U.S. v. Jones

• Decision Date: 16 April 2019
• Docket Number: No. 18-2129,18-2129
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Arnold JONES, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

921 F.3d 932

UNITED STATES of America, Plaintiff - Appellee,

v.Arnold JONES, Defendant - Appellant.

No. 18-2129

United States Court of Appeals, Tenth Circuit.

FILED April 16, 2019

John V. Butcher, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant – Appellant.

C. Paige Messec, Assistant United States Attorney (John C. Anderson, United States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff – Appellee.

Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

Mr. Arnold Jones is a Native American who pleaded guilty to child abuse for driving on a reservation while intoxicated with his minor son in the car. He entered a guilty plea both before a tribal court and, after serving his tribal sentence, before a federal district court. Although child abuse itself is not a federal offense, federal law incorporates state law offenses committed by Native Americans on tribal land. After Mr. Jones pleaded guilty in federal court, the district court imposed a forty-month sentence. But, as all parties agree, the district court made a miscalculation, imposing twelve unintended months.

Mr. Jones appeals, asking us to vacate his sentence and to remand for imposition of the intended sentence. The government requests that we affirm the erroneous sentence because, it argues, the miscalculation is harmless due to the district court’s failure to impose a six-year mandatory minimum sentence. Concluding that the error was not harmless, we reverse and remand for the district court to correct the sentence.

I. BACKGROUND

Mr. Jones, a member of the Laguna Pueblo Indian Tribe, drove on tribal land while intoxicated with his six-year-old son in the car. Mr. Jones pleaded guilty in tribal court to driving while intoxicated and child abuse and served a one-year sentence in tribal custody. The federal government then brought charges against Mr. Jones. In federal court, he pleaded guilty to one count of child abuse in violation of 18 U.S.C. § 1153(b) and N.M. Stat. § 30-6-1.

At sentencing, the district court imposed a forty-two-month sentence. But both parties now agree the district court made a calculation error, resulting in a sentence twelve months longer than the intended sentence. Mr. Jones filed this appeal, challenging that error. Although the government concedes the district court erred, it argues the error was harmless because Mr. Jones is subject to a six-year mandatory minimum sentence under New Mexico law. That conclusion, the government argues, is dictated by this court’s decision in United States v. Wood , 386 F.3d 961 (10th Cir. 2004). Mr. Jones disagrees, claiming there is no minimum mandatory sentence applicable to his crime under New Mexico law. We agree with Mr. Jones and therefore vacate his sentence and remand to the district court with instructions to resentence him.

II. DISCUSSION

We begin our analysis by agreeing with the parties that the district court’s mathematical error resulted in a sentence different than the one it intended to impose. Next, we consider whether any error is harmless. To answer that question, we first explore the interplay among three distinct statutory provisions— 18 U.S.C. § 13 (the "Assimilative Crimes Act" or "ACA"), 18 U.S.C. § 1153 (the "Indian Major Crimes Act" or "IMCA"), and 18 U.S.C. § 3551 of the Sentencing Reform Act ("Sentencing Act")—and relevant case law in the federal circuit courts. After that discussion, we turn to Wood , and explain how New Mexico’s sentencing scheme is different from the Oklahoma sentencing scheme at issue there. Ultimately, we determine that Wood does not dictate the result here because New Mexico does not impose a mandatory minimum sentence on the crime of conviction. Thus, the district court’s error was not harmless.

A. The Sentencing Error

If a crime is committed by an "Indian ... against the person or property of another Indian ... within the Indian country," the offender is "subject to the same law and penalties as all other persons committing" that offense "within the exclusive jurisdiction of the United States." 18 U.S.C. § 1153(a). But if the crime committed "is not defined and punished by Federal law ... [it] shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense." Id. § 1153(b). In short, for nonfederal crimes committed on tribal land, federal law incorporates state criminal law. Here, New Mexico’s child abuse statute, § 30-6-1, was enforced against Mr. Jones in federal court. And because there is no federal sentence for child abuse, the court was required to punish Mr. Jones "in accordance with the laws of" New Mexico. See 18 U.S.C. § 1153(b).

Prior to sentencing, the United States Probation Office prepared a Presentence Investigation Report (PSR), that listed a maximum but not a minimum term of imprisonment for Mr. Jones. Neither party objected to the omission of a minimum sentence. At the sentencing hearing, Mr. Jones requested that the district court sentence him to time served—the twelve months he served in tribal prison and the nine months he served in presentence detention—and "up to six months in the halfway house[ ] and intensive outpatient treatment." ROA, Vol. III at 8; see also Appellant’s Br. at 5–6. The government requested a sixty-month sentence.¹ The district court did not accept either recommendation.

Instead, the district court concluded that Mr. Jones should serve "an additional nine months" beyond the time he had already served. ROA, Vol. III at 32. But then, as both parties agree, the district court made a calculation error. It sentenced Mr. Jones to forty-two months but reduced his sentence to forty months by permitting him the good-time credits he would have received if he had spent his first twelve months in federal as opposed to tribal custody. The district court explained its sentencing decision as follows: "42 months, minus the 12 months ... already served" and "the 12 months you’ve served in tribal custody, the nine-and-a-half months that you’ve served in federal custody, leaves you approximately nine months." ROA, Vol. III at 32. The district court seems to have double-counted the twelve months Mr. Jones served in tribal custody because that twelve-month period was the only twelve months "already served." Absent this explanation, we, like the government, "cannot come up with any equation that starts with 40 or 42 months and results in 9 months for [Mr.] Jones left to serve." See Appellee’s Br. at 4. Accordingly, we agree with the parties that the district court made a calculation error that resulted in a sentence longer than the court intended to impose.

Generally, in circumstances such as these, we would vacate Mr. Jones’s sentence and remand for the district court to resentence him. But the government argues this avenue is unavailable because Mr. Jones was subject to a six-year mandatory minimum sentence under New Mexico law. And because the erroneous sentence is below six years, the government argues Mr. Jones cannot show harm. For the reasons we now explain, we disagree.

B. Harmlessness

1. Statutory Interplay

To place this issue in context, we begin with a discussion of the three statutes relevant to this dispute: the ACA; the IMCA; and the Sentencing Act. The ACA was the first of these statutes to be enacted. "[I]n the 1820s, Daniel Webster introduced the ACA," in a time "when federal criminal statutes were few" and thus federal enclaves² "were pretty literally lawless." United States v. Christie , 717 F.3d 1156, 1170 (10th Cir. 2013). "Instead of trying to write an exhaustive criminal code for federal enclaves," Congress passed the ACA to "borrow from preexisting state law." Id. The ACA provides that anyone "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 ... in which such [enclave] is situated, ... shall be guilty of a like offense and subject to a like punishment." 18 U.S.C. § 13(a). Thus, the ACA performs a gap-filling function by "borrowing state law" to bolster the "federal criminal law that applies on federal enclaves," and that function has been described as the ACA’s "basic purpose." Lewis v. United States , 523 U.S. 155, 160, 118 S.Ct. 1135, 140 L.Ed.2d 271 (1998).

The IMCA, the first version of which was enacted in 1885, see United States v. Doe , 572 F.3d 1162, 1169 (10th Cir. 2009), has likewise been described as providing a gap-filling function, see United States v. Pluff , 253 F.3d 490, 494 (9th Cir. 2001), as amended (Aug. 6, 2001) ("There is no difference relevant to this case between the purpose of the ACA and that of the [I]MCA. Both statutes were enacted to fill jurisdictional gaps."). Unlike the ACA, however, the IMCA applies only to crimes committed by an "Indian ... against the person or property of another Indian or other person ... within Indian country." 18 U.S.C. § 1153(a). The first provision of the IMCA is concerned with national uniformity. It provides that the offender is "subject to the same law and penalties as all other persons committing" that offense "within the exclusive jurisdiction of the United States." Id. But the second provision establishes the ACA-analogous, gap-filling function discussed by the Ninth Circuit in Pluff : If the crime committed "is not defined and punished by Federal law ... [it] shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense."

Id. § 1153(b). In short, for nonfederal crimes committed by Indians on tribal land, federal law incorporates state criminal law. Here, New Mexico’s child abuse statute, § 30-6-1, was enforced against Mr. Jones in federal court under the second provision of the IMCA because the crime was committed on a reservation and child abuse is not defined by...