concurring in the judgment:
I concur in the judgment of the court but not for the reasons given.
Bear was convicted of burglary in violation of the Indian Major Crimes Act, 18 U.S.C. § 1153 (1988). The Major Crimes Act makes burglary committed by an Indian within “Indian country” a federal crime. See 18 U.S.C. § 1153 (1988). Section 1153, however, does not set forth the elements of the crime of burglary. Instead, section 1153 adopts the otherwise applicable state *1264law, in this case, Idaho Code §§ 18-1401 and 18-1402 (1987). However, the issue remains as to which sentencing statute should govern Bear’s sentence — Idaho law or the United States Sentencing Guidelines.
The Sentencing Reform Act, 18 U.S.C. § 3551, states that the Sentencing Guidelines apply:
Except as otherwise specifically provided, [to] a defendant who has been found guilty of an offense described in any Federal statute ...
(emphasis added). The court concludes that the Guidelines do not apply to a violation of the Major Crimes Act because the Major Crimes Act does not set forth the elements of burglary but instead incorporates the statutory requirements of burglary as defined by otherwise applicable state law. The court goes on to state that section 1153 has failed to “describe” burglary within the meaning of section 3551.
I am not surprised that the opinion cites no authority for this proposition. Simply because a statute which makes burglary a federal offense when committed in Indian country incorporates the specific elements of burglary from another source does not mean that statute fails to “describe” burglary. I believe that the federal statute does in fact describe the crime of burglary, but does so by borrowing the law of Idaho.
Despite my disagreement with the court’s interpretation of “describe” in section 3551, I agree that the Guidelines do not apply to the sentencing of defendants convicted under the Major Crimes Act. Section 3551 explicitly states that the Guidelines do not apply where “otherwise specifically provided.” Section 1153(b) specifically provides that the crime of burglary be “defined and punished in accordance with the laws of the State in which such offense was committed_” Thus, according to the Sentencing Reform Act, the Guidelines do not apply to section 1153. This reasoning upholds the policy of uniformly sentencing Indians and non-Indians who commit the same state offenses on grounds which support, rather than contradict, the plain meaning of section 3551.