United States v. Martinez

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_______________

m 00-50436
_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CYNTHIA L. MARTINEZ,
also known as Cynthia Lyda,
also known as Cynthia Lynn Hedum,

Defendant-Appellant.

_________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________

November 28, 2001

Before JONES, SMITH and DEMOSS, Texas’s concurrent sentencing requirements.1
Circuit Judges. We agree that, under the facts of this case, a
federal sentence more than three times the
JERRY E. SMITH, Circuit Judge: length of the sentence Lyda would have
received under state law is not “like” the state
Cynthia Lyda, formerly Cynthia Martinez, punishment. We vacate the judgment of
appeals a sentence of thirty-two years’ sentence and remand for resentencing to a
imprisonment under the Assimilative Crimes term of no greater than ten years.
Act, 18 U.S.C. § 13 (“ACA”), which requires
the district court to impose a punishment
1
“like” the ten-year maximum imposed under There is federal jurisdiction for these crimes
because they were committed at Lackland Air
Force Base, a federal facility.
 I. Martinez learned that Lyda had purchased
Lyda suffers from a psychiatric disorder several bottles of Ipecac, which induces
known as Munchausen’s Syndrome by Proxy, vomiting. After exhuming Aaron’s body, a
as a consequence of which she has induced or forensic toxicologist analyzed Aaron’s hair and
aggravated serious medical conditions in three found proof of Ipecac poisoning. The treating
of her childrenSSAaron, Daniel, and Joseph. physician, Dr. Saunder M. Bernes, testified
This abuse caused Aaron’s death, Daniel’s cat- that he believed Aaron’s death was a homicide,
astrophic brain damage, and Joseph’s hos- and the large fluctuations in his physical health
pitalization. were more consistent with poisoning than with
a degenerative disease.
On the recommendation of Joseph’s
treating physicians, the FBI began videotape After Daniel’s premature birth, he
surveillance of Joseph’s hospital room. Those experienced a similar pattern of health
tapes revealed Lyda’s mistreatment of Joseph, problems: mild developmental delay, seizures,
which led to this indictment, plea, and apnea, vomiting, feeding intolerance, and
sentence. gastrointestinal bleeding. Doctors were unable
to isolate the cause of these symptoms. The
The sentencing court considered Lyda’s treating physicians responded, progressively,
abuse of all three children when departing by inserting an NG tube into the stomach,
upward for Lyda’s criminal history and wrapping the top of the stomach to keep food
extreme conduct. Aaron, Daniel, and Joseph from coming out (fundoduplication), and
had a common pattern of development: eventually performing a tracheostomy and a
colonoscopy. During Daniel’s final
Aaron was born prematurely in 1988. As hospitalization in August of 1993, Lyda was
he grew older, Lyda reported an increasing the only other person in the room during his
number of apnea and seizure episodes. Aaron cardiac arrest. She failed to alert medical
lost weight and suffered from chronic vomiting personnel until Daniel had reached an
and diarrhea; doctors surgically inserted a advanced stage of cardiac arrest. The arrest
gastric tube to feed him. After extensive test- reduced him to a vegetative state, and he
ing, doctors were unable to reach a definitive currently functions at the level of a one- or
diagnosis, although they considered various two-month-old.
mitochondrial disorders; the hospital released
Aaron. In March 1990, Lyda called her Lyda gave birth to Joseph seven months af-
husband, David Martinez, at work and ter Daniel’s cardiac arrest. After Joseph’s pre-
reported that Aaron had stopped breathing. mature birth, he failed to gain weight, despite
When Martinez arrived, Aaron lay flat on his clinical tests showing that he ingested food
back, wearing only a diaper, and Lyda sat normally. The failure to gain weight persisted
crying by his body. Martinez began CPR, but until he reached the age of five and one-half
the doctors reported that Aaron was brain months, when his treating physicians hospit-
dead, and the parents ultimately decided to alized him. Over the course of several months,
turn off the ventilator and allow him to die. doctors failed to diagnose his illness, and the
government’s expert ruled out a mitochondrial
After the parents’ divorce in 1995, disorder (although a defense expert testified

2
that all three children suffered from a pinching and squeezing Joseph severely and
mitochondrial disorder). causing him visible pain. A nurse’s report
describes Joseph’s discomfort, and a treating
The surgeons performed a gastrostomy, a physician testified that pain can induce apnea.
fundodoplication, and a tracheostomy and in-
serted a central line. Joseph had difficulty re- A government forensic toxicologist, Dr.
ceiving nutrition through the tube, however, Alphonse Poklis, reviewed the medical records
because his stomach bloated at night. In mid- of all three children and determined that Ipecac
November, he suffered from “polymicrobial poisoning had caused their symptoms. A
sepsis,” or the presence of mixed numbers of government expert in mitochondrial disease,
bacteria in his bloodstream. Four different Dr. Richard Haas, testified that even if a
types of fecal bacteria polluted the mitochondrial disorder had caused some of
bloodstream, and, at sentencing, experts their symptoms, Ipecac poisoning was respon-
agreed that only the introduction of feces into sible for some symptoms. Haas also testified
the intravenous line could have caused this that another human being caused their anoxia
unusually severe sepsis. (lack of oxygen). After separation from Lyda,
Joseph’s physical symptoms disappeared,
After the sepsis, four treating physicians which some experts testified is more consistent
discussed their suspicions that Lyda had with Ipecac poisoning than with a
caused Joseph’s illness. The doctors reported mitochondrial disorder.
their suspicions to the Office of Special
Investigations, and the FBI placed a video II.
camera in Joseph’s hospital room. The tape Lyda pleaded guilty to four counts of injury
shows five types of abuse: (1) On to a child and endangering a child as defined
November 24 and 25, the tape showed Lyda by Texas Penal Code §§ 22.04 and 22.041 and
pouring a substance, presumably water, into incorporated by the ACA. The plea agreement
Joseph’s feeding bag. This would dilute the stipulated that Lyda’s sentence “will be
formula, causing the medical staff to believe imposed in conformity with the Federal
that formula was not effectively promoting Sentencing Guidelines and Policy Statements,
growth and forcing the doctors to perform which may be up to the maximum allowed by
more drastic medical procedures. (2) On statute for her offense.”
December 2, 1994, Lyda blew into Joseph’s G
tube six times, which caused distention and The district court initially calculated a total
discomfort and forced the doctors to offense level of 29 and a criminal history
discontinue feedings. (3) Also on December 2, category of I, which yielded an imprisonment
Lyda placed objects into the G tube and range of 87-108 months and a supervised
feeding apparatus, which blocked the food release period of 2-3 years. The court then
from draining into Joseph’s stomach. (4) made several upward departures:
That same day, Lyda placed her fingers over
Joseph’s trachea site, suffocating him for sixty- (1) The court departed upward to increase
two seconds. This suffocation threatened to her criminal history category from I to III to
spark a long apneic episode with significant reflect uncharged criminal conduct toward Aa-
effects. (5) Finally, two tapes reveal Lyda’s ron, Daniel, and Joseph, U.S.S.G. Manual

3
§ 4A1.3 (2000). (2) The court departed or concurrent sentencing.3 During re-ar-
upward by four levels for extreme conduct, raignment, the court engaged Lyda in a
U.S.S.G. § 5K2.8. (3) The court imposed discussion about the scope of the waiver.
consecutive rather than concurrent sentences, After explaining that “you cannot appeal your
U.S.S.G. § 5G1.2(d). (4) The court departed sentence on any ground and you cannot appeal
upward by three levels for extreme any decision . . . concerning the guidelines
psychological injury, U.S.S.G. § 5K2.3. (5) applicable to your case,” the court immediately
The court departed upward by three levels for added that “you may appeal the sentence if I
use of a dangerous weapon, U.S.S.G. § 5K2.6. depart from the guideline range.”

III. The court did not describe the consecutive
We first must decide, as a threshold matter, sentences as either an enhancement under
whether Lyda has waived her right to appeal § 5G1.2(d) or an upward departure.4 This
the imposition of consecutive sentences.2 In court has refused to assume that a court
her plea agreement, she waived the right to imposed consecutive sentences as an
appeal any sentence within the guidelines enhancement rather than a departure. United
range but reserved the right to appeal any de- States v. Candelario-Cajero, 134 F.3d 1246,
parture from the guideline range. If we decide 1248-49 (5th Cir. 1998). Absent an
that imposing consecutive sentences is an en- explanation, we must presume that the district
hancement under U.S.S.G. § 5G1.2(d), the court imposed consecutive sentences as a
terms of the plea agreement may bar an appeal; departure. Further, the guidelines compelled
if we determine that imposing consecutive the court to impose consecutive sentences as
sentences is an upward departure, Lyda a departure, not an enhancement.
retains the right to appeal. Even if she waived
her right to appeal under the guidelines, she B.
may retain that right based on the guidelines’ The guidelines explain the conditions under
inconsistency with the ACA. which a sentence should be imposed con-
secutively or concurrently:
A.
The plea agreement waives Lyda’s right to (a) The sentence to be imposed on a
appeal on all grounds other than departures, count for which the statute (1) specifies
but it does not explicitly address consecutive
3
The plea agreement states: “Defendant
2
Although Texas state law governs whether voluntarily and knowingly waives her right to
Lyda waived her statutory right to concurrent appeal her conviction and the parties voluntarily
sentences, federal law determines whether she has and knowingly waive their rights to appeal the
preserved her right to appeal the sentence. Cf. sentence on any ground . . . . However, this waiver
United States v. Wertman, 485 F.2d 566, 567 (5th of rights does not extend to the parties’ rights to
Cir. 1973) (per curiam) (holding the federal courts appeal any departure from the Guideline range
follow federal sentencing procedures when deciding found by the district court.”
cases under the Assimilative Crimes Act). Because
4
federal procedural rules govern, they will determine The court found “it ha[d] the authority” to do
whether any procedural errors have caused Lyda to so under the Texas laws incorporated by the As-
sacrifice her right to appeal. similative Crimes Act.

4
 a term of imprisonment to be imposed level of “total punishment” would be an
and (2) requires that such term of upward departure.5
imprisonment be imposed to run
consecutively to any other term of Lyda argues that “total punishment” should
imprisonment shall be determined by be calculated based on the defendant’s criminal
that statute and imposed independently. history category and combined offense level.
She claims that the court should ignore
(b) Except as otherwise required by law upward departures when considering whether
. . ., the sentence imposed on each other to impose consecutive sentences under
count shall be the total punishment as § 5G1.2(d). According to Lyda, the court’s
determined in accordance with Part D of original range of 87 to 108 months’
Chapter Three, and Part C of this imprisonment should establish the “total
Chapter. punishment” under the guidelines.

(c) If the sentence imposed on the count The government argues that “total
carrying the highest statutory maximum punishment” should include the upward
is adequate to achieve the total departures for inadequate criminal history,
punishment, then the sentences on all psychological injury, using a weapon, and
counts shall run concurrently, except to egregious conduct. Four upward departures
the extent otherwise required by law. raised the offense level to 39 and the criminal
history category to III. This yields a guideline
(d) If the sentence imposed on the count range of 324-405 months.
carrying the highest statutory maximum
is less than the total punishment, then “Total punishment” should be calculated
the sentence imposed on one or more of “from the Guidelines Sentencing Table by
the other counts shall run consecutively, correlating the appropriate criminal history
but only to the extent necessary to category . . . with the defendant’s combined
produce a combined sentence equal to offense level.” United States v. King, 981
the total punishment. In all other F.2d 790, 797 (5th Cir. 1993). A close
respects, sentences on all counts shall reading of the guidelines’ text, structure, and
run concurrently, except to the extent commentary suggests that departures fall
otherwise required by law.
5
U.S.S.G. § 5G1.2. U.S.S.G. § 5G1.2(d) (labeling concurrent
sentences as the default); Candelario-Cajerol, 134
Section 5G1.2(d) instructs a court to F.3d at 1229; United States v. H.I., 83 F.3d 592,
593-94 (2d Cir. 1998) (“[T]he district court may
impose consecutive sentences as an
abjure the concurrent sentence paradigm set forth
enhancement only if the sentence derived from in § 5G1.2 . . . . Its decision to do so constitutes an
a single count cannot achieve the “total upward departure”); United States v. Quinones, 26
punishment.” The decision to impose F.3d 213, 215-17 (1st Cir. 1994) (same). Cf.
consecutive sentences up to the level of “total United States v. Martinez, 950 F.2d 222, 226 (5th
punishment” would be an enhancement. Cir. 1991) (permitting court to reject § 5D1.2(d)’s
Imposing consecutive sentences above the consecutive sentence requirement by departing
from the guidelines range).

5
outside of the guidelines range. The government points to three cases in
which courts casually have stated that upward
First, the guidelines provide an incomplete departures should be included in the “total
definition of “total punishment.” Section punishment” calculation.6 Each of these cases
5G1.2(b) specifies that “the sentence imposed mentions the issue only in passing, and none
on each other count shall be the total offers a reason for including upward
punishment as determined in accordance with departures in the “total puni shment”
Part D of Chapter 3, and Part C of this calculation.
Chapter.” Chapter 3, Part D describes the The text and structure of the guidelines
grouping rules for multiple counts. Chapter 5, leads us to conclude that U.S.S.G. §5G1.2's
Part C describes the procedures for imposing “total punishment” calculation excludes
a term of imprisonment. Neither chapter departures. The district court imposed
mentions departures. consecutive sentences as an upward departure,
so Lyda retains the right to appeal.
Second, the official commentary to § 5G1.2
explains that “total punishment is determined IV.
by the adjusted combined offense level.” When one commits non-federal crimes on
Determining the offense level differs from federal property within a state’s territorial jur-
determining the overall prison sentence; the isdiction, the United States can prosecute him
offense level excludes offender characteristics for violations of state law under the ACA.
and departures “on other grounds.” U.S.S.G. The act requires federal courts to find the de-
pt. H & intro. cmt (offender characteristics); fendant guilty of a “like offense” and to im-
U.S.S.G. pt. K (policy statements about other pose a “like punishment.” 18 U.S.C. § 13.7
grounds for departures). By defining total
punishment with reference to the “combined
offense level,” the guidelines exclude the 6
United States v. Hernandez Coplin, 24 F.3d
consideration of departures from “total 312, 318 n.6 (1st Cir. 1994) (dictum); United
punishment.” States v. Griggs, 47 F.3d 827, 831-32 (6th Cir.
1995) (quoting dictum from Hernandez Coplin);
Finally, the general application principles Kikumura v. United States, 978 F. Supp. 563, 584
for the guidelines distinguish between (D.N.J. 1997) (upholding consecutive sentences
determining the guidelines range and the imposed up to level of “total punishment” that
cumulative prison sentence. U.S.S.G. § included upward departure).
1B1.1(h)-(i). The courts do not consider the 7
departures contained in Chapter 5, Parts H and The relevant portion of the statute reads:
K to determine the guidelines range; they
Whoever within or upon any of the places
consider departures only to establish the
now existing or hereafter reserved or
overall prison sentence. Id. These structural acquired as provided in Section 7 of this
features have led courts to conclude that title, or on, above, or below any portion of
“Departures . . . are sentences imposed outside the territorial sea of the United States not
the Guidelines.” United States v. Joetzki, 952 within the jurisdiction of any State,
F.2d 1090, 1097 (9th Cir. 1991). Commonwealth, territory, possession or
district is guilty of any act or omission
(continued...)

6
Lyda pleaded guilty to violations of the ACA (5th Cir. 1988), we considered whether district
and the incorporated Texas Penal Code courts can impose a federally mandated special
§§ 22.04 and 22.041, which prohibit injuring assessment for each count of misdemeanor
or endangering children. The district court theft prosecuted under Texas Penal Code
then had an obligation to impose a “like § 32.03. We explained that the ACA “assim-
punishment.” ilat[es] the entire substantive criminal law of
the state wherein the federal enclave is located,
Lyda argues that the court violated that ‘including the laws . . . governing the manner
obligation by imposing a thirty-two-year con- in which an offense is to be punished.’” Id. at
secutive sentence, when Texas law permitted 96 (internal citations omitted). The federal
only a ten-year concurrent sentence. Although special assessment, by its own terms, applied
this court has never directly addressed the to all federal statutes, including the ACA; the
question in the context of concurrent and con- court emphasized, however, that the ACA’s
secutive sentencing, the best reading of our requirement that individuals be “subject to a
jurisprudence and cases from the other courts like punishment” establishes an overriding
of appeals requires the district court to cap exception to federal sentencing statutes. Id. at
Lyda’s sentence at ten years. 96-97.

A. We described the appropriate inquiry as
We review a challenge to the application of whether the defendant would face a penalty
the sentencing guidelines under the ACA de “like” the federal special assessment under
novo.8 In a series of three cases, we have ex- Texas state law. Id. at 97. “Like” implies sim-
plained the ACA’s requirement that district ilarity, and courts should consider the facts of
courts impose “like punishments.” each case and relevant federal policy
considerations when determining that
In United States v. Davis, 845 F.2d 94, 95 similarity. Id. at 98-99. Federal courts had
rejected state laws requiring minimum periods
of incarceration before parole, because these
7
(...continued) laws might interfere with the functioning of the
which, although not made punishable by any (now-defunct) federal parole system. Id. at
enactment of Congress, would be punishable 99.9 We determined that special assessments
if committed or omitted within the did not implicate such weighty federal
jurisdiction of the State, Territory, interests. Id. at 99.
Possession, or District in which such place
is situated, by the laws thereof in force at Because Texas permitted similar, but less
the time of such act or omission, shall be severe, assessments against criminal
guilty of a like offense and subject to a like defendants, we decided to cap the federal
punishment.

18 U.S.C. § 13.
9
The other federal courts of appeals uniformly
8
United States v. Marmelejo, 915 F.2d 981, refuse to incorporate state laws determining parole
984 (5th Cir. 1990) (treating it as a question of eligibility. See, e.g., United States v. Pierce, 75
statutory interpretation); United States v. Teran, F.3d 173, 177 (4th Cir. 1996); United States v.
845 F.2d 94, 96-97 (5th Cir. 1988) (same). Smith, 574 F.2d 988, 992 (9th Cir. 1978).

7
assessments at the level set by state law. Id. as a misdemeanor punishable by up to two
This compromise ensured similarity with state years in prison; federal law gives magistrate
punishments while preserving the goals of the judges jurisdiction only over offenses
federal assessment statute. Id.10 We expressly punishable by imprisonment for up to a year.
reserved the question whether a federal court Id. at 834. We held that the ACA did not
can impose a stricter sentence than does state require the assimilation of the maximum
law.11 punishment under state law, because the prison
terms did not differ significantly, and federal
In United States v. Marmolejo, 915 F.2d courts have a strong interest in the ability to
981, 981 (5th Cir. 1990), the defendant plead- classify criminal cases as felonies or
ed guilty to a charge of cashing bad checks misdemeanors. Id. at 834-35.
and was sentenced to six months’
imprisonment and a year of supervised release. Federal courts of appeals unanimously
We held that the ACA’s “like” requirement agree that state sentencing ranges should set
limits the range of punishment to the minimum the minimum and maximum length for federal
and maximum sentences provided by state law. prison sentences.12 The logical extension of
Id. at 984. Within that range, the sentencing
guidelines will determine the length of the pri-
12
soner’s sentence. Id. Because Texas law pro- Most circuits have addressed the question.
vided for up to ten years’ imprisonment and See United States v. Vaughan, 682 F.2d 290, 294
parole, we held that the federal sentence sat- (2d Cir. 1982) (“It is a well established principle
isfied the ACA’s “like” requirement. Id. at that a state statute that fixes the length of a prison
term should control the sentence imposed by fed-
984-85.
eral courts under the Act.”); United States v.
Queensborough, 227 F.3d 149, 160 (3d Cir. 2000)
Finally, in United States v. Teran, 98 F.3d (“Courts have interpreted ‘like punishment’ to
831, 835 (5th Cir. 1996), we held that a state’s mean that state law sets the minimum and
maximum penalties cannot deprive a maximum punishment while the federal sentencing
magistrate judge o f jurisdiction under the guidelines should be used to determine the actual
ACA. A magistrate judge found the defendant sentence within that range.”), cert. denied, 531
guilty of driving while intoxicated on a military U.S. 1131 (2001); United States v. Young, 916
base. Id. at 833. State law classified the DWI F.2d 147, 150 (4th Cir. 1990) (“[T]he ‘like
punishment’ requirement of the [ACA] mandates
that federal court sentences for assimilated crimes
10 must fall within the minimum and maximum terms
The Fourth Circuit reached the opposite
conclusion under the ACA when applying Mary- established by state law, and that within this range
land law, because Maryland did not permit state of discr etion federal judges should apply the
courts to impose special assessments. United Sentencing Guidelines to the extent possible.”);
States v. King, 824 F.2d 313, 315-16 (4th Cir. Marmolejo, 915 F.2d at 984 (“The ACA therefore
1987). limits the range of punishment to the minimum and
maximum sentences provided by state law.”);
11
Davis, 845 F.2d at 99 n.4 (“[W]e intimate no United States v. Davenport, 131 F.3d 604, 610
opinion as to whether a federal court under the (7th Cir. 1997) (same); United States v. Norquay,
authority of the ACA may impose a stricter cus- 905 F.2d 1157, 1161 (8th Cir. 1990) (“We
todial sentence than that mandated by state law interpret the Major Crimes Act to require only that
strictly on the basis of federal policy concerns.”). (continued...)

8
this rule is that a federal court cannot triple the might be merely procedural.15 The
length of the state prison sentence, even if it government fails, however, to explain why
does so through consecutive sentencing rather these distinctions should make a difference. A
than by ignoring a state statutory maximum. close look at the cases in other jurisdictions
confirms that the ACA caps Lyda’s prison
Although conceding that state law limits the sentence at ten years.
maximum and minimum punishments available,
the government offers countless reasons to In an analogous case, the Second Circuit
distinguish concurrent sentencing laws from held that federal courts must apply state
statutory minimums and maximumsSSthe ACA mandatory minimums for recidivist burglars.
only requires “like” punishment,13 the Vaughan, 682 F.2d at 292. The New York
concurrent sentencing law is codified in the Penal Code had a separate provision increasing
“Introductory Provisions” of the Texas Penal the sentence for the second violent felony
Code,14 and the concurrent sentencing law conviction; the court held that the district
court had correctly applied this mandatory
minimum. Id. This suggests that federal
courts should consider all provisions of state
law that affect the length of the sentence.
12
(...continued) Only the Ninth Circuit has squarely
the sentence imposed for burglary fall within the addressed the issue under the ACA. In United
minimum, if any, and maximum sentence States v. Leake, 908 F.2d 550, 552 (9th Cir.
established by state law . . . . Within that range, 1990), the court considered whether California
the sentence should be calculated according to the law limiting the length of consecutive
Federal Sentencing Guidelines.”) (citations
sentences would bind a federal court applying
omitted); United States v. Leake, 980 F.2d 550,
the ACA.16 The court declared the imposition
551 (9th Cir. 1990) (same); United States v.
Garcia, 893 F.2d 250, 254 (10th Cir. 1989) of consecutive sentences consistent with state
(holding that the ACA “requires courts to impose law, but it did consider state law binding. Id.
sentences for assimilative crimes that fall within By contrast, the court endorsed the traditional
the maximum and minimum terms established by rule that federal courts can ignore state parole
state law”); United States v. Gaskell, 134 F.3d
1039, 1045 (11th Cir. 1998) (“We leave intact the
15
established rule that a term of incarceration under Tex. Penal Code § 3.03 causes a substantive
the ACA cannot exceed the limits set by change in the length of the defendants confinement,
assimilated state law.”). as in the instant case by the drastic effect on the
sentence. The government fails to offer persuasive
13
This opinion and every court decision cited reasons to consider the statute procedural or a test
assumes this unremarkable legal standard. for sorting substantive and procedural state
sentencing laws.
14
The Fourth Circuit has rejected the argument
16
that the location of the law in the code should The Ninth Circuit has issued a subsequent
affect a court’s willingness to apply it under the opinion consistent with this, holding that state laws
ACA. United States v. Price, 812 F.2d 174, 175- regulating sentence enhancements trump the
76 (4th Cir. 1987) (refusing to consider publication guidelines in any conflict. United States v. Hooka-
in code of criminal procedure). no, 957 F.2d 714, 716 (9th Cir. 1992).

9
eligibility requirements when handing out sen- the district court had erred by applying state
tences under the ACA. Id.17 law regulating concurrent versus consecutive
sentences, instead of U.S.S.G. § 5G1.2. Id. at
The Eighth Circuit has interpreted the In- 1162. The court explained that the Major
dian Major Crimes Act as requiring district Crimes Act does not require the courts to
courts to follow the sentencing guidelines, follow “every last nuance of a sentence that
rather than state law, when choosing between would be imposed in state court.” Id. (citing
consecutive and concurrent sentences. Nor- Garcia, 893 F.2d at 254, which interpreted the
quay, 905 F.2d at 116218 The court held that ACA). The court analogized consecutive
sentencing laws to state regulations of parole
eligibility, which federal courts routinely ig-
17
In an ambiguous decision, the Fourth Circuit
nore under the ACA, id., and explained its
used the sentencing guidelines to determine whether concern that application of state law regulating
sentences under the ACA should run concurrently consecutive versus concurrent sentencing
or consecutively. United States v. Young, 916 “would be disruptive to the federal prison
F.2d 147, 151, 152 (4th Cir. 1990). The court system,” id. at 1163.
began by embracing the established rule that state
law should define the maximum and minimum The decision whether to assimilate the Tex-
prison terms under the ACA. Id. at 150-51. The as concurrent sentencing law should turn on
court vacated the sentences that exceeded state the relative persuasiveness of Leake and Nor-
maximums and remanded and provided sentencing quay. In other words, it should hinge on
instructions in dictum. Id. The court directed the whether, as the government asserts, § 5G1.2
district court to use U.S.S.G. § 5G1.2(d) when protects an important federal interest of the
determining whether to impose a consecutive or
type usually recognized under the ACA.
concurrent sentence. Id. at 152. Although the
There are two possible federal interests:
opinion does not mention the interaction between
the sentencing guidelines and state laws regulating
concurrent sentences, the decision suggests that The Norquay court, 905 F.2d at 1162, cited
federal district courts might apply, as a default the federal interest in controlling the prison
rule, the guidelines’ regulations for imposing system, but its rationale is unpersuasive for
consecutive sentences. three reasons. First, the court considered con-
current sentencing requirements and good be-
18
The offense at issue was burglary, which havior credits for time served in the same sec-
federal law does not define or punish. Norquay, tion of its analysis. Id. at 1162-63. Good be-
905 F.2d at 1159. In those cases, the statute havior credits obviously relate to the internal
directed at the time: operations of the prison, but the overall length
of the sentence is affected by a state’s
Any offense . . . not defined and punished by
statutory maximums as well as its concurrent
Federal law in force within the exclusive
jurisdiction of the United States shall be
sentencing laws. The court conflated the
defined and punished in accordance with the discussion of two laws that have very different
laws of the State in which such offense was implications for the internal operations of a
committed as are in force at the time of such
offense.
18
(...continued)
(continued...) Id. at 1160 n.6 (quoting 18 U.S.C. § 1151).

10
federal prison. would be practically eliminated.20

Second, under the facts of Norquay, the Texas law mandates concurrent sentences.
defendant would have been forced to serve a Texas’s choice to limit the length of all
federal sentence in state prison if they had run concurrent sentences deserves as much
concurrently. Id. at 1163. The United States deference as does a choice to set the statutory
may have an interest in applying federal cor- maximum for an individual crime.21 To give
rectional policies when a prisoner serves a full effect to the ACA, we must cap Lyda’s
federal sentence. Finally, the court failed to consecutive sentences at ten years.
explain how the application of state law on
concurrent sentences would interfere with the B.
operation of federal prisons. Without a The district court and the parties agree that
convincing explanation, we will further the Tex. Penal Code § 3.03 would require the sen-
usual policies of the ACA. tences to run concurrently.22 The controversy

In the instant case, the government argues
that we should promote its interest in 20
The government argues that through the plea
uniformly applying federal law. This argument bargain, Lyda voluntarily waived the applicability
has several flaws: First, as the Tenth Circuit of state sentencing law. The government does not
noted, it is impossible to promote intrastate cite any authority for the proposition that a
uniformity by applying state sentences while criminal defendant has the power to waive the right
simultaneously preserving interstate to be tried under state law. Indeed, it would be odd
uniformity. Garcia, 893 F.2d at 253-54. The if a plea bargain could materially alter the terms of
ACA represents a deliberate choice to promote a federal statute that chooses the applicable law in
a manner designed to promote systemic interests.
intrastate uniformity above interstate
uniformity when a defendant commits a crime, 21
It is difficult to imagine Texas’s setting its
otherwise punishable by state law, on federal criminal penalties for individual sentences without
land. Id. regard to the concurrent/consecutive sentencing
rules. A state that has lenient penalties for
Second, the government’s proposed individual crimes but many similar individual
exception would swallow the rule created by crimes could increase average prison sentence
the ACA. Congress passed the ACA to ensure length by using consecutive sentencing. A state
that state laws, rather than federal laws, will that has stiff penalties for individual crimes and
determine the length of sentences when a con- few overlapping crimes could eschew the
flict arises.19 If the courts relaxed this rule consecutive sentencing and achieve the same
whenever the sentences conflict, the ACA average prison sentence length. Texas chose to
adopt concurrent sentencing in the context of its
sentences for individual crimes. Incorporating
sentences for individual crimes while ignoring the
concurrent/consecutive choice risks undoing the
deliberate policy choices of the state legislature.
19 22
See, e.g., United States v. Sharpnack, 355 Texas Penal Code § 3.03(a) provides in
U.S. 286, 291 (1958); United States v. Collazo, pertinent part:
117 F.3d 793, 794 (5th Cir. 1995). (continued...)

11
centers on whether, by accepting the plea bar- three reasons, Lyda’s oral statement of
gain, Lyda waived her statutory right to con- understanding should not suffice to waive her
current sentences. The district court and par- statutory rights:
ties rely on Ex Parte McJunkins, 954 S.W.2d
39 (Tex. Crim. App. 1997), to define the ele- First, the McJunkins court specifically pre-
ments of waiver. served LaPorte v. State, 840 S.W.2d 412, 414
(Tex. Crim. App. 1992), which had construed
In McJunkins, the defendant pleaded guilty narrowly the waiver of the right to concurrent
to two informations charging him with murder sentences after a jury trial. McJunkins, 954
with a deadly weapon and aggravated robbery; S.W.2d at 41. Under the rule of LaPorte, a
in exchange, the government recommended defendant, to preserve the issue for appeal,
that he serve two consecutive sentences of life need not demand separate trials or object at
imprisonment. Id. The court classified the trial to the improper cumulation of sentences;
right to concurrent sentencing as an individual if the state chooses to consolidate the charges
right that the defendant may waive, just as he in a single trial, the defendant retains his stat-
can waive the right to separate jury trials. Id. utory right to concurrent sentences, even if he
at 41. The court emphasized that the plea does not raise the issue at trial. Id. Expressly
agreement specified consecutive sentences. Id. carving out this exception suggests that the
Court of Criminal Appeals will permit a de-
Lyda’s written plea agreement did not fendant expressly to waive his right to appeal
mention consecutive sentences. At the plea but will not imply such a waiver lightly.
colloquy, the court informed her that she po-
tentially could face consecutive sentences. For Second, a Texas court of appeals recently
refused to extend McJunkins to a passive
waiver of the statutory right to concurrent
22
(...continued) sentences. In Worthington v. State, 38 S.W.3d
When the accused is found guilty of more 815, 819 (Tex. App.SSHouston [14th Dist.]
than one offense arising out of the same 2001), vacated on other grounds, Nos. 0558-
criminal episode prosecuted in a single 01, 0559-01, 2001 Tex. Crim. App. LEXIS 65
criminal action, a sentence for each offense (Tex. Crim. App. Sept. 12, 2001), a trial court
for which he has been found guilty shall be improperly cumulated burglary sentences. The
pronounced. Except as provided by state argued that by failing to object to the
Subsection (b), the sentences shall run cumulation order at trial, the defendant had
consecutively. waived the right to concurrent sentences. Id.
The court refused to interpret the failure to
Texas Penal Code § 3.01 defines a “criminal object as a knowing, voluntary, and intelligent
episode,” irrespective of the number of victims, as:
waiver. Id. at 820. This decision suggests
(1)[ ] offenses [ ] committed pursuant to the
that passively responding during a plea
same transaction or pursuant to two or more colloquy is not proof enough of a knowing and
transactions that are connected or constitute intelligent waiver; Texas courts would require
a common scheme or plan; or that the waiver appear in writing.

(2) [ ] offenses [that] are the repeated Third, the plea colloquy merely ensures that
commission of the same or similar offenses.

12
the defendant understands the “maximum
possible penalty” he faces under a plea.23 In-
formation about the maximum possible
sentence should not bar the defendant from
appealing upward departures. Indeed, during
the colloquy, the prosecutor told the court that
Lyda would have the right to appeal the thirty-
two-year sentence.

V.
Lyda does not appeal the upward
departures for criminal history, U.S.S.G. §
4A.1.3, and extreme conduct, U.S.S.G. §
5K2.8, which increased her criminal history
level to category III and her offense level to
33, yielding a guideline range of at least
fourteen years’ imprisonment. Because the
ACA and Texas law cap her sentence at ten
years, she cannot receive the minimum
sentence under the guidelines.

The district court should use the upward
departures for criminal history and egregious
conduct to justify sentencing Lyda to the stat-
utory maximum of ten years. We need not
consider the validity of the upward departures
for extreme psychological injury and use of a
dangerous instrumentality, because the ACA
prevents the court from further increasing the
sentence.

The judgment of sentence is VACATED,
and this matter is REMANDED for resentenc-
ing in accordance with this opinion.

23
FED. R. CRIM. P. 11(c)(1); see also United
States v. Meyers, 150 F.3d 459, 464 n.8 (5th Cir.
1998).

13