United States v. Peeble , 375 F. App'x 288 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4900
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES S. PEEBLES,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:07-cr-00041-RLV-DCK-1)
Argued: January 27, 2010 Decided: March 19, 2010
Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.
Reversed and remanded with instructions by unpublished opinion.
Judge Duncan wrote the majority opinion, in which Judge Davis
concurred. Judge Wilkinson wrote a dissenting opinion.
ARGUED: David Grant Belser, BELSER & PARKE, Asheville, North
Carolina, for Appellant. Donald David Gast, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
ON BRIEF: Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:
This appeal arises from a prosecution under the
Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13. After pleading
guilty to the offense of aggravated speeding to elude arrest
under N.C. Gen. Stat. § 20-141.5, Appellant James Peebles
received a prison sentence of twelve months and one day.
Because his maximum sentence under North Carolina law would have
been eight months, we hold that the district court violated the
ACA by not imposing “like punishment.” 18 U.S.C. § 13.
Accordingly, we vacate Peebles’s sentence and remand for
resentencing. 1
I.
On September 9, 2007, in Alleghany County, North Carolina,
James Peebles raced down the Blue Ridge Parkway on his
1
We find it useful to stress the limits of our holding
today. We do not, as the dissent suggests, hold that the ACA
requires “identical” rather than like punishment or that
Peebles’s sentence must track what a North Carolina court would
have imposed. See Dis. Op. at 20 (denying that Peebles’s
“federal sentence should be limited to the individual sentence a
state judge would have imposed on him”). We merely adhere to
circuit precedent finding that the ACA precludes a prison term
outside the minimum and maximum that a state court could have
imposed. See United States v. Pierce, 75 F.3d 173, 176 (4th
Cir. 1996) (stating that under the ACA a defendant “may be
sentenced only in the way and to the extent that the person
could have been sentenced in state court” (internal quotations
omitted)). This does not offend federal sentencing guidelines,
which remain fully applicable within that range.
2
motorcycle, going well over the speed limit. When a National
Park Service Ranger tried to stop him, Peebles tried to escape
and caused a high speed chase. Using a “rolling road block,”
police eventually stopped and arrested him. J.A. 85.
Because this dangerous flight occurred within the special
territorial jurisdiction of the United States, Peebles was
prosecuted under the ACA. This statute assimilates into federal
law offenses that “would be punishable if committed . . . within
the jurisdiction of the State” in which the relevant federal
property is located. 18 U.S.C. § 13(a). Peebles was charged
with aggravated speeding to elude arrest under N.C. Gen. Stat.
§ 20-141.5, and he pleaded guilty. The district court sentenced
Peebles to twelve months and one day imprisonment, followed by
one year supervised release. This appeal followed.
II.
On appeal, Peebles argues that the district court violated
the ACA by imposing a sentence greater than North Carolina’s
statutory maximum. “The proper length of a sentence under the
ACA is a question of law subject to de novo review.” United
States v. Pate, 321 F.3d 1373, 1375 (11th Cir. 2003).
The ACA provides that a person who, within the territorial
jurisdiction of the United States, commits “any act . . . which,
although not made punishable by any enactment of Congress, would
3
be punishable if committed . . . within the jurisdiction of the
State . . . in which such place is situated . . . , shall be
guilty of a like offense and subject to a like punishment.” 18
U.S.C. § 13(a) (emphasis added). In light of circuit precedent
interpreting the highlighted phrase, the government concedes
that the ACA prohibited sentencing Peebles beyond North
Carolina’s statutory maximum sentence. Appellee’s Br. at 11-12.
See also Pierce, 75 F.3d at 176 (“[A] term of imprisonment
imposed for an assimilated crime may not exceed the maximum term
established by state law.”); United States v. Young, 916 F.2d
147, 150 (4th Cir. 1990) (“[T]he ‘like punishment’ requirement
of the Assimilative Crimes Act mandates that federal court
sentences for assimilated crimes must fall within the minimum
and maximum terms established by state law, and that within this
range of discretion federal judges should apply the Sentencing
Guidelines to the extent possible.”). The only disputed
question is how to calculate North Carolina’s statutory maximum
sentence. Peebles argues that it should be the highest sentence
that a state court could have imposed on him. Under our
precedent, we are constrained to agree.
Unlike most federal criminal statutes, section 20-141.5
defines aggravated speeding to elude arrest but does not specify
the maximum or minimum penalty. Rather, it merely labels the
offense “a Class H felony.” N.C. Gen. Stat. § 20-141.5(b).
4
Maximum penalties are codified elsewhere under the North
Carolina Structured Sentencing Act, N.C. Gen. Stat. § 15A-
1340.10 et seq. Under this regime, for any felony offense,
North Carolina courts have authority to sentence only within a
particular range determined by three variables: (1) the class of
offense, (2) the offender’s prior record level, and (3) whether
the sentence should be aggravated or mitigated beyond the
ordinary or “presumptive” sentence. See N.C. Gen. Stat. § 15A-
1340.13. The process proceeds as follows. First, courts
determine the prior record level by calculating the sum of
points assigned to each prior conviction according to section
15A-1340.14. Then they determine whether the sentence should be
aggravated or mitigated by considering sentencing factors under
section 15A-1340.16. At this stage, the government must prove
aggravating factors beyond a reasonable doubt.
The government does not dispute that Peebles would qualify
for prior record level I. The government also conceded during
oral argument that Peebles’s indictment contains insufficient
allegations to support aggravating his sentence. Therefore, the
highest sentence Peebles could have received under North
Carolina law would have been eight months. See N.C. Gen. Stat.
§ 15A-1340.17(c)-(d). Peebles’s presentence report reached the
same conclusion:
5
The defendant has zero criminal history points in
accordance with NCGS §15A-1340.14(b)(6) and thus a
prior record level of I. A Class H felony combined
with a level I prior record results in a presumptive
range of a minimum 4 months to a maximum 8 months
active imprisonment.
J.A. 93. Peebles thus concludes that North Carolina’s statutory
maximum sentence would be eight months. The government
contends, however, that the statutory maximum sentence should be
the highest sentence that could ever be imposed for the offense.
This would be thirty months, i.e., the highest aggravated
sentence authorized for someone with prior record level VI. See
N.C. Gen. Stat. § 15A-1340.17(c)-(d). The choice between these
approaches determines whether Peebles’s sentence of twelve
months and one day violated the ACA’s “like punishment”
requirement.
Given our precedent, we are constrained to adopt Peebles’s
contention. Pierce stated that “like punishment” under the ACA
means that “one who commits an act illegal under state law but
not prohibited by federal law in an area of federal jurisdiction
may be sentenced only in the way and to the extent that the
person could have been sentenced in state court.” 75 F.3d at
176 (internal quotations omitted) (emphasis added). This
language suggests that the district court’s sentence should not
have exceeded the maximum sentence that Peebles himself (rather
than any hypothetical defendant) could have received under North
6
Carolina law. See also United States v. McManus, 236 F. App’x
855, 856 (4th Cir. 2007) (considering N.C. Gen. Stat. § 15A-
1340.17 and concluding, “[w]e agree with McManus that . . . the
state maximum sentence was the maximum sentence that could have
been imposed on him by a state-court judge”).
This conclusion also comports with the congressional
purpose underlying the ACA and general principles of federalism.
Dating back to 1825, the ACA was designed to fill gaps created
where state criminal law became inapplicable because the federal
government had reserved or acquired land. The Supreme Court
explained further:
When the[] results of the statute are borne in mind,
it becomes manifest that Congress, in adopting it,
sedulously considered the twofold character of our
constitutional government, and had in view the
enlightened purpose, so far as the punishment of crime
was concerned, to interfere as little as might be with
the authority of the states on that subject over all
territory situated within their exterior boundaries,
and which hence would be subject to exclusive state
jurisdiction but for the existence of a United States
reservation. In accomplishing these purposes it is
apparent that the statute, instead of fixing by its
own terms the punishment for crimes committed on such
reservations which were not previously provided for by
a law of the United States, adopted and wrote in the
state law, with the single difference that the
offense, although punished as an offense against the
United States, was nevertheless punishable only in the
way and to the extent that it would have been
punishable if the territory embraced by the
reservation remained subject to the jurisdiction of
the state.
7
United States v. Press Publ’g Co., 219 U.S. 1, 9-10 (1911).
Here the Supreme Court made clear that the ACA was never
supposed to displace the outer limits on sentencing discretion
imposed by state law. This underscores Pierce’s implication
that a defendant being prosecuted under the ACA should not
receive a prison sentence that a state court would have lacked
authority to impose.
Our holding today also finds support in United States v.
Harris, 27 F.3d 111 (4th Cir. 1994). There, the defendant was
prosecuted under the ACA for driving while impaired under N.C.
Gen. Stat. § 20-138.1. This statute defined driving while
impaired but, rather than specify the authorized punishment,
provided that punishment should be imposed under N.C. Gen. Stat.
§ 20-179. Section 20-179 authorized different punishment levels
depending on whether various aggravating or mitigating
circumstances had been proved. Although counsel for both sides
agreed on the appropriate level, we nevertheless observed:
“Other subsections of § 20-179 authorize more severe punishment
than that permitted by subsection (k). But the government did
not prove the elements necessary to bring Harris within the
purview of the other subsections.” Id. at 116. Implicit in
that observation is the recognition that the government would
have had to present relevant evidence to support the maximum
sentence the provision would afford.
8
Given the structural similarity between section 20-179 and
section 15A-1340.17, Harris indicates that the ACA prohibits
sentencing Peebles beyond eight months unless the government had
established the elements necessary for the aggravated range or
Peebles’s record level had been greater. Because neither
occurred, Peebles’s actual sentence of twelve months and one day
was unlawful.
In sum, because North Carolina’s statutory maximum sentence
applicable to Peebles was eight months, the district court
violated the ACA’s “like punishment” requirement by sentencing
Peebles to twelve months and one day. Thus, we vacate Peebles’s
sentence and remand for resentencing consistent with this
opinion. 2
REVERSED AND REMANDED WITH INSTRUCTIONS
2
Peebles also challenges how the district court applied the
U.S. Sentencing Guidelines. The court applied section 2A2.4
upon finding it “sufficiently analogous” to Peebles’s crime of
aggravated speeding to elude arrest. U.S. Sentencing Guidelines
Manual § 2X5.1 [hereinafter “USSG”]. We decline to reach this
issue because, assuming we found error, the resulting benefit
would be trivial. See USSG § 5G1.1 (“Where the statutorily
authorized maximum sentence is less than the minimum of the
applicable guideline range, the statutorily authorized maximum
sentence shall be the guideline sentence.”). Furthermore, our
circuit precedent makes plain that the Guidelines by no means
trump the ACA’s “like punishment” requirement. See Young, 916
F.2d at 150 (“[T]he ‘like punishment’ requirement of the
Assimilative Crimes Act mandates that federal court sentences
for assimilated crimes must fall within the minimum and maximum
terms established by state law, and that within this range of
discretion federal judges should apply the Sentencing Guidelines
to the extent possible.”).
9
WILKINSON, Circuit Judge, dissenting:
I agree with the majority that an offense under the
Assimilative Crimes Act (ACA), 18 U.S.C. § 13, may be punished
only within the “the maximum term established by state law.”
U.S. v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996). My concern is
that Peebles’s novel interpretation of that well-established
principle disregards our precedent and creates a circuit split
by requiring federal courts to apply state sentencing guidelines
to individual defendants. The ACA requires only “like” -- not
“identical” -- punishment. Every other court that has
considered the interaction between federal and state sentencing
practices for ACA purposes has rightly recognized that while the
generic statutory ranges established by state substantive law
limit the permissible ACA punishment, federal courts need not
apply individualized state sentencing calculations. The
sentence imposed here was reasonable, respected the state
sentencing range for Class H felonies, and in no sense amounted
to an abuse of discretion on the part of the district court.
See Gall v. U.S., 552 U.S. 38 (2007). As a result, I
respectfully dissent. 1
1
In an opening footnote, see Maj. Op. at 2 n.1, my good
colleagues in the majority claim to uphold federal sentencing
practice within the state sentence range, but the majority’s
three month “range” is so constricted that federal practice
hardly applies. Contrary to the majority’s protestations,
(Continued)
10
I.
Even the twelve month and one day sentence that Peebles
would have us discard does not fully reflect the deadly nature
of his crime. Certainly the proffered maximum sentence of eight
months fails to do so in light of his potentially lethal
behavior. Peebles led police on a high speed chase after
refusing to pull over his motorcycle for traveling twenty miles
per hour over the speed limit. Reaching speeds above one
hundred miles per hour along the winding twists of the Blue
Ridge Parkway, he fled for some twenty-five miles. Travelers on
individualized state sentencing comes so close to impermissible
identicality as to render any distinction between the two
negligible. See infra Part II.C. Second, the majority declares
the maximum state sentence to be eight months, but that
declaration begs the question of what state sentence ranges
apply. Class H felonies are subject to a generic four to thirty
month range under North Carolina law, and it is that range and
that maximum, not individualized state procedures, that respects
Congress’s sentencing policy set forth in 18 U.S.C. § 3551(a).
See infra Part II.A. Finally, the majority argues that a
defendant “may be sentenced only in the way and to the extent
that the person could have been sentenced in state court.” U.S.
v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996). But immediately
after that language, Pierce emphasized that “like punishment
does not encompass every incident of a state’s sentencing
policy” and in fact affirmed the imposition of a federal term of
supervised release under the ACA instead of requiring state
probation. Id. at 176-77 (citation omitted). Nothing in Pierce
or our other precedent elevates individualized state sentencing
procedures above federal sentencing practice, see infra Part
II.C. In doing so, the majority transforms the ACA from a gap
filling statute into one of displacement, again in contravention
of Congress’s express intent in Section 3551(a). See infra
Parts II.A and B.
11
the scenic byway were forced off the road. Peebles passed more
than a dozen cars in no passing zones while narrowly missing
head on collisions with two separate vehicles. His mad dash did
not end until officers from the North Carolina Highway Patrol
and the Alleghany County Sheriff’s Department set up a rolling
roadblock. Even then, Peebles was only captured when his
motorcycle went off the road as he attempted to turn around to
avoid the roadblock and continue his flight. Something is wrong
when the twelve month and one day sentence of such a malefactor
is reduced to a mere eight month maximum. What is wrong is
appellant’s view of the ACA.
II.
Peebles claims the ACA’s “like punishment” clause, codified
in 18 U.S.C. § 13(a), requires us to follow state law right down
to the individualized, defendant-specific provisions of North
Carolina sentencing practice. But when we move from the generic
range that a hypothetical defendant could receive under state
law to the individualized North Carolina calculation that
Peebles demands, we come perilously close to replacing the ACA’s
“like punishment” requirement with one of “identical
punishment.” Peebles’s argument also ignores important guidance
from other federal statutes, the history of the ACA itself, and
the extensive caselaw of circuits across the country. The
12
better understanding of “like punishment” is that the ACA
directs federal courts to sentence within the generic range of
permissible state sentences that could be imposed on a
hypothetical defendant but to follow federal sentencing policy
so long as it consistent with that range.
A.
As an initial matter, the ACA’s “like punishment”
requirement must be interpreted in pari materia with 18 U.S.C.
§ 3551(a), which explains what types of sentences are authorized
in federal courts. That section indicates that “a defendant who
has been found guilty of an offense described in any Federal
statute, including sections 13 and 1153 of this title . . .
shall be sentenced in accordance with the provisions of this
[federal sentencing] chapter so as to achieve the purposes set
forth in [18 U.S.C. § 3553(a)(2)(A)-(D)]”. 18 U.S.C. § 3551(a)
(emphasis added). The emphasized reference to 18 U.S.C. § 13
(the ACA) was added by Congress in 1990 and makes explicit the
fact that federal sentencing procedures apply to ACA crimes.
See Pub. L. 101-647, § 1602, 104 Stat. 4789, 4843. Even before
Congress added this reference, courts had already recognized
that Section 3551(a) provides a statutory directive that federal
sentencing practices apply to assimilated crimes. U.S. v.
Marmolejo, 915 F.2d 981, 984 (5th Cir. 1990); U.S. v. Garcia,
13
893 F.2d 250, 253-54 (10th Cir. 1989). Section 3551(a) thus
gives the term “like punishment” a specific, limited meaning:
within the generic state sentencing range assimilated by the
ACA, federal sentencing policy determines the actual sentence.
See, e.g., U.S. v. Pierce, 75 F.3d 175, 176 (4th Cir. 1996).
B.
Further, the legislative history of the ACA itself
indicates that Peebles’s interpretation of the ACA’s “like
punishment” clause cannot be correct. Prior to 1909, the law
that became the ACA required defendants convicted of assimilated
crimes to “be liable to and receive the same punishment as the
laws of the state.” Ch. 576, § 2, 30 Stat. 717, July 7, 1898
(emphasis added). In 1909, however, the “same punishment”
requirement was replaced with the current ACA formulation of
“like punishment.” See Ch. 321, § 289, 35 Stat. 1145, Mar. 4,
1909. This switch undercuts Peebles’s assertion that federal
courts must apply individualized state sentencing procedures.
Now sentences need only be similar to what would be imposed in
state court. “The word ‘like’ in the current version of the ACA
thus implies similarity, not identity.” Marmolejo, 915 F.2d at
984. Peebles’s contrary position may have been good law during
Teddy Roosevelt’s administration, but for over a century
14
Congress has required only “like punishment,” which does not
require reference to individualized state sentencing procedures.
Additionally, the purpose of the ACA suggests that Peebles
mistakenly interprets the “like punishment” requirement. The
ACA exists to fill gaps in federal criminal law so that
wrongdoing on federal land can be punished even if Congress has
not thought to criminalize a specific act. See, e.g., U.S. v.
Gaskell, 134 F.3d 1039, 1042 (11th Cir. 1998) (“The purpose of
the ACA is to provide a body of criminal law for federal
enclaves by using the penal law of the local state to fill the
gaps in federal criminal law.”) (internal citations omitted);
Garcia, 893 F.2d at 253 (same). Because the purpose of the ACA
is gap filling, it is fair to infer that courts should only
assimilate state law to the extent that there is no
corresponding federal guidance. In the present case, there is
no federal law of aggravated speeding to elude arrest, and the
district court correctly assimilated that North Carolina crime.
However, there are comprehensive federal sentencing laws, and it
would be counterintuitive to overturn those federal procedures
by incorporating individualized state sentencing through a mere
gap filling measure.
15
C.
Peebles attempts to overcome the statutory obstacles of
text, history, and purpose by claiming that our prior
precedents, including United States v. Pierce, 75 F.3d 173 (4th
Cir. 1996), United States v. Harris, 27 F.3d 111 (4th Cir.
1994), and United States v. Young, 916 F.2d 147 (4th Cir. 1990),
suggest that “like punishment” requires individualized
sentencing based on state law. But those decisions actually
buttress what 18 U.S.C. 3551(a) and the history of the ACA
already make clear, indicating that the normal ACA practice is
to use federal, not state, sentencing procedures to the fullest
extent possible within the boundaries of assimilated substantive
state law. As Pierce explained, “state law may provide the
mandatory maximum or minimum sentence, but the federal
sentencing guidelines determine the sentence within these
limits.” 75 F.3d at 176. Indeed, we noted in Young that “[t]he
[Federal] Sentencing Reform Act and the [Federal] Sentencing
Guidelines adopted thereunder apply to assimilated crimes,”
explicitly rejecting claims that federal judges should apply
state sentencing practices to ACA offenses. 916 F.2d at 150.
If Peebles is correct that individualized state sentences are
required, he comes close to rendering the concept of “maximum or
minimum” sentences irrelevant. If he were arguing for a generic
state law range, I would agree that the ACA requires federal
16
courts to sentence within such boundaries. But he does not.
Peebles asks to be sentenced between an individualized “maximum”
of eight and an individualized “minimum” of five months. This
so-called three month “range” is so defendant-specific when
compared to the statutory four to thirty month range for a
hypothetical Class H felon that it is nearly meaningless.
Peebles’s argument also disregards the fact that we have
rejected requests to incorporate the trappings of individualized
state sentencing on previous occasions. We have recognized that
“[t]he phrase ‘like punishment’ . . . does not encompass every
incident of a state’s sentencing policy.” Harris, 27 F.3d at
115. Far from it. A federal court “will not assimilate a state
sentencing provision that conflicts with federal sentencing
policy.” Pierce, 75 F.3d at 176. In Pierce, we went so far as
to uphold a federal ACA sentence that included a term of
supervised release, even though North Carolina sentencing law
only provides for probation. Id. at 177. Even more
importantly, we affirmed despite the fact that the supervised
release term exceeded the maximum jail term allowed under state
law because “supervised release is not considered to be a part
of the incarceration portion of a sentence and therefore is not
limited by the statutory maximum term of incarceration.” Id. at
178. As a result, we declined to follow state probation rules
and instead gave full force to federal sentencing policy within
17
the ACA’s boundaries. Id. See also U.S. v. Engelhorn, 122 F.3d
508 (8th Cir. 1997) (same); U.S. v. Burke, 113 F.3d 211 (11th
Cir. 1997) (per curiam) (same).
Peebles thus invites us to pick and choose the portions of
state sentencing policy that we will now follow. Under Pierce,
federal supervised release trumps state probation rules, but
without questioning that earlier holding, Peebles now promotes
individualized state sentencing calculations over federal
sentencing policy. This approach can only result in complex,
arbitrary, pick-and-choose distinctions. To avoid this pitfall,
courts have two choices: rewrite the ACA’s statutory command of
“like punishment” to read “identical punishment” or recognize
that “like punishment” contemplates only that federal sentencing
policy applies within the state’s generic maximum and minimum
sentence range. Our case law correctly selects the latter
approach, and there is no reason to revisit that choice.
D.
Nor is our circuit an outlier. Our sister circuits also
recognize that federal -- rather than state -- sentencing
procedures apply when calculating individual ACA sentences.
See, e.g., U.S. v. Calbat, 266 F.3d 358, 362 (5th Cir. 2001)
(“Consequently, state law fixes the range of punishment, but the
Sentencing Guidelines determine the actual sentence within that
18
range.”) (internal citation omitted); U.S. v. Queensborough, 227
F.3d 149, 160 (3d Cir. 2000) (same); U.S. v. Gaskell, 134 F.3d
1039, 1043, 45 (11th Cir. 1998) (same); U.S. v. Leake, 908 F.2d
550, 552 (9th Cir. 1990) (same); U.S. v. Garcia, 893 F.2d 250,
251-52 (10th Cir. 1989) (same); see also U.S. v. Norquay, 905
F.2d 1157, 1161-62 (8th Cir. 1990) (same in interpreting
statutory provision similar to ACA). While many of the
decisions from this and other circuits predate United States v.
Booker, 543 U.S. 220 (2005), and its progeny, I do not think
their basic teaching about federal sentencing practices is
rendered in any way inapplicable by the fact that the Guidelines
are presently advisory. See Gall v. U.S., 552 U.S. 38 (2007).
If anything, the greater discretion now afforded district courts
in sentencing would seem inconsistent with the strict handcuffs
that Peebles would place upon them.
In addition to the widespread recognition that federal
sentencing procedures apply to ACA crimes, other circuits also
have taken the same approach as this court in declining to
require adherence to state probation rules. See Gaskell, 134
F.3d at 1043 (citing and discussing Second, Ninth, and Tenth
Circuit decisions). As the Ninth Circuit explained long ago,
“[t]o hold otherwise would be to have two classes of prisoners
serving in the federal prisons: Assimilative Crimes Act
prisoners and all other federal prisoners. That situation would
19
be disruptive to correctional administration, and we do not
think Congress intended this result.” U.S. v. Smith, 574 F.2d
988, 992 (9th Cir. 1978). The two-tiered system for which
Peebles argues cannot be what Congress intended, and “[e]fforts
to duplicate every last nuance of the sentence that would be
imposed in state court has never been required.” Garcia, 893
F.2d at 254.
III.
Peebles’s error is further exacerbated by his
misapprehension of the interaction between the ACA, 18 U.S.C.
§ 13, the assimilated crime of aggravated speeding to elude
arrest, N.C. Gen. Stat. § 20-141.5, and the North Carolina
structured sentencing statute, N.C. Gen. Stat. § 15A-1340.17.
Peebles claims his federal sentence should be limited to the
individual sentence a state judge would have imposed on him.
But the ACA does not incorporate North Carolina structured
sentencing. Instead it incorporates substantive offenses that
“would be punishable if committed . . . within the jurisdiction
of the State.” 18 U.S.C. § 13(a).
As the majority acknowledges, the typical federal criminal
statute specifies a maximum and a minimum penalty as part of the
statutory definition of the offense. When an assimilated
statute is structured similarly, the maximum and minimum ranges
20
apply, but federal courts are free to use federal sentencing
practices within those boundaries. See, e.g., Queensborough,
227 F.3d at 160 (twenty year federal sentence valid when
assimilated Virgin Islands law authorized ten years to life).
In such a situation, whatever sentencing guidance the state may
establish elsewhere is irrelevant for federal assimilation.
North Carolina law operates identically, though with less
clarity than is typical. The substantive law merely defines
Peebles’s aggravated speeding offense as a “Class H felony.”
N.C. Gen. Stat. § 20-141.5(b). The authorized sentence range is
then codified separately in tabular form. N.C. Gen. Stat.
§ 15A-1340.17(c) and (d). That table indicates that a Class H
felony can be punished by four to thirty months. See N.C. Gen.
Stat. § 15A-1340.17(c) and (d). North Carolina courts recognize
that this range establishes the authorized maximum sentence,
regardless of specific defendants’ individual characteristics.
See State v. Dewberry, 600 S.E.2d 866, 870 (N.C. App. 2004)
(“The maximum sentence for a Class H felony is 30 months.”);
State v. Bernard, No. COA07-1289, 2008 WL 1948022, at *6 (N.C.
App. May 6, 2008) (defendant considering self-representation
warned that “speeding to elude is a Class H felony carrying a
maximum punishment of 30 months.”). See also U.S. v. Jones, 195
F.3d 205, 207 (4th Cir. 1999) (“viewing the class maximum as the
21
statutory maximum for the crime appears to accord . . . with the
general practice in North Carolina courts”).
North Carolina also chose to codify its state sentencing
procedures in the same statute. This decision, however, does
not alter the fact that the resultant law performs two
independent and severable tasks. The first is to provide a
generic reference table that categorizes the range of authorized
penalties by felony class, in the case of a Class H felony up to
thirty months. In addition to this initial function, the
statute serves a secondary purpose of laying out the state’s
sentencing regime. While it is undisputed that Peebles would
have received a sentence between five and eight months if
sentenced under state sentencing guidelines in state court,
federal courts are not required to adopt the identical local
procedures in sentencing ACA defendants. The Class H felony
punishment of up to thirty months is what is assimilated by the
ACA, not every particular of state sentencing rules. See
Garcia, 893 F.2d at 254. 2
2
Nor does the majority’s contrary view do criminal
defendants any favors. In many instances state sentencing law
may provide for a harsher punishment than provided by federal
sentencing policies. For instance, North Carolina sentencing
procedures typically give judges unfettered discretion to decide
whether sentences imposed for multiple counts should run
concurrently or consecutively. See N.C. Gen. Stat. § 15A-1354.
In contrast, federal policy generally favors concurrent
sentences, albeit with some exceptions. See, e.g., U.S.S.G.
(Continued)
22
In short, Peebles asks us to create a North Carolina
anomaly that conflicts with the precedent of this and other
circuits. Under the ACA, Peebles is only entitled to “like
punishment,” and that is precisely what the district court’s
sentence provided. By focusing on the individualized elements
of state sentencing rules, appellant disregards the ACA’s
century-old “like punishment” requirement in favor of the “same
punishment” phrasing rejected by Congress in 1909. The ACA
“fills in gaps in federal criminal law.” Garcia, 893 F.2d at
253 (citation omitted). It is not intended to displace the
comprehensive federal sentencing practice with individualized
state sentencing procedures. Pierce, 75 F.3d at 176 (“a federal
court . . . will not assimilate a state sentencing provision
that conflicts with federal sentencing policy.”). And it
certainly is not intended to impair the basic prerogative of the
United States to ensure a modicum of public safety on federal
lands and parkways. Other courts have been able to accommodate
state sentencing ranges and this core federal concern, and I
respectfully dissent from the failure to follow their example.
§ 5G1.2 (guideline for sentencing on multiple counts of
conviction).
23