U.S. v. Gaskell, 97-4216

• Decision Date: 02 February 1998
• Docket Number: No. 97-4216,97-4216
• Citation: 134 F.3d 1039
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Diane M. GASKELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1039

134 F.3d 1039

UNITED STATES of America, Plaintiff-Appellee, v. Diane M. GASKELL, Defendant-Appellant.

No. 97-4216.

United States Court of Appeals, Eleventh Circuit.

Feb. 2, 1998.

Thomas F. Almon, Miami, FL, for Defendant-Appellant.

Dawn Bowen, Philip DiRosa and Harriett Galvin, Assts. U.S. Attys., Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

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 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. ²

Diane 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 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 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...