araujo, and thus committed the federal
offense of involuntary manslaughter. This conduct has been routinely
prosecuted under § 1112. See, e.g., United States v. Lente, 323 F. App’x 698, 699
(10th Cir. 2009) (invoking New Mexico’s misdemeanor offense of driving while
under the influence as the predicate unlawful act); United States v. Kathman,
490 F.3d 520, 522 (6th Cir. 2007) (same, invoking Kentucky’s law); United
States v. Wipf, 397 F.3d 632, 635 (8th Cir. 2005) (requiring the jury to find that
the defendant was driving a vehicle under the influence of alcohol as the
predicate unlawful act); United States v. Dye, 7 F.3d 227, at *1 (4th Cir. 1993)
(unpublished) (invoking the Code of Federal Regulations’ “operating under the
influence of alcohol” offense, which applies in national parks, as the predicate
unlawful act).2

2
In addition to the above cited cases, there have been many other pre- and post-Lewis
cases where § 1112 was charged to punish involuntary manslaughter occurring on an Indian
reservation as a result of driving while intoxicated.

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No. 08-51299
The United States Sentencing Guidelines Manual (“U.S.S.G.”) § 2A1.4
(2007) also indicates that such conduct would be punished under § 1112. Section
2A1.4(a)(2)(B) provides a base offense level of 22 if the offense of involuntary
manslaughter “involved the reckless operation of a means of transportation.”
The commentary provides that “‘[r]eckless’ includes all, or nearly all, convictions
for involuntary manslaughter under 18 U.S.C. § 1112. A homicide resulting
from driving a means of transportation, or similarly dangerous actions, while
under the influence of alcohol or drugs ordinarily should be treated as reckless.”
Id. at § 2A1.4 cmt. n.1.
B.
Because Key’s actions are punishable under a Congressional enactment,
the next question is whether the federal involuntary manslaughter statute
precludes the application of the Texas statute. I believe it does, because the
assimilation of the Texas statute would interfere with the achievement of
federal policy.
The ACA does not assimilate crimes “where both state and federal statutes
seek to punish approximately the same wrongful behavior–where, for example,
differences among elements of the crimes reflect jurisdictional, or other
technical, considerations, or where differences amount only to those of name,
definitional language, or punishment.” Lewis, 523 U.S. at 165.3 Here, both
statutes seek to punish approximately the same wrongful behavior. The federal
statute seeks to punish an individual for causing the death of another while in
“the commission of an unlawful act not amounting to a felony.” 18 U.S.C. §
1112(a). Likewise, the Texas statute seeks to punish an individual for causing
the death of another while in the commission of a misdemeanor, albeit the

3
In my opinion, the statutes are approximately the same: 1) they are modern day
versions of the common law offense of involuntary manslaughter; 2) they are felony offenses;
and 3) neither statute requires a specific criminal intent.

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No. 08-51299
specific misdemeanor of driving while intoxicated. See T EX. P ENAL C ODE A NN.
§ 49.08(a). Because the ACA was designed to assimilate state crimes where
federal statutes did not provide for the punishment of the offense, state statutes,
like the Texas Intoxication Manslaughter statute, that merely penalize one
specific way to violate a federal statute should not be assimilated.
There is no gap in federal law for the Texas statute to fill. In my opinion,
the only reason to prosecute Key under the ACA instead of § 1112 was to
increase the maximum statutory sentence for the offense. The Texas statute
carries a maximum statutory sentence of twenty years, whereas Congress has
limited the maximum sentence under § 1112 to eight years. See T EX. P ENAL
C ODE A NN. §§ 12.33(a), 49.08(b); 18 U.S.C. § 1112(b). In 2007, Congress
considered increasing the punishment for involuntary manslaughter to ten years
but ultimately decided eight years was the appropriate maximum for such
conduct. Compare H.R. 660, 110th Cong. § 207 (as introduced in House Jan. 24,
2007), with H.R. 660, 110th Cong. § 207 (2007) (as enacted). In my view, setting
the statutory maximum for any crime is exclusively a legislative function, and
the executive and judicial branches of our government should not attempt to
bypass or change that legislative decision. Assimilating the Texas statute would
work to bypass Congress’s recent decision to limit the statutory maximum for
Key’s conduct to eight years and would thus be inconsistent with congressional
policy.
The legislative history to the recent amendment to 18 U.S.C. § 1112 also
demonstrates that Congress intended to punish such conduct under § 1112.
Congress passed the Court Security Improvement Act of 2007, which increased
the statutory maximum for involuntary manslaughter from six years to eight.
H.R. 660, 110th Cong. § 207 (2007) (enacted). An indication as to why Congress
increased the statutory maximum came from a statement by Senator John Kyl

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No. 08-51299
to the Senate. 153 C ONG. R EC. S4739-4741 (daily ed. Apr. 19, 2007). Kyl stated
that the statutory maximum sentence for involuntary manslaughter should be
increased because “the Federal criminal justice system still imposes a sentence
for involuntary manslaughter in drunk driving cases that is only a third of the
sentence that would be imposed for the exact same conduct under State law.”
Id. His statement clearly demonstrates that he expected that a person who
causes the death of another when driving while intoxicated would be prosecuted
under § 1112, not under the ACA.
For these reasons, I would find that the Texas statute was not an
assimilated offense under 18 U.S.C. § 13(a).
II.
Because the error was not brought to the court’s attention, we review for
plain error. See F ED. R. C RIM. P. 52(b). An error is plain when it is clear or
obvious and affects an appellant’s substantial rights. Puckett v. United States,
129 S. Ct. 1423, 1429 (2009). If the error was plain, the court then has “the
discretion to remedy the error–discretion which ought to be exercised only if the
error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal citations omitted).
The error in this case was clear and obvious and affected Key’s substantial
rights. In Lewis, the Supreme Court mandated a framework for determining
whether a state statute may be assimilated under the ACA. 523 U.S. at 164.
This mandate was apparently ignored by the prosecutor, defense counsel, and
the district court. Had the players in this case considered Lewis’s framework,
they would have recognized that the Texas statute was not an assimilated
offense under the ACA. Because the assimilation of the Texas statute was in
error, the applicable statutory maximum for Key’s conduct was eight years, not
twenty. However, because defense counsel failed to raise the error and the

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No. 08-51299
district court failed to consider the Lewis analysis when assessing Key’s guilt,
the district court believed the statutory maximum sentence was twenty years
and sentenced Key to eighteen years’ imprisonment. This erroneous belief
undoubtedly affected Key’s substantial rights. See United States v. Garza, 884
F.2d 181, 184 (5th Cir. 1989) (a “court cannot impose a sentence that exceeds the
statutory maximum”).
Because the error was plain, affected Key’s substantial rights, and in my
opinion, “seriously [a]ffect[ed] the fairness, integrity or public reputation of
judicial proceedings[,]” I believe the panel should exercise its discretion and
remedy the error in this case. Puckett, 129 S. Ct. at 1429. The indictment
against Key charged him with violating 18 U.S.C. § 7(3) (defining the special
maritime and territorial jurisdiction of the United States), 18 U.S.C. § 13 (the
ACA), and Texas Penal Code § 49.08 (the Texas Intoxication Manslaughter
statute). The indictment appears to reflect the assumption that assimilation of
a state statute occurs simply by alleging the state statute to be assimilated. This
indictment should have placed Key’s appointed counsel on notice that there was
an assimilation issue in this case. Key’s counsel was thus charged with the
responsibility of determining whether the Texas statute could be assimilated.
Had his counsel researched this area of the law, he would have immediately
discovered that (1) the Texas statute had never been assimilated by the Supreme
Court or any panel of this circuit; (2) the most recent Supreme Court decision
setting forth the requirements of assimilation was Lewis; and (3) 18 U.S.C. §
1112 makes punishable Key’s conduct. This information should have prompted
Key’s counsel to move to dismiss the indictment, as was done in Lewis.
In my opinion, assimilating a state statute under the ACA is so serious
and fundamental a task that the issue deserves thorough consideration by the
prosecutor, defense counsel, and the district court. The fact that the issue was

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No. 08-51299
not considered is troubling. Before charging a crime under the ACA, the
prosecutor should utilize the Lewis framework to determine whether the state
statute can be assimilated. Defense counsel should then, if appropriate,
challenge the prosecutor’s conclusion on assimilation and move to dismiss the
indictment, and finally, the district court should make a determination on the
record applying the Lewis framework.
This did not occur, and as a result, Key received a sentence ten years
above the statutory maximum set by Congress for his offense. The fair, right,
and just result would be to follow our decision in United States v. Lewis, 92 F.3d
1371, 1379 (5th Cir. 1996), implemented by the Supreme Court in Lewis v.
United States, 523 U.S. at 172, and vacate Key’s sentence and remand for
resentencing under the correct statutory maximum of eight years.

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