UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAT QUOC DO, Defendant-Appellant.
No. 19-30138
United States Court of Appeals for the Ninth Circuit
April 19, 2021
D.C. No. 3:17-cr-00431-SI-1
Before: M. Margaret McKeown and Paul J. Watford, Circuit Judges, and Barbara Jacobs Rothstein, District Judge. Opinion by Judge McKeown
FOR PUBLICATION
Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding
Argued and Submitted December 8, 2020 Seattle, Washington
Filed April 19, 2021
Opinion by Judge McKeown
* The Honorable Barbara Jacobs Rothstein, United States District Judge for the Western District of Washington, sitting by designation.
SUMMARY**
Criminal Law
The panel reversed the defendant‘s convictions for two counts of unlawful use of a weapon (UUW) under Oregon law,
The defendant, a passenger in a car on a highway in the Warm Springs Indian Reservation, fired six shots in the air after a passenger in a car in front of him threw a plastic bottle at his car.
The panel addressed whether the government was permitted to borrow from Oregon law in this way, applying the two-part test set out in Lewis v. United States, 523 U.S. 155 (1998), for determining whether the ACA assimilates a particular state criminal law. As to the first part, the panel agreed with the parties that the defendant‘s conduct is punishable under the federal assault statute,
COUNSEL
Elizabeth G. Daily (argued), Assistant Federal Public Defender; Gerald M. Needham, Federal Public Defender; Office of the Federal Public Defender, Portland, Oregon; for Defendant-Appellant.
Amy E. Potter (argued), Appellate Chief; Suzanne Miles, Assistant United States Attorney; Billy J. Williams, United States Attorney; United States Attorney‘s Office, Portland, Oregon; for Plaintiff-Appellee.
McKEOWN, Circuit Judge:
This appeal arises from a road rage incident on a highway in the Warm Springs Indian Reservation in central Oregon. Dat Quoc Do, who was a passenger in a car driven by his girlfriend, fired six shots in the air after a passenger in the car in front of him threw a plastic soda
The question before us is whether the government was permitted to borrow from Oregon law in this way. We conclude that it was not because assimilation is permitted only where necessary to fill gaps in federal criminal law on federal enclaves, and there was no such gap here. We reverse Do‘s convictions under Oregon‘s UUW statute and remand for proceedings consistent with this opinion. In view of this reversal, we do not consider Do‘s other arguments on appeal.
BACKGROUND
While Do and his girlfriend, Thao Tran, were driving through the Warm Springs Indian Reservation on a single-lane highway, a car driven by AV1 pulled out in front of them.1 AV1 was driving slowly, and Tran began tailgating her car. AV1 and AV2 proceeded to gesture at Tran, including flashing their middle fingers. AV2 then leaned out of the car window and threw a plastic soda bottle at Tran‘s car.
Do then pulled a gun from his backpack, lowered his window, and fired three shots “toward the sky.” The cars then reached the passing lane, and Tran pulled into the left lane to pass AV1‘s car. As Tran overtook AV1‘s car, Do again rolled down his window and fired his gun three times.
Do was charged with two counts of UUW under Oregon law, assimilated into federal law by the ACA. Before trial, Do filed a motion to dismiss the indictment, arguing that the federal assault statute precluded assimilation of Oregon‘s UUW statute under the ACA. After the district court denied this motion, Do proceeded to trial on the UUW charges, and the jury returned guilty verdicts on both counts. The district court sentenced Do to probation for a term of three years. Do timely appealed.
ANALYSIS
The ACA provides that, in places under federal jurisdiction—including Indian country—a person who
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.
Using the ACA, the government charged Do with violating Oregon‘s UUW statute,2 which, in relevant part, punishes “[a]ttempt[ing] to use unlawfully against another ... any dangerous or deadly weapon.”
In determining whether the ACA assimilates a particular state criminal law, we apply the two-part test set out in Lewis v. United States. See 523 U.S. at 164-66. First, we ask whether the “defendant‘s ‘act or omission [is] made punishable by any enactment of Congress.‘” Id. at 164 (quoting
“applicable federal law indicate[s] an intent to punish conduct such as the defendant‘s to the exclusion of the particular state statute at issue.” Id. at 166.
Though there are no “automatic general answer[s]” to this second question, id. at 165, the assimilation of state law is precluded:
(1) where state law “would interfere with the achievement of a federal policy“; (2) where “state law would effectively rewrite an offense definition that Congress carefully considered“; and (3) where “federal statutes reveal an intent to occupy so much of a field as would exclude use of the particular state statute at issue.”
Souza, 392 F.3d at 1052-53 (quoting Lewis, 523 U.S. at 164-65). Lewis further instructs that the assimilation of state law will “obvious[ly]” be precluded “where both state and federal statutes seek to punish approximately the same wrongful behavior,” and differences between the two “reflect jurisdictional, or other technical, considerations” or “amount only to those of name, definitional language, or punishment.” Lewis, 523 U.S. at 165.
I. Do‘s Conduct is Made Punishable by the Federal Assault Statute
Applying Lewis‘s two-part test here, we ask first whether Do‘s conduct is made punishable by any enactment of Congress. On this point, there is no dispute. We agree with the parties that Do‘s conduct is punishable under the federal assault statute.
The federal assault statute, as amended in 2013, punishes eight different forms of assault, including, as relevant here, “[a]ssault with a dangerous weapon, with intent to do bodily harm” and “[s]imple assault.”
Do‘s conduct of firing his gun six times while tailgating and subsequently passing AV1‘s car is undoubtedly punishable as simple assault under
II. The Federal Assault Statute Precludes Application of Oregon‘s UUW Statute
Because Do‘s conduct is punishable under the federal assault statute, we next ask whether that statute precludes application of Oregon‘s UUW statute. We conclude that it does for three reasons: first, the federal assault statute and Oregon‘s UUW statute “seek to punish approximately the same wrongful behavior,” Lewis, 523 U.S. at 165; second, the federal assault statute “reveal[s] an intent to occupy” the field of assault to the exclusion of Oregon‘s UUW statute, id. at 164; and third, assimilating Oregon‘s UUW statute into federal law would “effectively rewrite an offense definition that Congress carefully considered,” id.
A. The Federal Assault Statute and Oregon‘s UUW Statute Seek to Punish the Same Wrongful Behavior
Though named differently, the federal assault statute and Oregon‘s UUW statute target approximately the same wrongful conduct—assault. See Lewis, 523 U.S. at 165. As discussed above, the federal assault statute incorporates the common-law definition of assault, criminalizing both attempts and threats to inflict injury. See Lewellyn, 481 F.3d at 697. Oregon‘s statute likewise incorporates the common-law definition of assault, criminalizing both the infliction of harm or injury and the threat of immediate harm or injury. See State v. Ziska, 334 P.3d 964, 970 (Or. 2014) (en banc) (interpreting Oregon‘s UUW statute as criminalizing the “employment of a weapon to inflict harm or injury,” as well as the “employment of a weapon to threaten immediate harm or injury” (emphasis added)).
That Oregon‘s statute criminalizes assault is underscored by the fact that, under Oregon law, convictions for assault and UUW merge into one another. See, e.g., State v. Zolotoff, 280 P.3d 396, 397 (Or. Ct. App. 2012); State v. Ryder, 216 P.3d 895, 896-97 (Or. Ct. App. 2009). Because both the federal and state statutes punish “approximately the same wrongful behavior,” the federal assault statute precludes application of Oregon‘s UUW statute.
The government views the statutes from a different perspective, namely that they do not seek to punish approximately the same wrongful behavior because the Oregon legislature wrote the UUW statute to target weapon use, not general assaults. Oregon‘s legislative intent is evident, according to the government, in the statute‘s placement in the “Offenses Against Public Order” chapter, rather than in the “Offenses Against Persons” chapter, where other assault statutes are located. But the focus on the Oregon legislature obscures the relevant inquiry. While the Lewis test requires courts to discern legislative intent, it is the intent of Congress—not the Oregon legislature—
The government also insists that Oregon‘s UUW statute addresses a more specific concern than the federal assault statute and thus “properly fill[s] a gap in federal law by punishing ... specific behavior” that the general federal assault statute does not address. United States v. Rocha, 598 F.3d 1144, 1151 (9th Cir. 2010) (emphasis added). Not so. Both the federal assault statute and Oregon‘s UUW statute punish assault with a dangerous weapon. Compare
B. The Federal Assault Statute Occupies the Field of Assault to the Exclusion of Oregon‘s UUW Statute
The federal assault statute also “reveal[s] an intent to occupy so much of [the] field as would exclude use” of Oregon‘s UUW statute. Lewis, 523 U.S. at 164. As we concluded in United States v. Rocha, “the federal assault statute‘s comprehensive definitions reveal Congress‘s intent to fully occupy the field of assault on a federal enclave.” 598 F.3d at 1150 (emphasis added). This conclusion is of even more force here, as the federal assault statute in effect when Do was charged—and that remains in effect today—is even more comprehensive than the earlier version at issue in Rocha. Compare
The government claims that Rocha is inapposite because there we concluded that the federal assault statute occupies the field of assault crimes, and Oregon‘s UUW statute is not an assault statute. This argument elevates form over substance in a way Lewis cautions against. See Lewis, 523 U.S. at 165 (noting that “differences amount[ing] only to those of name, definitional language, or punishment” cannot justify assimilation of a state law offense). Though not labeled an assault statute, Oregon‘s UUW statute mirrors the common-law definition of assault and criminalizes assaultive conduct, as the government concedes.
The government also argues that Rocha illustrates that courts most often reject assimilation where the state and federal statutes at issue are direct analogues. But, as Lewis instructs and our precedent well demonstrates, assimilation may be precluded even where state and federal statutes are not direct analogues, so long as the state statute punishes approximately the same conduct. See Waites, 198 F.3d at 1129 (concluding that Oregon‘s criminal trespass statute could not be assimilated into federal law because it punished the same wrongful behavior as a federal regulation prohibiting noncompliance with directions on postal property). Oregon‘s UUW statute does just that.
Finally, assimilating Oregon‘s UUW statute into federal law would “effectively rewrite an offense definition that Congress carefully considered.” Lewis, 523 U.S. at 164. The federal assault statute reflects policy judgments made by Congress as to what forms of assaultive conduct should be punishable under federal law and to what extent. See Rocha, 598 F.3d at 1150 (“Although there are other formulations Congress might have adopted, in § 113 Congress addressed key policy questions . . . .“). Under federal law, assault with a dangerous weapon, which carries a maximum sentence of 10 years, requires that the defendant had an “intent to do bodily harm.”
The disparity in punishment presented a dilemma for the government. Rather than settling for simple assault‘s six-month maximum sentence, the government availed itself of the state statute‘s higher statutory maximum. Explaining this strategy, the government noted: “The government had two choices: one, charge a misdemeanor assault or ... charge the most appropriate state statute ....“). In responding to the query, “The reason why you did this and created this problem for yourself is because you wanted the higher statutory max?“, the government replied, “Absolutely.” But the ACA is not intended to operate in this pick-and-choose way. The Act‘s application is predicated on analysis of the federal statute, not a prosecutorial desire to obtain a higher sentence.
Rocha admonishes that where the two statutes punish the same wrongful behavior, the government may not “bypass[] ... lesser sentence charges” under the federal statute by using a state statute with a higher maximum term of imprisonment. Rocha, 598 F.3d at 1152. Doing so would impermissibly rewrite the Congressional framework of crime and punishment.
CONCLUSION
We reverse Do‘s convictions because Oregon‘s UUW statute was improperly assimilated under the ACA.
REVERSED and REMANDED for proceedings consistent with this opinion.