U.S. v. Norquay, 89-5382

• Decision Date: 16 July 1990
• Docket Number: No. 89-5382,89-5382
• Citation: 905 F.2d 1157
• Parties: UNITED STATES of America, Appellant, v. Patrick A. NORQUAY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1157

905 F.2d 1157

UNITED STATES of America, Appellant, v. Patrick A. NORQUAY, Appellee.

No. 89-5382.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 14, 1989.

Decided June 12, 1990.

Rehearing Denied July 11, 1990.

Rehearing En Banc Denied July 16, 1990.

Lynn A. Zentner, Minneapolis, Minn., for appellant.

Andrew H. Mohring, Minneapolis, Minn., for appellee.

Before McMILLIAN, JOHN R. GIBSON and BOWMAN, Circuit Judges.

McMILLIAN, Circuit Judge.

The United States appeals from a final order entered in the District Court for the District of Minnesota holding the Federal Sentencing Guidelines inapplicable to a burglary conviction under the Indian Major Crimes Act, 18 U.S.C. Sec. 1153 (1988), and sentencing defendant Patrick A. Norquay under the Minnesota Sentencing Guidelines. For reversal, the government argues that the district court erred in (1) applying the Minnesota Sentencing Guidelines to determine the length of defendant's sentence, (2) applying Minnesota law to compute good time credits, and (3) applying Minnesota law to determine whether defendant's sentence should run concurrently or consecutively with a state sentence he is currently serving. We agree with the government and accordingly vacate the sentence imposed by the district court and remand for resentencing consistent with this opinion.

I.

Defendant was charged in a single-count indictment with second degree burglary in violation of the Indian Major Crimes Act, 18 U.S.C. Sec. 1153 (1988) (the Major Crimes Act). The Major Crimes Act makes burglary committed by an Indian within "Indian country" a federal crime. ¹ 18 U.S.C. Sec. 1153(a). Because there exists no federal statute describing what conduct constitutes the crime of burglary, the Major Crimes Act incorporates the law of the state in Any offense referred to in subsection (a) of this section that is not defined and punished by Federal law in force within the exclusive jurisdiction of the United States 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.

which the burglary was committed for purposes of defining the crime and establishing the punishment:

18 U.S.C. Sec. 1153(b). ² In Minnesota, the elements of second degree burglary and the maximum penalty are as follows:

Whoever enters a building without consent and with intent to commit a crime commits burglary in the second degree and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both, if ... when entering or while in the building, the burglar possesses a tool to gain access to money or property.

Minn.Stat.Ann. Sec. 609.582 subd. 2(d) (West 1987). Defendant plead guilty to the charge, admitting that he burglarized the Redby Garage located on the Red Lake Reservation in Minnesota and that he used a tool to gain entry. ³

Both parties agreed that because the Major Crimes Act makes burglary punishable according to state law, defendant's sentence should not exceed the 10-year maximum sentence in Minn.Stat.Ann. Sec. 609.582 subd. 2. The parties disagreed, however, as to whether defendant should be sentenced pursuant to the Minnesota Sentencing Guidelines or the Federal Sentencing Guidelines. ⁴ Reserving their right to appeal, the parties stipulated to alternative sentences under state and federal law. The parties agreed to a sentencing range of 24 to 30 months imprisonment under the Federal Guidelines and 37 to 45 months under the Minnesota Guidelines. Under federal law, defendant is entitled to earn good time at a rate of 54 days per year after the first year served. 18 U.S.C. Sec. 3624(b) (1988). Under Minnesota law, defendant is eligible for good time at a rate of one day for every two days served. Minn.Stat.Ann. Sec. 244.04 (West Supp.1990). Whether defendant's federal sentence will run consecutively or concurrently with his state sentence is governed by Federal Guideline Sec. 5G1.3. ⁵ In Minnesota, multiple sentences are governed by Minn.Stat.Ann. Sec. 609.15 (West 1987) and Minnesota Sentencing Guideline Sec. II.F.

The district court held that the Major Crimes Act requires that defendant be sentenced pursuant to the Minnesota Guidelines and that the Sentencing Reform Act of 1984 (the Sentencing Act) did not expressly or implicitly repeal that mandate. United States v. Norquay, 708 F.Supp. 1064, 1066 (D.Minn., 1989). The court sentenced defendant under Minnesota law to 37 months imprisonment to run concurrently with a state sentence he is currently serving, and ordered that good time be calculated according to Minnesota law. The government moved for reconsideration of defendant's sentence. The court denied the government's motion, and the government

                filed a notice of appeal pursuant to 18 U.S.C. Sec. 3742(b) (1988).  Our review of the sentence imposed by the district court is governed by 18 U.S.C. Sec. 3742(e), which requires us to determine whether the sentence was "imposed in violation of law."    18 U.S.C. Sec. 3742(e)(1) (1988)
                

II.

The issue before us is whether the Sentencing Act, and the Federal Sentencing Guidelines established by it, apply to the crime of burglary committed by an Indian on an Indian reservation in violation of the Major Crimes Act. The confusion lies with the language of the two acts. The Major Crimes Act states that burglary shall be "defined and punished" according to state law. 18 U.S.C. Sec. 1153(b). The Sentencing Act states: "Except 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).

When resolving an apparent conflict between two federal statutes, we are mindful of our duty to regard each statute as effective wherever possible, absent a clearly expressed Congressional intent to the contrary. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, 104 S.Ct. 2862, 2880-81, 81 L.Ed.2d 815 (1984) (Ruckelshaus ). We agree with the district court that the Sentencing Act expresses no clear intent to repeal the incorporation of state law in the Major Crimes Act. Cf. United States v. Garcia, 893 F.2d 250, 254 (10th Cir.1989) (the Sentencing Act does not manifest a clear intent to repeal the incorporation of state law in the Assimilative Crimes Act ⁶), cert. denied, --- U.S. ----, 110 S.Ct. 1792, 108 L.Ed.2d 793 (1990). The Sentencing Act expressly states that it shall apply "[e]xcept as otherwise specifically provided." 18 U.S.C. Sec. 3551(a). As the Tenth Circuit noted, this provision "authorizes courts to interpret [the Sentencing Act] so as to achieve harmony, to the extent possible, with other statutes." United States v. Garcia, 893 F.2d at 254. We are aware that the legislative history of the Sentencing Act refers to "[f]ederal offenders" and "[f]ederal criminal cases," S.Rep. No. 225, 98th Cong., 2d Sess. 39, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3222, and that defendant is a federal offender. United States v. Long Elk, 565 F.2d 1032, 1040 (8th Cir.1977) (burglary under the Major Crimes Act remains a federal offense despite incorporation of state law). However, this is not enough to demonstrate an intent on the part of Congress to repeal the Major Crimes Act, especially when Congress' words indicate a contrary intent. ⁷ See Ruckelshaus, 467 U.S. at 1017, 104 S.Ct. at 2879-80 ("repeals by implication are disfavored") (quoting Regional Rail Reorganization Act Cases, 419 U.S. 102, 133, 95 S.Ct. 335, 353, 42 L.Ed.2d 320 (1974)).

However, we part company with the district court's holding that the absence of an intent to revoke the incorporation of state law in the Major Crimes Act means Our holding gives effect to the Sentencing Act's goal of promoting uniform sentencing within the federal system without undermining the policies embedded in the Major Crimes Act. See Ruckelshaus, 467 U.S. at 1018, 104 S.Ct. at 2880-81. Congress enacted the Major Crimes Act because Indian tribes, who had exclusive jurisdiction over crimes committed by Indians on Indian land, were not adequately punishing their people for major offenses such as murder. Keeble v. United States, 412 U.S. 205, 209-12, 93 S.Ct. 1993, 1996-98, 36 L.Ed.2d 844 (1973). The overriding goal of Congress was to confer federal jurisdiction over certain offenses Congress deemed the most heinous. Id.

                that federal courts must decline to sentence defendants convicted under the Major Crimes Act according to the Federal Guidelines.  We interpret the Major Crimes Act to require only that the sentence imposed for burglary fall within the minimum, if any, and maximum sentence established by state law.  Cf. United States v. Garcia, 893 F.2d at 254 (adopting the same interpretation of the "like punishment" provision in the Assimilative Crimes Act). 8   Within that range, the sentence should be calculated according to the Federal Sentencing Guidelines
                

In addition, our holding does not defeat Congress' desire that Indians and non-Indians committing the same crime be subject to the same punishment. This desire was clearly expressed in the legislative history of the 1976 amendments to the Major Crimes Act. H.R.Rep. No. 1038, 94th Cong., 2d Sess. 1, reprinted in 1976 U.S.Code Cong. & Admin.News 1125 (hereinafter 1976 USCAAN). While amending the Major Crimes Act to make certain crimes punishable under federal law so that Indians and non-Indians would be treated alike, ⁹ Congress specifically left burglary and incest committed by an Indian in violation of 18 U.S.C. Sec. 1153 to be defined and punished according to state law. 1976 USCAAN at 1129 n. 10. Congress recognized that because no federal statute defines burglary or incest, non-Indians, who are prosecuted under the Assimilative Crimes Act which also incorporates state law, would also be subject to the offenses and penalties of the state where the...