U.S. v. Garcia, 88-2557

• Decision Date: 29 December 1989
• Docket Number: No. 88-2557,88-2557
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerard Gary GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 250

893 F.2d 250

UNITED STATES of America, Plaintiff-Appellee, v. Gerard Gary GARCIA, Defendant-Appellant.

No. 88-2557.

United States Court of Appeals, Tenth Circuit.

Dec. 29, 1989.

Stephen P. McCue, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

Joe M. Romero, Jr., Asst. U.S. Atty. (William L. Lutz, U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before ANDERSON and EBEL, Circuit Judges, and RUSSELL, District Judge. ^*

EBEL, Circuit Judge.

This case requires us to consider whether the guidelines promulgated by the United States Sentencing Commission apply to violations of the Assimilative Crimes Act. ¹ We conclude that the sentencing guidelines apply to assimilative crimes, but that the sentence imposed may not exceed any maximum sentence and may not fall below any mandatory minimum sentence that is required under the law of the state in which the crimes occur. We further hold that the commentary to Sec. 2X5.1 of the sentencing guidelines, which "require[s]" courts to apply guidelines applicable to analogous federal crimes in determining sentences for assimilative crimes, has no legal effect to the extent that it exceeds the less-restrictive mandate of the Sentencing Reform Act of 1984 to give only "due regard" to analogous federal sentencing guidelines. Finally, we conclude that the district court's guidelines sentence in this case is permissible because it is within the range permitted under New Mexico law.

Facts

On December 7, 1987, defendant Gerard Gary Garcia, an American Indian, struck and killed an American Indian pedestrian while driving a pickup truck on the Acoma Pueblo Reservation. The accident was caused, at least in part, by defendant's use of alcohol. R. Vol. II at 9. Defendant pled guilty to the assimilative New Mexico crime of involuntary manslaughter, ² in violation of 18 U.S.C. Sec. 13 (1982). ³ Prior to the entry of his guilty plea, defendant filed a motion asking the court to declare unconstitutional the Sentencing Reform Act of 1984, as amended, 18 U.S.C. Secs. 3551-3586 (Supp. IV 1987) (current version at 18 U.S.C. Secs. 3551-3586 (1988)) & 28 U.S.C. Secs. 991-998 (Supp. IV 1987). R. Doc. 7. The district court granted the motion, concluding that the Sentencing Reform Act violated the constitutional principle of separation of powers and expressing an additional concern that the guidelines violated the Due Process Clause. R. Doc. 40. The district court then sentenced defendant to an 18-month prison term pursuant to the sentencing law in effect prior to the Sentencing Reform Act of 1984. However, the district court also imposed an alternative sentence pursuant to the Sentencing Reform Act, to take effect if the Act was found to be constitutional. The alternative sentence was a prison term of 18 months, plus one year of supervised release, during which defendant would be required to undergo rehabilitation for alcohol abuse. R. Doc. 41. Because the guidelines have been held to be constitutional, the alternative guidelines sentence is the sentence that must be applied against defendant. ⁴

Discussion

I. The Purposes of the Assimilative Crimes Act and the Sentencing Reform Act of 1984

The Assimilative Crimes Act applies to offenses committed on Indian reservations. United States v. Pinto, 755 F.2d 150, 154 (10th Cir.1985). "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. Sain, 795 F.2d 888, 890 (10th Cir.1986) (citation omitted). See also United States v. Sharpnack, 355 U.S. 286, 293, 78 S.Ct. 291, 295, 2 L.Ed.2d 282 (1958); James Stewart & Co. v. Sadrakula, 309 U.S. 94, 101, 60 S.Ct. 431, 434, 84 L.Ed. 596 (1940); United States v. Press Publishing Co., 219 U.S. 1, 10, 31 S.Ct. 212, 214, 55 L.Ed. 65 (1911).

The Sentencing Reform Act of 1984 was enacted to achieve greater uniformity in the sentencing of federal crimes. Its provisions "are designed to structure judicial sentencing discretion, eliminate indeterminate sentencing, phase out parole release, and make criminal sentencing fairer and more certain." S.Rep. No. 225, 98th Cong., 2d Sess. 65, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3248. The Sentencing Reform Act provides that "[e]xcept as otherwise specifically provided, a defendant who has been found guilty of an offense described in any Federal statute ... shall be sentenced in accordance with the provisions of this chapter." 18 U.S.C. Sec. 3551(a) (Supp. V 1987) (current version at 18 U.S.C. Sec. 3551(a) (1988)). In the case of assimilative crimes, it is difficult to achieve fully the Sentencing Reform Act's goal of federal sentencing uniformity because the punishments for particular state offenses often vary significantly among the states. Therefore, it is not always possible to achieve uniformity in federal sentences for similar assimilative crimes that are committed in different states, and, at the same time, promote the Assimilative Crime Act's goal of intrastate sentencing uniformity.

The guidelines adopted pursuant to the Sentencing Reform Act do not adequately take into account the tension between the two policies of federal sentencing uniformity and intrastate sentencing uniformity. The guidelines focus primarily on the goal of federal sentencing uniformity. The commentary to Sec. 2X5.1 of the guidelines provides that in the case of assimilative crimes, the court imposing the sentence "is required to determine if there is a sufficiently analogous offense guideline, and, if so, to apply the guideline that is most analogous." Although applying analogous federal guidelines in determining sentences for assimilative crimes promotes federal sentencing uniformity, it ignores entirely the objective of intrastate sentencing uniformity underlying the Assimilative Crimes Act.

Where two statutes are " ' "capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." ' " Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, 104 S.Ct. 2862, 2881, 81 L.Ed.2d 815 (1985) (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 133-34, 95 S.Ct. 335, 353-54, 42 L.Ed.2d 320 (1974) (quoting Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974))). See also 2A J. Sutherland, Statutes and Statutory Construction Sec. 51.02 (C. Sands 4th ed. rev. 1984). Here, the Sentencing Reform Act expressly authorizes courts to interpret it so as to achieve harmony, to the extent possible, with other statutes. The Sentencing Reform Act states that its provisions apply "[e]xcept as otherwise specifically provided." 18 U.S.C. Sec. 3551(a). We conclude that the Assimilative Crimes Act "specifically provide[s]," within the meaning of 18 U.S.C. Sec. 3551(a), that the sentencing for assimilative crimes is to be determined in accordance with state law so that the defendant is "subject to a like punishment." 18 U.S.C. Sec. 13.

However, state law generally specifies only the outer maximum and minimum sentences that a judge may impose and vests with the judge considerable discretion to determine an appropriate sentence within those limits. Within the permitted range, it is impossible to determine with certainty the sentence that a state judge would impose. As a result, the Assimilative Crimes Act's goal of intrastate sentencing uniformity is inherently limited by the lack of specificity of state sentencing law. It is within this permitted range that the Sentencing Reform Act of 1984 and the sentencing guidelines may act to promote federal uniformity.

Federal judges, like their state counterparts, can only be required to impose sentences for assimilative crimes that fall within the maximum and minimum terms permitted under state law. Efforts to duplicate every last nuance of the sentence that would be imposed in state court has never been required. For example, federal courts need not follow state parole policies, including provisions for good time credits. See, e.g., United States v. Binder, 769 F.2d 595, 600 (9th Cir.1985); Pinto, 755 F.2d at 154; United States v. Vaughan, 682 F.2d 290, 294-95 (2d Cir.), cert. denied, 459 U.S. 946, 103 S.Ct. 261, 74 L.Ed.2d 203 (1982); United States v. Smith, 574 F.2d 988, 992-93 (9th Cir.), cert. denied, 439 U.S. 852, 99 S.Ct. 158, 58 L.Ed.2d 156 (1978). In addition, Congress has expressly made applicable to assimilative crimes the federal provision requiring that a special monetary assessment be imposed on convicted persons. 18 U.S.C. Sec. 3013(d) (Supp. V 1987) (current version at 18 U.S.C. Sec. 3013(d) (1988)). Therefore, we hold that the Assimilative Crimes Act requires courts to impose sentences for assimilative crimes that fall within the maximum and minimum terms established by state law. However, within the range of discretion permitted to a state judge, a federal judge should apply the federal sentencing guidelines to the extent possible.

In addition to the exception clause of Sec. 3551(a), discussed above, the Sentencing Reform Act also provides that where there is no applicable sentencing guideline, the court is to have "due regard" for sentences prescribed by the guidelines for similar offenses and offenders. 18 U.S.C. Sec. 3553(b) (Supp. V 1987) (current version at 18 U.S.C. Sec. 3553(b) (1988)). The use of the phrase "due regard" suggests that Congress recognized that, in the absence of an applicable guideline for a particular crime, courts should not automatically apply the guidelines for similar offenses. In contrast, the commentary to Sec. 2X5.1 of the guidelines requires courts to apply "sufficiently analogous" guidelines. The commentary is too restrictive...