United States v. Gaskell

United States Court of Appeals,
Eleventh Circuit.
No. 97-4216.
UNITED STATES of America, Plaintiff-Appellee,
v.
Diane M. GASKELL, Defendant-Appellant.
Feb. 2, 1998.
Appeal from the United States District Court for the Southern District of Florida. (No. 94-10011-
CR-SH), Shelby Highsmith, Judge.
Before DUBINA and BARKETT, Circuit Judges, and HILL, Senior Circuit Judge.
DUBINA, Circuit Judge:
This sentencing appeal presents the question of whether a federal judge in a case governed
by the Assimilated Crimes Act ("ACA"), 18 U.S.C. §§ 13 and 7, is permitted to sentence a defendant
to a longer term of probation than state law would permit. Although this and other circuits have
decided analogous issues under the ACA, no circuit court has ruled on this exact question. We hold
that federal judges sentencing under the ACA may exceed the 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.
I. FACTUAL BACKGROUND
In 1987, Diane Gaskell ("Diane") had a son, John Doe ("Doe").1 Diane married Robert
Gaskell ("Robert") in 1989, and the couple moved with Doe, Diane's child from a previous
relationship, to the naval base in Key West, Florida, where Robert was an enlisted serviceman in the
1
To protect the identity of Diane Gaskell's minor son, we will refer to him as John Doe.
U.S. Navy. At the time of the marriage, Diane was pregnant with the couple's child, Kristin Michelle
Gaskell ("Kristin"). After living in Key West for several months, Robert and Diane took Doe, then
two-and-one-half years old, to the emergency room at Florida Keys Hospital in Key West for a rash
on his neck and forehead. The admitting physician noted that Doe had extensive bruising on his
cheek, under his eyes, and throughout his body, including his hip and genital area. The pediatrician
suspected sexual and physical abuse based on Doe's injuries and his vocabulary of sexually explicit
words. In response to questioning by the doctor, Diane stated that Doe had fallen to the floor from
his bed which was two feet above the floor. Robert was present but said nothing.
The hospital notified the child protection team of Florida's Department of Health and
Rehabilitative Services ("HRS"), and Doe was temporarily removed from the Gaskells' custody and
placed with foster parents. Once in foster care, Doe made statements to his caretakers and behaved
in a manner that indicated he had been physically and sexually abused. After less than a month in
foster care, Doe was returned to his parental home pursuant to a state court order.
On Doe's first day of school in January, 1990, his teacher noticed severe injuries to his penis
and notified HRS. HRS again removed Doe from the Gaskell residence. After a hearing, Diane was
found to be an unfit mother, and Doe was permanently removed from the Gaskell household. He
has since been legally adopted, and the Gaskells were ordered by the court to have no contact with
him.
Dr. David L. Corwin ("Dr. Corwin"), Director of the Program on Childhood Victimization
and the Law and Director of Child Forensic Psychiatry at the University of Cincinnati, examined
Doe and reviewed his medical and psychological history. Dr. Corwin found that Doe was the victim
of traumatizing physical, sexual, and psychological child abuse and that he had been maltreated by
Diane and Robert.
Thereafter, Diane and Robert were indicted by a federal grand jury in the Southern District
of Florida charging them with three counts of child abuse at the U.S. Naval Air Station in Key West.
Counts I and II charged the Gaskells with inflicting physical and mental injury on Doe in violation
of Florida Statutes §§ 827.04(1) and 777.011. Count III charged the Gaskells with inflicting
physical injury on Kristin. Diane and Robert were charged with the state offenses in Counts I
through III under the ACA, 18 U.S.C. §§ 13 and 7. Count IV charged Robert alone with involuntary
manslaughter in causing the death of Kristin, in violation of 18 U.S.C. § 1112.2Diane agreed to waive indictment and plead guilty to a one count superseding information
which charged her with misdemeanor child abuse. Specifically, the superseding information states
that Diane, by culpable negligence, inflicted and permitted the infliction of physical injuries and
mental injury to Doe, in violation of §§ 827.04(2) and 777.011 of the Florida Statutes, made
applicable to places within the special territorial jurisdiction of the United States by the ACA, 18
U.S.C. §§ 13 and 7.
II. SENTENCING
At sentencing, Diane Gaskell made several objections, including an objection to the length
of the probationary term permitted under federal law in this case. The district judge determined that
Diane's offense level was six with a criminal history category of I, such that the federal Sentencing
Guidelines imprisonment range was zero to six months. Because Diane's offense of conviction is
a Class A misdemeanor, the authorized term of probation under federal law is not more than five
2
Kristin died on February 10, 1990, while home alone with Robert. Kristin's autopsy report
concluded that she suffered from Whiplash Shaking Infant Syndrome and that she died from
internal head trauma. Robert's initial conviction after a jury trial for the involuntary
manslaughter of Kristin was reversed based on error in the admission of evidence and an
incorrect jury instruction. United States v. Gaskell, 985 F.2d 1056 (11th Cir.1993). The original
indictment was dismissed without prejudice, and a new indictment issued. Robert pled guilty to
Counts I and IV of the instant indictment. His sentence is presently on appeal.
years. See 18 U.S.C. § 3561(c)(2). However, under Florida law, the maximum term of incarceration
allowable for a first degree misdemeanor is one year, and the term of probation cannot exceed one
year. Fla.Stat.Ann. § 775.082(4)(a) (West 1992); Baldwin v. State, 558 So.2d 173, 174
(Fla.Dist.Ct.App.1990) (the term of probation cannot exceed the maximum sentence allowed under
the Florida Statutes); Williams v. State, 402 So.2d 537 (Fla.Dist.Ct.App.1981) (same).
The district court sentenced Diane to five years probation with certain special conditions.
The court required that Diane participate in a mental health treatment program, disclose the nature
of her conviction to her employer, and refrain from engaging in any occupation involving children.
Diane appeals the length of her probation. She contends that because Florida law would
have allowed a maximum of one year probation, her five-year probationary sentence violates the
ACA which requires that a federal defendant be "subject to a like punishment" to that which state
law would impose. 18 U.S.C. § 13.
III. ISSUE
Whether the district court erred in sentencing Diane to five years of probation for her
conviction under the ACA when the maximum term of probation available under state law was one
year.
IV. STANDARD OF REVIEW
The proper length of a sentence under the ACA is a question of law subject to de novo
review by this court. See James v. United States, 19 F.3d 1, 2 (11th Cir.1994) (stating that
interpretation of a sentencing statute is a question of law subject to de novo review); United States
v. Pompey, 17 F.3d 351, 353 (11th Cir.1994) ("The district court's interpretation of the sentencing
guidelines is subject to de novo review.").
V. DISCUSSION
Diane argues that the express terms of the ACA incorporate into federal law not only the
state offense and its elements, but also the punishment prescribed by state law. The ACA authorizes
federal courts to exercise jurisdiction over violations of state law that occur in the special maritime
or territorial jurisdiction of the United States if no federal statute proscribes such violations. 18
U.S.C. § 13. The ACA, as it read in 1989,3 provided:
Whoever within or upon any of the places now existing or hereafter reserved or
acquired as provided in section 7 of this title, is guilty of any act or omission which,
although not made punishable by any enactment of Congress, would be punishable if
committed or omitted within the jurisdiction of the State, Territory, Possession, or District
in which such place is situated, by the laws thereof in force at the time of such act or
omission, shall be guilty of a like offense and subject to a like punishment.
18 U.S.C. § 13(a) (emphasis added). Diane's position is that the ACA's "like punishment" language
requires a district court judge to sentence an ACA defendant within the sentence duration limits for
probation as well as incarceration.
Prosecution under the ACA is for enforcement of federal law assimilating a state statute, not
for enforcement of state law. United States v. Brown, 608 F.2d 551, 553 (5th Cir.1979).4 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." Id. (quoting United States v. Prejean, 494
F.2d 495, 496 (5th Cir.1974)). The government can turn to state law for prosecution only if no act
of Congress directly makes a defendant's conduct punishable. Id.Although no United States Court of Appeals has considered the question of whether a
3
The superseding information alleged that the criminal acts took place during 1989. Although
18 U.S.C. § 13 has been amended several times since 1989, the pertinent language relied upon
by Diane has not changed.
4
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981)(en banc), the Eleventh Circuit
Court of Appeals adopted as binding precedent the decisions of the former Fifth Circuit issued
before October 1, 1981.
sentence of probation under the ACA can exceed that allowed by state law, two district courts have
addressed this question, reaching opposite results. Diane relies on United States v. Peck, 762
F.Supp. 315 (D.Utah 1991), in which a federal magistrate sentenced the defendant to two years
probation, a $250 fine, community service, and a special assessment for driving with a suspended
license. Under Utah law, the maximum penalty was six months imprisonment and a $1,000 fine,
and probation for the violation automatically terminated after six months. Id. at 318 Peck violated
his probation and moved to terminate revocation proceedings on the ground that the alleged
probation violations occurred after the termination of the maximum six-month probation period
allowed by state law. Id. at 317.
The district court in Peck concluded that probation was punishment within the meaning of
the ACA's "like punishment" language and construed this language to mandate that a probationary
sentence under the ACA fall within the maximum and minimum terms permitted under state law.
762 F.Supp. at 318-19. In doing so, the district court relied on United States v. Press Publishing
Co., 219 U.S. 1, 31 S.Ct. 212, 55 L.Ed. 65 (1911) which stated that an assimilated crime may be
punished "only in the way and to the extent that it would have been punishable" in state court. Id.
at 10, 31 S.Ct. at 214.5 The court determined that it lacked subject matter jurisdiction over Peck and,
thus, could not revoke his probation, because he had already served over six months of the two-year
probationary sentence imposed by the magistrate while state law authorized only six months of
probation. Id. at 320.
The other district court addressing the same issue relied on an exception to the ACA's
5
The government's brief points out that the Supreme Court in Press Publishing, 219 U.S. at
10, 31 S.Ct. at 214 interpreted the ACA as it read before a 1909 amendment that inserted the
current "like punishment" language in place of a previous "same punishment" requirement. See
Ch. 321, § 289, 35 Stat. 1145, Mar. 4, 1909.
assimilation provisions for cases in which a state penal statute conflicts with an important federal
policy. United States v. Duncan, 724 F.Supp. 286, 287-88 (D.Del.1989). In Duncan, a magistrate
judge sentenced the defendant to 18 months probation for an assimilated state charge for
alcohol-related reckless driving. Under Delaware law, the maximum probationary sentence was 12
months. Id. at 287. After Duncan served 12 months of probation, the magistrate judge revoked his
probation and sentenced him to 30 days incarceration. The district court affirmed the validity of the
18 month sentence, stressing that the policies expressed in the federal probation law preempted the
conflicting state statute. Id. at 288. The Duncan court relied on the reasoning in several circuit
court opinions dealing with federal parole policies, applying them to the context of probation. Id.(citing United States v. Pinto, 755 F.2d 150, 154 (10th Cir.1985) (holding that a federal parole
statute preempted a state statute); United States v. Vaughan, 682 F.2d 290, 294-95 (2nd Cir.1982)
(same); United States v. Smith, 574 F.2d 988, 992 (9th Cir.1978) (same)).
Determination of parole terms is one of the areas in which courts have held that federal law
must preempt state law assimilated under the ACA to preserve federal sentencing policy. The
Second, Ninth, and Tenth Circuits have held that the ACA does not require a federal court to follow
state law concerning parole terms. In Vaughan, the Second Circuit reasoned that federal correctional
policies must govern the term of minimum confinement and parole eligibility to preserve the
correctional administration of federal prisons. 682 F.2d at 294 (explaining that state law in areas
such as good time credits would conflict with federal policies). Although the Vaughan court
maintained that federal courts must apply state law in determining the range of years for a sentence
of incarceration, it refused to bind federal courts to follow state law regarding minimum terms of
confinement. Id.; see also United States v. Pinto, 755 F.2d at 154 (adopting the rule and reasoning
of Vaughan); United States v. Smith, 574 F.2d at 992 (stating that application of state parole policy
would be disruptive to correctional administration).
In another departure from state sentencing law, the Fifth Circuit in United States v. Davis,
845 F.2d 94 (5th Cir.1988), held that a mandatory $50 special assessment under 18 U.S.C. § 3013should apply to an ACA defendant despite the conflict with a $15 special assessment required under
Texas law. The court reached this conclusion after determining that the special assessment was in
fact a punishment for purposes of analysis under the ACA's "like punishment" requirement. Id. at
98. The Fifth Circuit based its holding on a finding that the term "like" merely implies similarity
and "on the principle that state laws should be assimilated through the ACA in light of federal policy
concerns." Id. at 99 (emphasis added). But see United States v. King, 824 F.2d 313, 316-17 (4th
Cir.1987) (holding that application of federal assessment which conflicts with state law violates
ACA's "like punishment" limitation); United States v. Mayberry, 774 F.2d 1018, 1021 (10th
Cir.1985) (same).
In United States v. Teran, 98 F.3d 831, 835 (5th Cir.1996), the Fifth Circuit applied the
exception permitting federal courts to decline full assimilation of state law under the ACA when this
would conflict with federal policy in a case involving a challenge to a magistrate judge's jurisdiction.
The court rejected the defendant's argument that the ACA required classification of the underlying
offense as a felony because state law allowed a maximum penalty of two years for the charged
misdemeanor. Id. (following United States v. Kelly, 989 F.2d 162 (4th Cir.1993), in which the
Fourth Circuit relied on the ACA exception for conflicting federal policies to uphold a magistrate
judge's jurisdiction).
Of all of the analogous circuit court cases dealing with conflicting federal and state
sentencing rules, we conclude that those in the area of supervised release provide the strongest
support for the proposition that federal probation statutes must preempt conflicting state law when
necessary to preserve an important federal policy. In United States v. Burke, 113 F.3d 211 (11th
Cir.1997), this circuit upheld a sentence of one year of imprisonment followed by one year of
supervised release in an ACA case where state law provided for a one-year maximum term of
incarceration. In a brief per curiam opinion, the Burke court adopted the reasoning of the Fourth
Circuit in United States v. Pierce, 75 F.3d 173 (4th Cir.1996).
The court in Pierce found that although a term of imprisonment imposed for an assimilated
crime may not exceed the state law maximum, federal courts are not absolutely bound by state
sentencing requirements. Id. at 176. Pierce pled guilty and received a sentence of a one-year term
of probation. A magistrate judge revoked his probation for several violations and sentenced him to
30 days imprisonment followed by a one-year term of supervised release. The Fourth Circuit held
not only that the court could impose a term of supervised release despite its unavailability under
state law, but also that a term of incarceration plus supervised release that exceeded the state
maximum term of imprisonment did not violate the ACA. Id. at 177-78. The court explained its
reasoning:
[A] federal court will not adopt provisions of state law that conflict with federal sentencing
policy. If limited to the maximum term of imprisonment permitted by the state, a district
court would be unable to impose an appropriate term of supervised release upon individuals
it determined to be in need of postincarceration supervision, even though the crime was
committed within an area of federal jurisdiction.
Id. at 178. Despite the fact that after revocation of Pierce's probation, the maximum sentence
allowable under state law was 60 days of incarceration, the court upheld the sentence of 30 days
imprisonment followed by one year of supervised release. Id.The Eighth circuit followed the holding of the Fourth Circuit in Pierce with regard to the
question of imposing a term of supervised release beyond the maximum sentence of incarceration.
United States v. Engelhorn, 122 F.3d 508, 512 (8th Cir.1997) (holding that under the ACA, a term
of incarceration and supervised release may exceed the maximum term of incarceration in an
assimilated state statute).
There are strong similarities between supervised release and probation. In United States v.
Reyes, 48 F.3d 435 (9th Cir.1995), the Ninth Circuit's comparison of probation and supervised
release led to a determination that federal supervised release and state probation were "like
punishment" under the ACA. The most significant distinction between the two sentencing options
"is that supervised release is a form of post-imprisonment supervision while probation is supervision
in lieu of incarceration." Id. at 438 (citation omitted) (involving a sentence of incarceration plus
supervised release which did not exceed the state law maximum term). However, "[i]n practice, the
similarities between the two forms of punishment are greater than the differences." Id. at 438. Both
probation and supervised release are discretionary and conditional, involve government supervision,
and make a person subject to incarceration upon revocation. Engelhorn, 122 F.3d at 512. In
addition, both serve the purpose of rehabilitation which furthers the protection of the public during
and after the term of government supervision. Id.Because of the strong similarities between probation and supervised release, we extend the
reasoning in Burke, Pierce, and Engelhorn to the context of probation and hold that federal
probation policy warrants an exception to the ACA's general requirement that a federal defendant
receive a sentence within the maximum and minimum terms set by assimilated state law. Burke, 113
F.3d 211 (upholding a sentence of incarceration plus supervised release that exceeds the state
maximum sentence term); Pierce, 75 F.3d at 177-78 (stressing that exceeding the state law term was
necessary to protect federal sentencing policy); Engelhorn, 122 F.3d at 512 (same). In this case,
the sentencing judge sought to provide Diane much needed supervision, in addition to ensuring that
the special probationary conditions imposed would be achieved. The court mandated that Diane
receive mental health counseling as directed by the probation office and that she refrain from
engaging in any employment involving young children. Those goals could not meaningfully be
effectuated during the course of the one-year term of probation permitted under Florida law. When
assimilated state law provisions conflict with federal policy, federal policy controls. Pierce, 75 F.3d
at 177.
The present case is a clear example of a case in which a federal judge sentencing under the
ACA needed to depart from state law to preserve the policies behind the federal probation statutes,
18 U.S.C. §§ 3561-66.6 See Duncan, 724 F.Supp. at 288. A child was severely abused within the
territorial jurisdiction of the federal government. Although the district court could have imposed
a term of incarceration of up to six months under the federal Sentencing Guidelines, it chose instead
to impose a lengthy probationary term to further the important federal policies at stake. The district
court took into account the fact that at the time of sentencing, Diane had two other young children.
A primary purpose of probation is "rehabilitation, the accomplishment of which will serve to protect
the public." Engelhorn, 122 F.3d at 512 (quoting State v. Cummings, 262 N.W.2d 56, 61
6
Our holding is consistent with a 1990 amendment to 18 U.S.C. § 3551(a), a provision of the
Sentencing Reform Act of 1984. As amended, the statute reads:
(a) In general.—Except as otherwise specifically provided, a defendant who has
been found guilty of an offense described in any Federal statute, including
sections 13 [the ACA] and 1153 of this title, other than an Act of Congress
applicable exclusively in the District of Columbia or the Uniform Code of
Military Justice, 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.
The underlined portion of the provision was added in 1990 and appears to indicate
congressional intent to preempt conflicting state correctional law in ACA cases. We are
unable to rely on this amendment in deciding this case because it became effective after
the relevant conduct for this case had taken place. Nonetheless, it bolsters our decision.
(S.D.1978)). The five-year probationary sentence attempts to ensure the safety of any children with
whom Diane might come into contact, including her own, by requiring her to obtain needed
counseling and restricting her from employment involving young children.
Moreover, probation allows the government to oversee Diane's rehabilitation and gives the
federal court the authority to revoke her probation and sentence her to incarceration if she violates
any of the stated conditions. 18 U.S.C. § 3565. The cases upholding a term of supervised release
beyond the maximum sentence allowed under state law would support a sentence of incarceration
if Diane's probation were revoked, despite the fact that her probationary period exceeded that
permitted under state law. See, Engelhorn, 122 F.3d at 512; Burke, 113 F.3d at 211; and Pierce,
75 F.3d at 177-78. If a federal court revokes supervised release, it has the power to sentence the
individual to additional incarceration. See United States v. Proctor, 127 F.3d 1311, 1313 (11th
Cir.1997). Similarly, if Diane were to violate the conditions of her probation, a court could revoke
it and sentence her to a term of incarceration within the limits set by Florida law.
Finally, our holding merely permits federal judges the flexibility to impose a term of
probation in excess of what state law would permit. We leave intact the established rule that a term
of incarceration under the ACA cannot exceed the limits set by assimilated state law. See Vaughan,
682 F.2d at 294 (stating that "[i]t is a well established principle that a state statute that fixes the
length of a prison term should control the sentence imposed by federal courts" under the ACA.);
United States v. Garcia, 893 F.2d 250, 254 (10th Cir.1989) (explaining that a federal court must stay
within maximum and minimum term, but is not required to "duplicate every nuance" of state
sentencing law).
VI. CONCLUSION
The district court determined correctly that the Florida law providing for a one-year
maximum term of probation conflicted with the policies behind the federal probation statute. The
sentencing judge could not have given effect to the federal policies of supervision and rehabilitation
without exceeding the one-year limit for probation under state law. Pursuant to the exception to the
ACA's "like punishment" requirement for cases in which assimilated state law conflicts with federal
policy, we affirm Diane's sentence.
AFFIRMED.
BARKETT, Circuit Judge, specially concurring:
I concur because I believe this case is controlled by our precedent in United States v. Burke,
113 F.3d 211 (11th Cir.1997). However, I share some of the same reservations expressed by Judge
Hill.
HILL, Senior Circuit Judge, specially concurring:
I concur because:
(1) In United States v. Burke, 113 F.3d 211, our court adopted the reasoning of the Fourth Circuit
(per J. Wilkins) in United States v. Pierce, 75 F.3d 173 which aligns us with the approach
taken by the district judge in the case, and
(2) the district court did, in sentencing, what ought to have been done for the good of the public, the
victims and the defendant.
Yet, I am less than satisfied that, in doing the right thing here, we are doing what we should
do. Florida law is "assimilated" into federal law in this case. The district judge found Florida law
inadequate to the task before him. He did what federal judges have done in these "assimilated" cases
with inadequate state law in the past—the state law is found to be in "... conflict with federal
sentencing policy," so it is dis-assimilated, so to speak, and replaced. Perhaps the Congress meant
for this to be the law. See footnote 5 of our opinion. I hope so.