                  UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                             No. 96-50037


                    United States of America,

                                                 Plaintiff-Appellee,


                                VERSUS


                           Antonio A. Teran,

                                                 Defendant-Appellant.




           Appeal from the United States District Court
                 for the Western District of Texas
                           October 18, 1996


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



  *
     District Judge of the Eastern District of Texas, sitting by
designation.
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 art. 6701L-1 (repealed) (West 1992 & Supp. 1996).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


                                             2
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


                                       3
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


  1
      The Government contends that the issue of the magistrate judge’s
subject matter jurisdiction over the underlying conviction cannot be raised
in the context of an appeal of a probation revocation, but must be attacked
in a 28 U.S.C. § 2255 proceeding. This Court has previously addressed a
seemingly comparable problem in United States v. Francischine, in which we
decided that the validity of an underlying conviction cannot be challenged
in a probation revocation proceeding, but must be collaterally attacked in
a § 2255 proceeding. 512 F.2d 827 (5th Cir.), cert. denied, 423 U.S. 931,
96 S. Ct. 284, 46 L. Ed. 2d 261 (1975). However, that decision addressed
the appropriateness of a § 2255 proceeding for reasons other than
jurisdiction. Id. at 828-29. The question to be examined in Francischine
regarding the validity of the underlying conviction did not require a
revoking court to examine the competency of the convicting court to hear
the original case. A thorough search does not reveal a decision in any
circuit holding that the jurisdiction issue must be brought in a § 2255
proceeding. We decline to address this issue and assume for purposes of
this case that the appellant is not barred from raising the issue of
jurisdiction. The appellant loses either because his collateral attack
lacks merit or because he should attack the jurisdiction in a different
proceeding.

                                       4
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


                                         5
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. Vaughn, 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


                                        6
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


                                          7
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 to                        be a valid basis for

exceptions to full assimilation of state law. In Pinto, Vaughn and

Smith, supra, the courts each rejected state provisions requiring

minimum incarceration prior to any parole, reasoning that the state

minimum-confinement provision conflicted with federal policy.                      See

also   United      States   v.    Pierce,       75    F.3d    173   (4th   Cir.   1996)

(affirming imposition of supervised release for a term beyond the

maximum time allowed by state law for incarceration); United States

v.   Reyes,   48    F.3d    435   (9th   Cir.        1995)   (affirming    supervised


                                            8
release, an option unavailable under state law).

     Federal law defines misdemeanor and felony according to the

punishment carried by the offense.        See 18 U.S.C. § 1.   In this

case, the magistrate judge specifically stated prior to sentencing

that the maximum sentence that he could impose was one year of

imprisonment, a period of time falling within his jurisdiction.      A

maximum of one-year imprisonment was not a punishment range that

was violative of the ACA’s “like” punishment clause.      On the basis

of the state punishment range’s conflict with federal policy, an

exception to the ACA’s customary full assimilation of state law is

permitted.   The magistrate judge properly had jurisdiction over

Teran’s conviction.


                   B.   Information versus Indictment

     Teran argues that the convicting court’s failure to obtain an

explicit waiver of indictment deprived the court of jurisdiction to

accept his guilty plea.     In the absence of a valid waiver, the lack

of an indictment in a felony prosecution is a defect affecting the

jurisdiction of the convicting court.       United States v. Moore, 37

F.3d 169, 173 (5th Cir. 1994). Because it implicates jurisdiction,

whether an indictment was required is a question that this Court

reviews de novo.    See United States v. Gaudet, 81 F.3d 585, 589 n.4

(5th Cir. 1996).

     Appellant’s argument fails.        If the offense for which Teran

was convicted was a felony, then an indictment or a waiver of an

                                    9
indictment would have indeed been required.             See Fed. R. Crim. P.

7(b). However, since the offense was a misdemeanor, the conviction

could proceed by information as it did.


            C.     Sufficiency of the Evidence for Revocation

      Teran contends that the evidence was insufficient to find that

he   had    been    driving   while     intoxicated   in   violation        of   the

conditions of his probation and points to the fact that a jury

acquitted him of his 1994 state DWI charge.            To obtain reversal of

a revocation order on the basis of evidentiary insufficiency, an

appellant must show clearly that the revoking court abused its

discretion.        United States v. King, 990 F.2d 190, 193 (5th Cir.),

cert. denied, 510 U.S. 881, 114 S. Ct. 223, 126 L. Ed. 2d 179

(1993).

      The    revoking    court   must    base   a   finding     of    a   probation

violation on a preponderance of the evidence.                 United States v.

Grandlund, 71 F.3d 507, 509 n.2 (5th Cir. 1995), cert. denied, --

U.S.--, 116 S. Ct. 1031, 134 L. Ed. 2d 108 (1996),                   clarified by,

77 F.3d 811 (5th Cir. 1996).          A review of the evidence demonstrates

that the revoking court properly found that it was more likely than

not that Teran committed the 1994 state DWI offense while on

probation.       At the revocation hearing, he admitted to consuming

three beers a few hours before driving.             There was    testimony that

his breath smelled of alcohol, that he performed poorly on field

sobriety tests, and that he declined to take a breathalyser test.

                                         10
The   revoking        court    did   not    believe      Teran's       explanations    of

innocence       and     explicitly         stated,       "his      testimony      lacked

credibility."         Regardless of his acquittal by a jury, the revoking

court had a preponderance of evidence before it to support the

finding of this probation violation.


           D.   Consideration of Statutorily-Required Factors

      Teran argues that the magistrate judge did not properly

consider the factors set forth in 18 U.S.C. § 3553(a) in revoking

probation and imposing a sentence of incarceration. We will uphold

a sentence unless it (1) was imposed in violation of law, (2)

resulted from an incorrect application of the guidelines, (3) was

outside the guideline range and is unreasonable, or (4) was imposed

for   an   offense      for    which   there       is    no    applicable   sentencing

guideline and is plainly unreasonable.                   United States v. Mathena,

23 F.3d 87, 89 (5th Cir. 1994).                  Because there are no applicable

guidelines      for    sentencing      after      revocation      of    probation,    see

U.S.S.G. Ch.7, Pt.A.1 (“At this time, the Commission has chosen to

promulgate      policy       statements     only.”),      we    will    uphold   Teran’s

revocation and sentence unless it is in violation of law or is

plainly unreasonable.           See Mathena, 23 F.3d at 89.             In making those

determinations,         we    review   the       lower   court’s       compliance    with

sentencing statutes de novo.               Id.

      After finding that a defendant has violated a condition of

probation, a court must consider the factors listed in 18 U.S.C. §

                                            11
3553(a) in deciding whether to revoke probation and in determining

the particular sentence to be imposed.                        18 U.S.C. § 3565(a).

Section 3553(a) enumerates the following factors: (1) the nature

and    circumstance         of      the     offense,      and      the    history      and

characteristics of the defendant; (2) the need for the sentence to

reflect the seriousness of the crime, provide adequate deterrence,

protect the public from the defendant, and provide effective

correctional treatment; (3) the kinds of sentences available; (4)

the types of sentences and the sentencing range established for the

offense; and      (5)      applicable       policy    statements.          18    U.S.C.   §

3553(a).     Teran         argues    that    the     record     does     not    reflect   a

consideration of the factors by the magistrate judge.                           He argues

that consideration of the factors might have produced a lesser

sentence,    or       an   alternative       punishment       to    his    sentence       of

confinement.

       Implicit consideration of the § 3553 factors is sufficient.

See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).

The revoking court provided an explicit explanation for imposing

prison time at the revocation and sentencing hearing, pointing out

the severe risks and consequences of driving while intoxicated.

Also, the court listened to arguments for prison alternatives and

then responded and rejected such alternatives. The court evidenced

its consideration of the sentencing guidelines' policy statements

in    imposing    a    six-month      sentence       of   incarceration         from   the



                                             12
sentencing guidelines' range of three to nine months.               In its

denial of Teran's motion for release pending appeal, the revoking

court explicitly stated that it considered all of the factors at

the time of revocation and sentencing.

     The magistrate judge did much more than implicitly consider

the § 3553 factors and the appellant’s argument on this issue

fails.


                               CONCLUSION

     For   the   foregoing   reasons,   we   AFFIRM   the   lower   court’s

probation revocation and sentence.




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