                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4375



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MELVIN MONROE DEAL,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (CR-03-10-1)


Submitted:   April 6, 2005                    Decided:   May 3, 2005


Before MICHAEL and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Andrew B. Banzhoff, Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Donald D. Gast,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Melvin Monroe Deal appeals his conviction and sentence

imposed by the district court under the North Carolina Indecency

With Children statute, N.C.G.S. § 14-202.1, and pursuant to the

Assimilative    Crimes   Act    (ACA),   18    U.S.C.    §   13   (2000).    The

Government asserts Deal’s waiver of appellate rights in his plea

agreement precludes Deal’s challenges.            We previously denied the

Government’s motion to dismiss on this ground and we accordingly

consider the appeal on its merits.             We note, however, that the

transcripts of the Rule 11 and sentencing hearings and the other

materials before the court do not indicate Deal preserved the

claims he now raises for appellate review.          Accordingly, we review

for plain error.      See United States v. Olano, 507 U.S. 725, 732-34

(1993).

          Deal’s first contention is that the assimilation of the

state offense was improper under the ACA because his conduct was

punishable under the federal disorderly conduct regulation. See 36

C.F.R. § 2.34.     While we conclude the federal disorderly conduct

regulation    could   apply    to   Deal’s    conduct,   we   also   find   that

assimilation was proper because there is no indication the federal

regulation was intended to preclude assimilation of a state statute




                                     - 2 -
that proscribes the particular egregious conduct of which Deal was

convicted.*

            Deal’s second claim challenges the three-year term of

supervised release imposed by the district court.                   Deal asserts

this part of his sentence violates the ACA because it is not a

“like punishment” under state law and because the sentence could

result in Deal serving a period of incarceration longer than the

maximum   incarceration      sentence    authorized        by   state    law.      We

conclude that the imposition of a term of supervised release was in

accord    with   federal     policy   and     does   not    violate     the     “like

punishment” requirement of the ACA.            We also conclude the term of

supervised release does not extend the sentence beyond the maximum

incarceration period permitted by state law.               See United States v.

Pierce, 75 F.3d 173, 178 (4th Cir. 1996) (noting supervised release

is not considered part of the incarceration portion of the sentence

and is thus not limited by the maximum term of incarceration).

            Accordingly, we find no plain error and affirm Deal’s

conviction and sentence.        We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials     before   the    court   and     argument     would   not    aid     the

decisional process.

                                                                          AFFIRMED


     *
      Deal pleaded guilty to the offense.  He admits that he
masturbated in view of minors at an outdoor swimming area and
campground.

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