United States v. Chapman , 839 F.3d 1232 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH October 24, 2016
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee/Cross-
Appellant,
Nos. 15-2143 & 15-2173
v.
LESLIE CHAPMAN,
Defendant - Appellant/Cross-
Appellee.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:14-CR-01065-JB-1)
_________________________________
Marc H. Robert, Assistant Federal Public Defender, Office of the Federal Public
Defender, Albuquerque, New Mexico, for Defendant-Appellant-Cross-Appellee.
Dean Tuckman, Assistant United States Attorney (Damon P. Martinez, United States
Attorney, and William J. Pflugrath, Assistant United States Attorney, on the briefs),
Office of the United States Attorney, Albuquerque, New Mexico for Plaintiff-Appellee-
Cross-Appellant.
_________________________________
Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
These direct criminal cross-appeals stem from a physical altercation between
Defendant Leslie Chapman (“Chapman”) and his then-wife, D.V. The altercation
0F
occurred in Veterans Administration (“VA”) housing where the couple was staying
while Chapman recuperated from surgery. As a result of the altercation, the United
States charged Chapman, under the federal Assimilative Crimes Act (“ACA”), 18
U.S.C. § 13, with committing the New Mexico offense of aggravated assault on a
household member, and a jury convicted him of that offense.
In appeal No. 15-2143, Chapman challenges the district court’s decision to
permit the Government’s expert witness, Gail Starr, a certified sexual assault nurse
examiner, to testify at trial that D.V.’s conduct in scratching herself across the chest
after the altercation was consistent with conduct exhibited by sexual assault and
domestic abuse victims to cope with the trauma they have experienced. The
Government presented Starr’s testimony to counter Chapman’s argument that D.V.
scratched herself instead to fabricate evidence against him. We conclude the district
court did not abuse its discretion in admitting Starr’s testimony.
In appeal No. 15-2173, the Government challenges Chapman’s sentence.
Under the ACA, a federal court is to impose a punishment “like” that available under
state law. Consistent with this ACA directive, the district court properly imposed the
statutory maximum term of probation and maximum fine available under New
Mexico law, rather than the greater terms of probation and fines available under
federal law. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b),
therefore, we AFFIRM Chapman’s conviction and sentence.
2
I. BACKGROUND
Viewed in the light most favorable to the jury’s verdict, see United States v.
Jim, 786 F.3d 802, 804-05 (10th Cir.), cert. denied, 136 S. Ct. 348 (2015), the
evidence presented at trial established the following: Chapman, now a civilian, had
surgery to correct injuries to his nasal cavities suffered during his service in the Air
Force. After the surgery, Chapman and D.V. stayed in VA housing in Albuquerque,
New Mexico, for several days while Chapman recuperated before returning home to
Abilene, Texas.
Three days after surgery, a physical altercation occurred between Chapman
and D.V. Each accused the other of being the aggressor. According to Chapman,
D.V. sucker-punched him with a closed fist to his surgically repaired face, punched
him in the ribs, where surgeons had removed cartilage to implant into his nose, and
then kicked him in the groin. D.V., on the other hand, testified that Chapman refused
to allow her to leave their quarters by grabbing and holding her against her will. He
also hit her several times. Although D.V. stated that she took a swing at Chapman to
get away from him, he ducked and she did not land the punch.
After the altercation, Chapman had a scratch on his cheek. D.V. had a broken
index finger on her right hand and a small cut on her right palm, as well as bruises on
her arm, back, sides, and foot. Photographs of D.V. taken by VA police officers right
after the altercation revealed no scratches on her chest. But photographs taken four
hours later showed obvious scratches. D.V. told police that Chapman had inflicted
those scratches.
3
The United States initially charged Chapman under the ACA with two state
misdemeanor offenses—aggravated battery against a household member, in violation
of N.M. Stat. §§ 30-3-16(B) and 31-19-1(A), and interference with communications,
in violation of N.M. Stat. §§ 30-12-1(D) and 31-19-1(A)—as well as the federal
offense of possessing a firearm on VA property, in violation of 38 C.F.R.
§ 1.218(a)(13). The two New Mexico misdemeanor charges were offenses
assimilated into the federal code because they occurred on VA property. See 18
U.S.C. § 13. The Government later dismissed the third count, and tried the remaining
two assimilated charges to a jury. The jury convicted Chapman of aggravated battery
of a household member, but acquitted him of the interference-with-communications
offense. The district court determined that its sentencing options for the aggravated
battery conviction were limited to those provided by state law and sentenced
Chapman to the maximum one-year term of probation provided by New Mexico law
and the state’s maximum fine of $1,000. 1 1F
II. DISCUSSION
A. The district court did not abuse its discretion in admitting Nurse Starr’s
expert testimony
Prior to trial, the defense pointed out to the Government that in the photos
taken of D.V. right after the altercation, there were no scratches on her chest, but in
1
On appeal, the parties agree that they incorrectly informed the district court at
sentencing that the maximum term of probation provided by New Mexico law was
one year when, in fact, New Mexico provided up to two years’ probation. The
Government does not challenge that error on appeal.
4
photos taken four hours later, there were obvious scratches. When prosecutors asked
D.V. about the scratches, she stated that she must have caused them.
Nine days before trial was set to begin, the Government notified Chapman, see
Fed. R. Crim. P. 16(a)(1)(G), that it intended to offer expert testimony from Gail
Starr, a certified sexual assault nurse examiner, that, in her experience, victims of
sexual assault or domestic violence often injure themselves as a mechanism to cope
with trauma when the victim’s usual coping mechanisms are unavailable. Chapman
objected to Starr giving this testimony and asked for a Daubert 2 hearing. The court
2F
held a hearing the next day (one week before trial was scheduled to begin); during
that hearing the district court heard the Government’s proffer as to what Nurse
Starr’s testimony would be (Starr herself was not available at that time).
The court then ruled that Nurse Starr could not testify about a condition called
non-suicidal self-injury, because that condition applies only when an individual has
self-inflicted injuries on at least five occasions during a year’s time and there was no
indication that D.V. had ever previously injured herself. But the court held that
Nurse Starr could testify that a single trauma could be so severe that a person could
injure herself once, as a coping mechanism to deal with that trauma. The court then
granted Chapman’s request for a thirty-day continuance so that the defense could
obtain its own expert to challenge or rebut Starr’s testimony. The defense obtained
an expert, but did not present his testimony at trial. Chapman renewed his objection
2
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
5
to Starr’s testimony, both just prior to and at trial. The court overruled each of those
objections.
During trial, D.V. testified that originally she thought that Chapman had
scratched her chest during the altercation but acknowledged that, because the
scratches were present only in the later photos, “they had to be self-inflicted.” (IV R.
480.) Nevertheless, she did not remember when or why she scratched herself. On
cross-examination, D.V. admitted that when she spoke with police after the
altercation, she told them Chapman had scratched her chest because “I did not know
that I had caused those scratches.” (Id. 506.) Through cross-examination, the
defense suggested that D.V. had scratched herself to fabricate evidence against
Chapman.
Nurse Starr then testified to the following: In her experience, it was “fairly
normal” for people involved in trauma or under great stress to cause injury to
themselves, and not to recall having done so. (Id. 538.) The self-injury could “be a
one-time deal,” “a way of coping with a lot of stress, hopelessness, depression,” “a
coping mechanism, a way of calming yourself down, making yourself feel better. It’s
not a healthy one.” (Id. 542.) Starr further cited and discussed articles that supported
her testimony. In Starr’s opinion, D.V.’s actions in scratching herself were
consistent with being a victim of domestic violence. Starr, however, further testified
that, although she had seen the photographs of D.V. and read the police reports of the
altercation, Starr had never met D.V., had not evaluated her, nor could Starr testify as
to what actually happened between Chapman and D.V. According to Starr, there are
6
many reasons why someone might injure herself, including using self-inflicted
injuries to accuse someone falsely of domestic violence. Starr had no idea why D.V.
had scratched herself.
At the conclusion of trial, the district court, without objection from the parties,
instructed the jurors:
During the trial you heard the testimony of a government expert,
who expressed opinions concerning possible reasons persons inflict
injuries on themselves. In some cases, such as this one, scientific,
technical, or other specialized knowledge may assist the jury in
understanding the evidence or in determining a fact in issue. A witness
who has knowledge, skill, experience, training or education, may testify
and state an opinion concerning such matters.
You are not required to accept such an opinion. You should
consider opinion testimony just as you consider other testimony in this
trial. Give opinion testimony as much weight as you think it deserves,
considering the education and experience of the witness, the soundness
of the reasons given for the opinion, and other evidence in the trial.
(I R. 245.)
On appeal, Chapman challenges the district court’s decision to admit Nurse
Starr’s testimony on several grounds.
1. The district court did not abuse its discretion in determining that
Nurse Starr’s testimony was admissible under Fed. R. Evid. 702
The district court permitted Nurse Starr to testify as an expert under Fed. R.
Evid. 702. Where, as here, the district court applied the proper Rule 702 standard,
we review the court’s decision to admit Nurse Starr’s expert testimony for an abuse
of discretion. See United States v. Medina-Copete, 757 F.3d 1092, 1100 (10th Cir.
2014). The district court abuses its discretion if the court’s decision “is arbitrary,
7
capricious, whimsical or manifestly unreasonable, or when we are convinced that the
district court made a clear error of judgment or exceeded the bounds of permissible
choice in the circumstances.” Id. at 1100-01 (internal quotation marks omitted).
Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reliably applied the principles and
methods to the facts of this case.
Fed. R. Evid. 702. Rule 702 requires the district court, before admitting expert
testimony, to ensure that testimony 1) has “a reliable basis in the knowledge and
experience of [the expert’s] discipline,” and 2) is “relevant to the task at hand.”
Daubert, 509 U.S at 592, 597; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137,
147 (1999) (holding Daubert’s inquiry “applies to all expert testimony”). Applying
this two-part inquiry, the district court did not abuse its discretion in permitting
Nurse Starr’s testimony. 3
3F
3
An initial question under Rule 702 is whether the proffered expert is qualified to
testify on the topic for which her testimony is offered. See Fed. R. Evid. 702 (“A
witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if . . . .”); see also
8
a. Reliability
In determining whether proffered expert testimony is reliable, Rule
702(d) directs the district court to consider 1) whether “the testimony is based
on sufficient facts or data”; 2) whether it “is the product of reliable principles
and methods”; and 3) whether “the expert has reliably applied the principles
and methods to the facts of this case.” Fed. R. Evid. 702(b)-(d). On appeal,
Chapman asserts that Starr’s testimony was not reliable because she never met
D.V., nor did Starr ever examine or evaluate her. We reject this argument.
“An expert may base an opinion on facts or data in the case that the expert has
been made aware of or personally observed.” Fed. R. Evid. 703 (emphasis
added). “Unlike an ordinary witness, see Rule 701, an expert is permitted
wide latitude to offer opinions, including those that are not based on firsthand
knowledge or observation. See Rules 702 and 703.” Daubert, 509 U.S. at 592;
see United States v. Lauder, 409 F.3d 1254, 1264 & n.5 (10th Cir. 2005)
(“Daubert generally does not . . . regulate the underlying facts or data that an
expert relies on when forming her opinion.”).
United States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc). In this
case, the district court determined that “Starr is qualified to testify about self-harm
and self-injury, and how it arises in the context of traumatic stress and domestic
abuse.” (I R. 184.) Chapman does not challenge that determination on appeal. The
record indicates, among other things, that Starr had been a certified sexual assault
nurse examiner for seven years, had seen over 400 patients during that time, also
dealt with domestic violence while working in trauma units for ten years; and, prior
to becoming a nurse, worked as a mental health tech for seven years with patients
“having an acute crisis” (IV R. 526-27).
9
Moreover, during her testimony, Nurse Starr acknowledged that she had not
personally evaluated D.V. and opined only that D.V’s scratching herself was
consistent with conduct exhibited by victims of domestic violence and sexual assault
as a mechanism to cope with their stress. Nurse Starr did not testify that D.V. was a
victim of domestic violence nor that that was the reason she scratched herself. Cf.
United States v. Charley, 189 F.3d 1251, 1256, 1264 (10th Cir. 1999) (upholding
admission of opinion of expert who had interviewed purported child victims “that the
evidence is consistent or inconsistent with the victim’s allegations of child abuse, and
allowing [the expert] to inform the jury of characteristics in sexually abused children
and describe the characteristics the alleged victim exhibits”) (internal quotation
marks omitted).
b. Relevance
Rule 702(a) provides that expert testimony may be admissible if it “will help
the trier of fact to understand the evidence or determine a fact in issue.” “This
condition goes primarily to relevance.” Daubert, 509 U.S. at 591. “‘Relevant
evidence’ is defined as that which has ‘any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.’” Id. at 587 (quoting Fed. R. Evid.
401). In this case, the district court did not abuse its discretion in holding that Starr’s
testimony—“that victims of domestic abuse engage in self-injury as a coping
mechanism and that [D.V’s] actions are consistent with this phenomenon”—was
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relevant to a material question in this case: “why [D.V.] scratched herself[.]” (I R.
187.)
Chapman challenges the district court’s ruling, arguing that, because it is
undisputed that D.V. scratched herself after the altercation, Nurse Starr’s testimony
about why victims of domestic abuse might injure themselves did not bear on a
material fact. But whether D.V. acted consistently with being a domestic violence
victim was material to the critical question at issue at trial of whether she or
Chapman was the aggressor during their altercation. Moreover, Chapman made the
question of why D.V. scratched herself a material fact by arguing that D.V. had
scratched herself in order to fabricate evidence against Chapman, perhaps trying to
cover up that she was the aggressor instead of him. Thus, Nurse Starr’s opinion that
D.V.’s conduct in scratching herself after the altercation was consistent with her
being a victim of domestic violence was relevant because it bore on material facts
disputed at trial.
Chapman further contends that Nurse Starr’s testimony was not relevant
because the Government sought to use it to bolster D.V.’s credibility, and expert
testimony regarding a witness’s credibility is not appropriate. See Charley, 189 F.3d
at 1267 (“In general, expert testimony which does nothing but vouch for the
credibility of another witness encroaches upon the jury’s vital and exclusive function
to make credibility determinations, and therefore does not ‘assist the trier of fact’ as
required by Rule 702.”). The district court did not abuse its discretion in rejecting
this argument. In permitting Nurse Starr to testify, the district court ruled that she
11
could not testify that D.V. was telling the truth, nor that D.V. was not the aggressor,
but only that D.V.’s conduct in scratching herself was consistent with that of a
domestic abuse victim using self-injury as a coping mechanism. As the district court
noted, such testimony did not directly bolster D.V.’s explanation of why she
scratched herself because D.V. testified that “[s]he does not know why she scratched
herself.” (I R. 188.)4
c. Manner in which district court conducted Rule 702 analysis
Before admitting expert testimony, the district court must conduct Rule 702’s
analysis and, if the opposing party raised an objection, the district court “must
adequately demonstrate by specific findings on the record that it has performed its”
Rule 702 gatekeeping obligations. United States v. Avitia-Guillen, 680 F.3d 1253,
1256 (10th Cir. 2012) (internal quotation marks omitted). But the manner in which
the court conducts its Rule 702 analysis is left to the court’s sound discretion. See id.“Tenth Circuit case law does not mandate that a hearing be held.” United States v.
Nacchio, 555 F.3d 1234, 1251, 1253-54 (10th Cir. 2009) (en banc). In this case, the
trial court did conduct a hearing, but the expert was not available to testify or be
cross-examined. Chapman contends that the district court abused its discretion in
ruling that part of Nurse Starr’s expert testimony was admissible without having Starr
available for questioning. We disagree.
4
On appeal, Chapman also asserts, in a conclusory manner, that the district court
abused its discretion in permitting Nurse Starr to testify as to an ultimate issue of
fact. “We need not address unsupported, conclusory arguments.” Az. Pub. Serv. Co.
v. EPA, 562 F.3d 1116, 1130 (10th Cir. 2009). In any event, that argument lacks
merit.
12
The Government gave notice of its intent to present Nurse Starr’s expert
testimony just a few days before trial was set to begin. Under those circumstances,
the district court did not abuse its discretion in holding a hearing and relying on the
Government’s proffer of what Starr’s testimony would be. Based on that proffer, the
court ruled that Starr could testify, but the court did so without prejudice to Chapman
later challenging her testimony again, after Chapman had more time to research
Starr’s opinion and to obtain an expert witness of his own. The court further ruled
that, should Nurse Starr offer testimony that differed from the Government’s pretrial
proffer, the court would reconsider whether Starr could testify. Chapman never
presented the court with any further information challenging the admissibility of
Nurse Starr’s testimony, and Starr testified at trial consistent with the Government’s
pretrial proffer of her opinion. Furthermore, Chapman has not shown how he could
have better developed his Daubert challenge to Starr’s testimony if Chapman had had
an earlier opportunity to question Starr. See United States v. Allen, 603 F.3d 1202,
1212 (10th Cir. 2010). We cannot conclude, therefore, that the district court abused
its discretion in initially ruling that Nurse Starr could testify without hearing her
testimony at the pretrial Daubert hearing.
2. The district court did not abuse its discretion in admitting Nurse
Starr’s testimony under Fed. R. Evid. 403
Chapman next contends that, even if Nurse Starr’s testimony was admissible
under Rule 702, the district court abused its discretion in admitting her testimony
13
because its “probative value” was “substantially outweighed by a danger of . . . unfair
prejudice” or “confusing the issues,” Fed. R. Evid. 403.5 We disagree.
The Tenth Circuit affords district courts “considerable discretion in performing
Rule 403’s balancing test.” United States v. Tenorio, 809 F.3d 1126, 1130 (10th Cir.
2015). Here, as discussed above, Starr’s testimony had significant probative value.
The likelihood of Starr’s testimony confusing the jurors was minimal. So, too, was
the possibility of “unfair prejudice,” meaning “an undue tendency to suggest decision
on an improper basis, commonly, though not necessarily, an emotional one,” United
States v. Rodella, 804 F.3d 1317, 1334 (10th Cir. 2015), petition for cert. filed, (U.S.
Mar. 16, 2016) (No. 15-1158). Further, the trial court ameliorated any unfair
prejudice or confusion by instructing jurors that they were not required to accept
Nurse Starr’s testimony, but should treat it as any other testimony and give it only the
weight jurors thought it deserved. Furthermore, the jury acquitted Chapman of one
of the two charged offenses, suggesting Starr’s testimony did not unfairly prejudice
Chapman. See United States v. Leonard, 439 F.3d 648, 652 (10th Cir. 2006) (finding
no unfair prejudice where jury convicted defendant on one of the charges).
3. Conclusion as to Nurse Starr’s expert testimony
For the foregoing reasons, the district court did not abuse its discretion in
admitting Nurse Starr’s expert testimony.
5
Rule 403 provides that “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.”
14
B. The district court did not err in using state, rather than federal, law to
determine the maximum term of probation and the maximum fine available
The Assimilative Crimes Act (“ACA”) provides, in pertinent part, that
[w]hoever . . . is guilty of any act or omission which, although not made
punishable by any enactment of Congress, would be punishable if
committed or omitted in the jurisdiction of the State, Territory, or
District in which such place is situated, by the laws therein in force at
the time of such act or omission, shall be guilty of a like offense and
subject to like punishment.
18 U.S.C. § 13 (emphasis added).
The purpose of the Assimilative Crimes Act is to provide a
method of punishing a crime committed on government reservations in
the way and to the extent that it would have been punishable if
committed within the surrounding jurisdiction. The Act fills in gaps in
federal criminal law by providing a set of criminal laws for federal
enclaves.
United States v. Garcia, 893 F.2d 250, 253 (10th Cir. 1989) (internal quotation marks
omitted).
At sentencing in this case, the district court ruled that the ACA required that
New Mexico, rather than federal, law provided the available range of probation and
fines. In light of that, the district court sentenced Chapman to what the parties
represented to the court as the maximum term of probation permitted under New
Mexico law—one year—even though federal law provides for up to five years’
probation for a misdemeanor, see 18 U.S.C. §§ 3559(a), 3561(c)(2). The district
court also imposed the maximum available fine under state law—$1,000, see N.M.
Stat. § 31-19-1(A)—even though federal law permitted a fine of up to $100,000, see
18 U.S.C. § 3571(b)(5).
15
1. The district court’s decision to use state law was consistent with the
ACA’s language and purpose
Reviewing de novo, see United States v. Gaskell, 134 F.3d 1039, 1041 (11th
Cir. 1998), we affirm the district court’s use of state law to determine Chapman’s
term of probation and fine. The ACA’s language expressly requires that a federal
offender receive a punishment “like” that available under state law for the same
offense. See 18 U.S.C. § 13(a). In light of that, federal circuits have unanimously
concluded that state statutes set the maximum and minimum range of imprisonment
available for an ACA offense. See United States v. Martinez, 274 F.3d 897, 906 &
n.12 (5th Cir. 2001) (citing, e.g., Garcia, 893 F.2d at 254 (10th Cir.)). Like
imprisonment, both probation and a fine are “punishments.” See United States v.
Bryant, 136 S. Ct. 1954, 1962 (2016) (referring to a fine as noncustodial
punishment); United States v. Knights, 534 U.S. 112, 119 (2001) (referring to
probation as punishment). See generally United States v. Mayberry, 774 F.2d 1018,
1020-21 (10th Cir. 1985) (giving “punishment” under the ACA “a broad and
inclusive meaning”).
The ACA’s language does not suggest that a sentencing court should treat
differing forms of punishment differently. Instead, we read the ACA to take a
holistic approach, requiring federal courts to look to state law to determine the range
of different forms of punishment available when sentencing an ACA offender. Doing
so serves the ACA’s purpose, “to provide a method of punishing a crime committed
on government reservations in the way and to the extent that it would have been
16
punishable if committed within the surrounding jurisdiction,” Garcia, 893 F.2d at 253(internal quotation marks omitted). We, therefore, affirm the district court’s decision
to use the probation and fine ranges provided by New Mexico law to sentence
Chapman. See United States v. Harris, 27 F.3d 111, 116 (4th Cir. 1994) (applying
state, rather than federal, law to determine fine available for an ACA offense).
2. 18 U.S.C. § 3551(a) does not require a different result
18 U.S.C. § 3551(a) provides, in pertinent part, that
[e]xcept as otherwise specifically provided, a defendant who has been
found guilty of an offense described in any Federal statute, including
sections 13 [the Assimilative Crimes Act] and 1153 [addressing
offenses committed in Indian country] of this title . . . shall be sentenced
in accordance with the provisions of this chapter so as to achieve the
purposes set forth in subparagraphs (A) through (D) of section
3553(a)(2) to the extent that they are applicable in light of all the
circumstances of the case.
(Emphasis added.) The purposes set forth in § 3553(a)(2) include the need for a
sentence
(A) to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; (B) to afford
adequate deterrence to criminal conduct; (C) to protect the public from
further crimes of the defendant; and (D) to provide the defendant with
needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner[.]
The Government contends that § 3551(a) requires sentencing courts to apply
federal rather than state statutes to determine an ACA offender’s probation and fine
ranges. More specifically, the Government asserts: State law establishes the
maximum and minimum terms of imprisonment available for an ACA offense. Based
on that range of imprisonment, the federal sentencing court must then classify the
17
offense of conviction, under 18 U.S.C. § 3559(a), as either an infraction, petty
offense, misdemeanor, or felony, and determine the appropriate degree of
misdemeanor or felony. The federal sentencing court must then use that federal
classification to establish the available ranges for probation and fines under federal
law.
There is no language in either the ACA or § 3551(a) to support the
Government’s argument for such a mechanism to determine the available range of
probation and fines for an ACA offender. In Garcia, this court read § 3551(a)
together with the ACA to hold that state law sets the maximum and minimum terms
of imprisonment, as the ACA requires, and then § 3551(a) requires the sentencing
court to apply the federal sentencing guidelines to impose a sentence within the range
set by state law. 893 F.2d at 253-54.6 But there is no directive that § 3551(a) further
requires a court sentencing an ACA offender to look to federal, rather than state law,
to impose a fine or probation.
6
The previous version of § 3551(a) at issue in Garcia did not expressly refer to the
ACA, as does the current version of § 3551(a), but instead applied to “a defendant
who has been found guilty of an offense described in any Federal statute.” 893 F.2d
at 253 (applying 18 U.S.C. § 3551(a) (1988)); see United States v. Thomas, 68 F.3d
392, 394 (10th Cir. 1995). But Congress’s 1990 amendment of § 3551(a) to add an
express reference to the ACA—“a defendant who has been found guilty of an offense
described in any Federal statute, including sections 13 and 1153 of this title”
(emphasis added)—merely clarified what we had already held in Garcia, that a
federal sentencing court should apply federal sentencing guidelines to impose
punishment for an ACA offense within the maximum and minimum ranges of
imprisonment established by state law. See Thomas, 68 F.3d at 394; United States v.
Nelson, No. 98-2102, 1998 WL 658393, at *2 n.5 (10th Cir. Sept. 15, 1998)
(unpublished).
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3. Applying state law to set the range for probation and fines is not
contrary to federal sentencing policy
A federal sentencing court will decline to apply state law to sentence an ACA
offender if doing so violates federal penal policy. See United States v. Christie, 717
F.3d 1156, 1172 (10th Cir. 2013). This court has previously applied this rule—an
exception to the ACA’s mandate to impose a punishment “like” that available for the
same offense under state law—to sentencing provisions that conflict with explicit
federal law.
[F]or example, we do not require district courts to follow state parole
policies given Congress’s express abolition of parole in the federal
system. See United States v. Pinto, 755 F.2d 150, 154 (10th Cir. 1985).
Neither may federal courts ignore congressionally mandated sentencing
guidelines in favor of state sentencing guidelines. See Garcia, 893 F.2d
at 254. And federal courts cannot impose the death penalty relying on
state law when doing so would upset Congress’s judgment about when
capital punishment is and is not warranted. See Lewis[v. United States],
523 U.S. [155,] 170 [(1998)].
Christie, 717 F.3d at 1172; see also United States v. Sain, 795 F.2d 888, 890-91 (10th
Cir. 1986) (holding federal court was not required to provide jury trial for ACA
offense when federal law did not permit it, but state law did).
Here, on appeal, the Government vaguely suggests that the district court’s
decision to look to state law to set the range for probation and fines was contrary to
federal penal policy. But the Government fails to identify any such federal penal
policy, and we can find none.
The Eleventh Circuit has held that, under the circumstances presented in
United States v. Gaskell, “federal judges sentencing under the ACA may exceed the
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state statutory maximum term for a sentence of probation when necessary to
effectuate the policies behind the federal probation statutes, 18 U.S.C. §§ 3561-66.”
134 F.3d at 1040. In reaching that conclusion, the Eleventh Circuit relied on cases
declining to apply state parole laws to an ACA offender because those state laws
contradicted the federal penal policy abolishing parole; those cases instead imposed a
term of federal supervised release on ACA offenders, in lieu of parole. Id. at 1043-
44.7
Unlike parole, however, the federal penal system has not abolished probation.
In fact, both federal and state law provides for a term of probation for Chapman’s
offense, as well as the imposition of a fine. So, unlike imposing parole contrary to
the federal system’s abolition of parole, imposing probation or a fine does not
directly contradict any federal penal policy, at least none that the Government
identifies. In summary, we decline to follow Gaskell and hold, instead, that with the
Assimilative Crimes Act, a federal sentencing court imposing a fine and probation is
limited to any state limits applicable to the crime of conviction.
For these reasons, then, we affirm the district court’s use of New Mexico law
to impose a term of probation and a fine because doing so was consistent with the
7
The analogy the Eleventh Circuit drew between parole, supervised release, and
probation is not perfect. Parole, like supervised release, provides for post-
incarceration supervision. But probation is often imposed instead of incarceration,
and therefore is arguably more analogous to a term of imprisonment. As previously
mentioned, federal circuits have unanimously concluded that state statutes set the
maximum and minimum range of imprisonment available for an ACA offense. See
Martinez, 274 F.3d at 906 (5th Cir.); see also Garcia, 893 F.2d at 254 (10th Cir.).
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ACA’s requirement that the punishment for a federal ACA offense be “like” the state
punishment for that same offense.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Chapman’s conviction and sentence.
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