U.S. v. Teran

• Decision Date: 18 October 1996
• Docket Number: No. 96-50037,96-50037
• Citation: 98 F.3d 831
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio A. TERAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 831

98 F.3d 831

UNITED STATES of America, Plaintiff-Appellee, v. Antonio A. TERAN, Defendant-Appellant.

No. 96-50037.

United States Court of Appeals Fifth Circuit.

Oct. 18, 1996.

Rehearing Denied Nov. 21, 1996.

Richard L. Durbin, Jr., Asst. U.S. Attorney, Michael Robert Hardy, Office of the United States Attorney, San Antonio, TX, for plaintiff-appellee.

Philip J. Lynch, Office of the Federal Public Defender, San Antonio, TX, for defendant-appellant.

Appeal from the United States District Court for the Western District of Texas.

Before SMITH and PARKER, Circuit Judges, and JUSTICE, ^* District Judge.

PARKER, Circuit Judge:

Antonio A. Teran ("Teran") has brought this appeal of his probation revocation contending that the magistrate judge did not have jurisdiction over the underlying crime for which he was convicted and sentenced to

probation. He bases his argument on his characterization of his conviction as being for a felony, as opposed to a misdemeanor. Teran also contends that the original conviction and subsequent probation revocation are void because the case was not prosecuted by indictment as is required in felony cases. In addition, Teran argues that the revoking court had an insufficient evidentiary basis for revoking Teran's probation and also failed to consider the statutorily-required factors involved in revocation and sentencing, rendering invalid the sentence imposed upon revocation. We find that the magistrate judge had proper jurisdiction over the underlying offense, and AFFIRM the probation revocation and sentence.

FACTUAL AND PROCEDURAL HISTORY

In 1993, the defendant was charged by information with driving while intoxicated ("DWI") on a military base in violation of the Assimilative Crimes Act ("ACA"), 18 U.S.C. § 13, incorporating Tex.Rev.Stat.Ann. art. 6701l-1 (repealed) (West 1992 & Supp.1996). Teran waived his right to proceed before the district court and consented to proceeding before a magistrate judge. Teran pleaded guilty before a magistrate judge in a combined guilty plea and sentencing hearing.

Under the Texas DWI statute, the DWI offense was classified as a misdemeanor that carried a maximum penalty of two years imprisonment. At the hearing, the magistrate judge stated that the maximum penalty for Teran's offense was a one-year term of imprisonment and/or a $2000 fine. Teran acknowledged his understanding of the maximum penalty for the offense. The magistrate judge sentenced Teran to a two-year period of supervised probation, a $200 fine, and a special assessment of $25.

In September of 1995, the Government moved to revoke Teran's probation pursuant to Fed.R.Crim.P. 32.1 and 18 U.S.C. § 3565(a)(2), alleging that Teran had committed a second, state DWI offense in 1994 and had also failed to report his arrest to his probation officer, thereby violating the conditions of his probation that he obey the law, refrain from excessive alcohol consumption, and follow the instructions of his probation officer.

Following an evidentiary hearing before the magistrate judge, the judge revoked Teran's probation and sentenced him to a six-month period of incarceration. The magistrate judge determined that the Government had proved by a preponderance of the evidence that Teran committed the 1994 state DWI offense and that such a probation violation warranted incarceration. In state criminal court, a jury later acquitted Teran of the 1994 state DWI offense.

Upon appeal, the district court affirmed the revocation and sentencing, as well as the magistrate judge's jurisdiction over the underlying offense, and Teran now appeals that judgment to this court.

DISCUSSION

A. Felony or Misdemeanor?

Teran challenges the magistrate judge's subject matter jurisdiction over his underlying conviction on the basis that his DWI offense, assimilated into federal criminal law from Texas criminal law, should be classified as a felony and not as a misdemeanor. ¹ The issue of a lower court's subject matter jurisdiction is reviewed de novo. In re United States Abatement Corp., 39 F.3d 563, 566 (5th Cir.1994).

The issue under contention arises because when state law offenses are imported into federal law through the ACA, they carry punishment ranges sometimes at odds with the federal law's classification of offenses as either misdemeanors or felonies. The characterization of such offenses becomes potentially problematic when such offenses come before a magistrate judge, who does not have jurisdiction over felonies, but over misdemeanors. See 18 U.S.C. § 3401. Federal law defines a misdemeanor as any offense other than one "punishable by death or imprisonment for a term exceeding one year." See 18 U.S.C. § 1. In this case, state law provides a range of punishment for the state DWI offense of up to two years imprisonment. See Tex.Rev.Stat.Ann. art. 6701l-1 (repealed) (West 1992 & Supp.1996). As the Government conceded in its brief, Teran's offense is a "two-year misdemeanor--a contradiction in terms under the classification system for federal offenses."

The purpose of the Assimilated Crimes Act ("ACA") is to provide a set of criminal laws for federal enclaves by using the criminal law of the local state to fill in the gaps in federal criminal law. United States v. Brown, 608 F.2d 551, 553 (5th Cir.1979). The ACA provides that an offender "shall be guilty of a like offense and subject to a like punishment" as under state law. 18 U.S.C. § 13(a).

The appellant argues that state law fixes the range of punishment under the ACA and that the state law's punishment range for this offense causes the offense to be a felony, over which the magistrate judge lacked jurisdiction. The defendant also argues that to treat the offense otherwise would be to expand impermissibly the magistrate judge's jurisdiction, when Congress has carefully limited their jurisdiction. The Government contends that the Act's like punishment clause requires only analogous, and not identical, penalties. This Circuit has already decided how to apply the state law's punishment ranges for crimes incorporated into federal law under the ACA. State law provides the range of punishment, but in areas left to the discretion of a state judge, the federal sentencing guidelines are to be used. United States v. Marmolejo, 915 F.2d 981, 984 (5th Cir.1990).

While it is clear that the sentencing judge's discretion in imposing a sentence under the ACA is to be guided by the federal sentencing guidelines and not by any direction from the state, the issue here is whether the ACA requires that the maximum punishment range under state law be assimilated. In situations where incorporation of state law through the ACA results in provisions that conflict with federal policy, federal courts have declined to adopt fully state law provisions. As this Court previously stated in reviewing litigation concerning the ACA, "federal courts have consistently declined to assimilate provisions of state law through the ACA if the state law provision would conflict with federal policy." United States v. Davis, 845 F.2d 94, 99 (5th Cir.1988) (citing United States v. Pinto, 755 F.2d 150, 154 (10th Cir.1985); 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); United States v. Kendrick, 636 F.Supp. 189 (E.D.N.C.1986)).

In United States v. Kelly, the Fourth Circuit faced the same jurisdictional question posed by this case. 989 F.2d 162 (4th Cir.), cert. denied, 510 U.S. 854, 114 S.Ct. 158, 126 L.Ed.2d 119 (1993). The defendant there, as here, was convicted before a magistrate judge of a misdemeanor under state law, adopted into federal law under the ACA, that carried a maximum state sentence in excess of one year (eighteen months). The defendant there also appealed on the basis that the magistrate judge lacked jurisdiction, arguing that the ACA does not allow "selective assimilation," that is, that the ACA's like punishment clause does not permit the assimilation of a state crime without assimilating all of the maximum punishment provided for that crime by state law. The Fourth Circuit affirmed the conviction, relying on the established exception to the ACA's general policy against selective incorporation of state criminal law in situations where state law provisions would conflict with federal policy. Kelly, 989 F.2d at 164.

While the Fifth Circuit has not specifically addressed the jurisdiction of magistrate judges under the ACA in the discussed scenario, we have held that the ACA's presumption against selective assimilation is subject to the exception permitting federal courts to decline full assimilation of state law on the basis of conflict with federal policy. In United States v. Davis, we relied on the principle that "state laws should be assimilated through the ACA in light of federal policy concerns," in holding that federal fine assessment provisions should apply despite their conflict with state assessment provisions. 845 F.2d 94, 99 (5th Cir.1988). The term "like" in the like punishment clause was interpreted to require punishment similar to that under state law. Id. The same principle supports an assimilation of state law punishment ranges in light of the federal policy of reliance on magistrate judges. The Fourth Circuit aptly articulated such a federal policy basis as relating to "the need to promote the efficiency of our federal criminal process by permitting offenses of the type herein involved to be tried by a Magistrate Judge and by not requiring all such offenses to be tried before a federal District Judge. The need in that regard underlies the Congressional determination to confer certain jurisdiction upon Magistrate Judges and speaks for itself." Kelly, 989 F.2d at 164.

Conflict between federal sentencing policy and state sentencing law has also been found...