When sentencing for state crimes under the Assimilative Crimes Act, district courts must apply Sentencing Guidelines for crimes that are “sufficiently analogous” when elements of state and federal crimes are compared

USA v. Carolyn Jackson and John Jackson, No. 16-1200 (7/6/17, 3d Cir.)

In an 80 plus page opinion, followed by a 30 or so page impassioned dissent form Judge McKee, a panel overturned a sentence imposed following a trial of two defendants who, for actions committed on a military vase, were acquitted of federal assault charges but convicted of various New Jersey laws against child abuse for which there were no precise federal counterparts.  The government contended that the Court, had it followed federal sentencing guidelines, should have imposed a sentence in the range of 292 to 365 months. (The PSR had calculated a slightly lower range.) The defendants, wife and husband, received sentences of imprisonment of respectively 24 months (as well as three years of supervised release) and three years of probation (as well as 400 hours of community service and a $15,000 fine. The district court found no analogous sentencing guidelines, and the government appealed.

The panel noted the case was unusual because defendants are not usually sentenced in federal court for violating state laws, but under the Assimilative Crimes Act (“ACA”), state crimes committed on federal property or installations located in those states can be prosecuted in state court. The panel’s opinion never gives a straight recitation of the facts proved at trial, relying instead on snippets of the indictment and jury charges to discuss the defendants’ conduct. Basically though, they engaged in acts of assaulting foster children physically, withholding nourishment and timely medical treatment, and causing them to consume food and liquids that caused pain and suffering. The defense apparently attributed their actions to excessive but not cruel child discipline.

The panel began its analyses at U.S.S.G. § 2X5.1, which requires application of guidelines for “sufficiently analogous” offense guidelines. It adopted a “ballpark” or “plausible analogy” test to determine whether a state crime had an analogous offense for which a guideline could be applied. Its examination led it to conclude that the assault guidelines for 18 U.S.C. §113, which prohibits “[a]ssaults within the special maritime and territorial jurisdiction” to apply even though the defendants were acquitted of all parts of §113 charged against them. The differences between the convictions for the state crimes and §113 were not so great that guidelines for parts of that statute could not be used as guidelines for the state convictions. No fact finding was necessary to conclude that sufficiently analogous guidelines existed as the test requires only a comparison of legal elements. The guidelines that apply do not need to perfectly match the state crime. The panel thought little of the district court’s observations at sentencing, based on her experience as a state family court judge, that the interests of the state law differed from those vindicated by the federal laws the government thought required application of specific sentencing guidelines— her job, the panel implied, was merely to match the elements as best as possible, if possible. In this case, the panel ruled, it was possible.

The panel also directed the district court when resentencing to engage in the fact finding required for application of the Sentencing Guidelines and 18 U.S.C. §3553(1) factors. It also noted that the ACA sets the state sentences as setting the minimum and maximum sentences that could be imposed— the government’s proposed sentences did not exceed those.

Finally, the panel deemed the district court’s sentence not to be substantively reasonable, and found that no reasonable sentencing court would have imposed the sentence imposed by the district court, it being too lenient. With the remand, the panel also took the rare step of instructing the district court as to the panel’s assessment of the seriousness of the defendants conduct, the need for a sentence that will deter similar conduct, and how to assess the defendants’ military service and life as a spouse of a member of the military, and the defendants’ expressions of contrition, which the panel thought the district court attributed too much weight. The panel’s assessment of these factors were different than those of the district court, and will militate in favor of a higher sentence. The panel, in a final footnote, expressed displeasure with the government’s citations to press reports and expressions of shock by spectators to the sentencing. The panel reminded the government that a sentencing court should try to curry favor with public opinion, and a press report is not proof that a district court committed reversible error.