UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ARNOLD JONES, Defendant - Appellant.
No. 18-2129
United States Court of Appeals for the Tenth Circuit
April 16, 2019
PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
FILED
United States Court of Appeals
Tenth Circuit
April 16, 2019
Elisabeth A. Shumaker
Clerk of Court
Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:17-CR-00699-MV-1)
John V. Butcher, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant - Appellant.
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
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—
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.”
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
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.”
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 (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.”
“[B]ecause of the similarities between the [ACA and IMCA],” it is unsurprising that courts look to cases interpreting one to shed light on the interpretation of the other. See Wood, 386 F.3d at 962 n.1–2. But despite their similarities in function, the language of the two statutes is distinct. While the ACA requires only that a federal court apply state law to the extent necessary to hold the defendant “guilty of a like offense and subject to a like punishment,”
In United States v. Garcia, 893 F.2d 250 (10th Cir. 1989), we considered “whether the guidelines promulgated by the United States Sentencing Commission apply to violations of the [ACA].” Garcia, 893 F.2d at 251. This was an open question because, at that time, the Sentencing Act stated, “[e]xcept 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.”
concluding that the Guidelines did apply to the ACA and that the ACA did not require “duplicat[ing] every last nuance of the sentence that would be imposed in state court.” Garcia, 893 F.2d at 251–52; 254. Instead, we held that only the “maximum and minimum terms established by state law” were incorporated via the ACA and that “within the range of discretion permitted to a state judge, a federal judge should apply the federal sentencing guidelines to the extent possible.” Id. at 254; see also United States v. Pinto, 755 F.2d 150, 154 (10th Cir. 1985) (holding that the ACA did not require imposition of two-year parole term made mandatory under state law).
In its opinion in United States v. Norquay, 905 F.2d 1157 (8th Cir. 1990), the Eighth Circuit relied on our opinion in Garcia to hold the Guidelines also apply to crimes “committed by an Indian on an Indian reservation in violation of the [IMCA].” Norquay, 905 F.2d at 1160. The Eighth Circuit concluded that the Minnesota law for computing good time credits and determining whether a sentence should run concurrently or consecutively was not incorporated under the IMCA. Id. at 1158. Rather, the IMCA “require[d] only that the sentence imposed . . . fall within the minimum, if any, and maximum established by state law.” Id. at 1160–61 (citing Garcia, 893 F.2d at 254). But not every circuit agreed about the applicability of Garcia to the IMCA.
[statute],” we assumed “for purposes of th[at] opinion” that the sentence was based on the ACA. Garcia, 893 F.2d at 253 n.3.
Bear, 932 F.2d 1279, 1283 (9th Cir. 1990) (“We conclude that since the statutory language discussing punishments in the [ACA] is markedly different from that found in [the IMCA], the reasoning of the Tenth Circuit in Garcia should not govern our reasoning in this case.“), superseded by statute, Sentencing Reform Act,
The Guidelines were designed to promote uniformity among federal sentences. Our decision in this case, however, is predicated upon a different kind of concern for uniformity: intrastate uniformity in sentencing for Indians and non-Indians who commit the same state offenses. Holding that an Indian who commits a state law crime of burglary should be sentenced differently than a non-Indian who commits the same state law crime would clearly undermine the policy of uniformity Congress sought to promote in passing [the IMCA]. Our decision upholds that policy.
Id. (internal citation omitted). Although the Ninth Circuit‘s reasoning seemed persuasive at the time, in 1990, the same year Bear and Norquay were decided, Congress amended the Sentencing Act.
Prior to 1990,
any Federal statute . . . shall be sentenced in accordance with the provisions of this chapter.” Garcia, 893 F.2d at 253 (quoting
It is with this backdrop that we considered the relationship between the IMCA and the now-amended Sentencing Act in Wood.
2. United States v. Wood
Prior to Wood, it was unsettled in this circuit whether Garcia‘s approach to the ACA applied to the IMCA. That is, the question remained open whether for purposes of the IMCA we would limit the incorporation of state law to the maximum and minimum sentences or instead, also incorporate state “sentencing schemes.” See Pluff, 253 F.3d at 494. We resolved that question in Wood. There, the defendant was convicted of committing Oklahoma second-degree burglary “in Indian
We explained that
minimum, we held that under
As to Oklahoma‘s suspension provision, we declined to incorporate it because the IMCA did not “require[] a federal court to follow ‘every last nuance of the sentence that would be imposed in state court,‘” id. at 963 (quoting Norquay, 905 F.2d at 1162 (quoting Garcia, 893 F.2d at 254)) (internal quotation marks omitted). And because “the Guidelines deny a district court the discretion to suspend a sentence of imprisonment,” we concluded that courts could not apply the state suspension provisions to depart from the mandatory minimum sentence for “defendants convicted of violating the IMCA and sentenced in accordance with the Guidelines.” See id. We justified our reasoning as consonant with other courts that had “consistently declined to assimilate [provisions of] state sentencing laws if such laws conflicted with the Guidelines and their underlying policies,” see id., apparently implying that incorporating state suspension provisions would conflict with the Guidelines and their underlying policies. Id. (citing United States v. Pate, 321 F.3d 1373, 1376 (11th Cir. 2003) (collecting cases)).
After the 1990 amendments to
incorporation of state law in defining and punishing crimes is limited to the applicable elements [of the crime] and sentencing schemes.” Id. at 494. That is, Pluff at least suggests that the federal sentencing court could incorporate more than the state minimum and maximum sentences. But, as explained below, we need not determine whether more than the maximum and minimum sentences of the New Mexico sentencing scheme should be incorporated because unlike the Oklahoma offense at issue in Wood, the offense here is not subject to a mandatory statutory minimum sentence.
According to the government, Wood‘s holding that “the Guidelines deny a district court the discretion to suspend a sentence of imprisonment” binds the federal sentencing court in Mr. Jones‘s case to six years as the state mandatory minimum sentence. Wood, 386 F.3d at 963. Therefore, the government argues, Mr. Jones has not been harmed by the district court‘s miscalculation of his sentence because it still falls below that state mandatory minimum. Mr. Jones disagrees, arguing that under New Mexico‘s sentencing scheme there is no minimum mandatory sentence for his offense. We agree with the government that Wood precludes federal sentencing courts from incorporating and applying state suspension provisions to depart from a state mandatory minimum sentence. But because of the differences between the New Mexico and Oklahoma sentencing schemes, we agree with Mr. Jones that New Mexico has not established a minimum mandatory sentence for this offense and therefore there is no mandatory minimum for a federal sentencing court to incorporate under Wood.
3. New Mexico Sentencing Scheme
New Mexico law establishes a “basic sentence” for each class of felony and requires that such basic sentences “be imposed” “unless the court alters the sentence pursuant to the provisions of the Criminal Sentencing Act.”
Upon entry of a judgment of conviction of any crime not constituting a capital or first degree felony, any court having jurisdiction when it is satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may either:
A. enter an order deferring the imposition of sentence;
B. sentence the defendant and enter an order suspending in whole or in part the execution of the sentence; or
C. commit the convicted person, . . . to the department of corrections . . . with direction that the court be given a report when the diagnosis is complete as to what disposition appears best when the interest of thepublic and the individual are evaluated.
A New Mexico “trial court has discretion to vary the penalty for a crime by suspending part or all of the sentence, depending on a wide variety of factors.” State v. Candelaria, 825 P.2d 221, 223 (N.M. Ct. App. 1991) (citing
New Mexico courts also have discretion to impose probation “if the defendant is in need of supervision, guidance[,] or direction,” but it may only impose probation if it first defers or suspends the defendant‘s sentence under
When the New Mexico courts suspend or defer a sentence, with or without probation, they are not required to attach any conditions. See
Mr. Jones pleaded guilty to a second-degree felony and thus would have been subject to a basic sentence of nine years if tried in New Mexico courts. See ROA, Vol. II at 1, 21;
Under these circumstances, we cannot agree with the government that Mr. Jones is subject to a minimum mandatory sentence of six years under New Mexico law. Nor are we convinced that Wood dictates such a result. In Wood, we imposed the mandatory minimum sentence set forth by Oklahoma law, which provided an express minimum mandatory sentence for second-degree burglary: imprisonment “not exceeding seven (7) years and not less than two (2) years.”
Important for our purposes, the New Mexico legislature has not dictated that a person who violates
In Section 66-8-102, the Legislature has provided for multiple sentencing options. Specifically, for third offenders convicted of aggravated DWI, the Legislature has provided for a mandatory minimum jail term of 90 days. This mandatory sentence is not to be suspended, deferred, or taken under advisement.
Martinez, 966 P.2d at 751 (citation omitted). That is, the New Mexico Supreme Court defined the minimum mandatory sentence as the part of the sentence that the legislature had indicated could not be suspended, deferred or taken under advisement. See State v. Cunningham, No. A-1-CA-35540, 2018 WL 1801152 (Ct. App. N.M. 2018) (holding that defendant‘s guilty plea was not rendered involuntary for failure to notify him of the minimum mandatory sentence because, where a sentence could be altered, suspended or deferred, there was no minimum mandatory sentence).
Under Garcia and Wood, only the “maximum and minimum terms established by state law” are incorporated via the ACA and IMCA. Wood, 386 F.3d at 963; Garcia, 893 F.2d at 251–52; 254. Because the New Mexico legislature has not dictated that any portion of the sentence for violation of
4. Application
Wood relied on the Guidelines’ instruction that, “[w]here a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.” Wood, 386 F.3d at 962 (quoting U.S.S.G. § 5G1.1(b)). As discussed, the Oklahoma statute at issue in Wood contained a traditional mandatory minimum sentence. See id. (noting that in Oklahoma, the offense is punishable by imprisonment “not exceeding seven (7) years and not less than (2) years“).5 But New Mexico defines the minimum mandatory sentence for an offense as the part of the sentence that the legislature has dictated cannot be altered, suspended, or deferred. For Mr. Jones‘s crime, the New Mexico legislature has not established a mandatory minimum sentence. Accordingly, U.S.S.G. § 5G1.1(b) is inapplicable and the sentencing court could sentence Mr. Jones according to the Guidelines generally. And where the sentence intended by the sentencing court fell within the Guidelines range, there is nothing that would prevent the court from correcting
Mr. Jones‘s sentence on remand. Accordingly, the miscalculation by the sentencing court was not harmless.
III. CONCLUSION
We VACATE Mr. Jones‘s sentence and remand with instructions to the district court to resentence him.
21