                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-5195



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


JOSIAH CHARLES MCMANUS,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:06-cr-00024)


Argued:   May 25, 2007                       Decided:   June 4, 2007


Before TRAXLER and KING, Circuit Judges, and T. S. ELLIS, III,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.


Reversed and remanded by unpublished per curiam opinion. Senior
Judge Ellis wrote a concurring opinion.


ARGUED: David Grant Belser, BELSER & PARKE, Asheville, North
Carolina, for Appellant.    Donald David Gast, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Gretchen C. F. Shappert,
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Josiah McManus was charged under the Assimilative Crimes Act

(“ACA”), see 18 U.S.C.A. § 13 (West 2000), with speeding to elude

arrest while driving on the Blue Ridge Parkway near Asheville.                He

pleaded   guilty    and   was    sentenced   to   15    months   imprisonment.

McManus appeals, challenging the length of his sentence.

     “The ACA provides that in the absence of a governing federal

statute, a person who commits a state crime on a federal enclave

‘shall    be   guilty   of   a   like   offense   and    subject   to   a   like

punishment.’”      United States v. Pierce, 75 F.3d 173, 176 (4th Cir.

1996) (quoting 18 U.S.C.A. § 13(a)).              Accordingly, a defendant

prosecuted under the ACA “may be sentenced only in the way and to

the extent that the person could have been sentenced in state

court.     For instance, a term of imprisonment imposed for an

assimilated crime may not exceed the maximum term established by

state law.”     Id. (citations and internal quotation marks omitted).

     We agree with McManus that for purposes of this case, the

state maximum sentence was the maximum sentence that could have

been imposed on him by a state-court judge. Under North Carolina’s

structured sentencing scheme, a defendant with McManus’s criminal

history could have been sentenced to a maximum of 10 months.                See

N.C. Gen. Stat. § 15A-1340.17(d) (2005).          The government, however,

contends that the state statutory maximum for purposes of the ACA

is 30 months, not 10 months, because the relevant North Carolina


                                        2
statute permits a 30-month sentence for a defendant in the highest

criminal history category.            We disagree.    Even if Blakely’s1 Sixth

Amendment requirements were satisfied, a North Carolina sentencing

court        would   have   no   discretion   to   sentence   a   defendant   with

McManus’s criminal history score to anything above the aggravated

maximum sentence of 10 months.                 See N.C. Gen. Stat. § 15A-

1340.13(e) (2005) (“The court may deviate from the presumptive

range of minimum sentences of imprisonment specified for a class of

offense and prior record level if it finds . . . that aggravating

or mitigating circumstances support such a deviation.                 The amount

of the deviation is in the court’s discretion, subject to the

limits specified in the class of offense and prior record level for

mitigated and aggravated punishment.” (emphasis added)).                 Because

10 months is the maximum that McManus could have received under

state law, we believe 10 months is the maximum state sentence for

purposes of sentencing under the ACA.              See Pierce, 75 F.3d at 176

(explaining that a defendant prosecuted under the ACA “may be

sentenced only in the way and to the extent that the person could

have been sentenced in state court” (emphasis added and internal

quotation marks omitted)).

     We recognize, of course, that federal courts are not required

to assimilate “every incident of a state’s sentencing policy,”

United States v. Harris, 27 F.3d 111, 115 (4th Cir. 1994), and that


        1
            Blakely v. Washington, 542 U.S. 296 (2004).

                                          3
state sentencing provisions that conflict with federal sentencing

policy will not be assimilated, see Pierce, 75 F.3d at 176.

Contrary    to   the    government’s    suggestion,      however,      we    cannot

conclude that North Carolina’s method for calculating criminal

history points conflicts with federal sentencing policy simply

because McManus would have received a higher criminal history score

under the federal guidelines.          Both the federal and state schemes

recognize     that     repeat    offenders    should    receive      more    severe

sentences; that the federal and state schemes calculate the scores

differently does not mean that the state scheme conflicts with a

federal sentencing policy.

       Under North Carolina’s sentencing scheme, the maximum sentence

in   any   given     case   is   dependent     upon    the   existence      of   any

aggravating or mitigating factors and the defendant’s criminal

history score. If we are not required to assimilate those portions

of the North Carolina scheme, then federal courts could impose

sentences that could not be imposed in state court.                  The ACA does

not require a federal sentence to be identical to the sentence that

would be imposed under state law, but it must be similar.                        See

Pierce, 75 F.3d at 176.          We cannot conclude that a sentence that

would be illegal under state law is nonetheless a “like sentence”

within the meaning of the ACA.              See United States v. Young, 916

F.2d   147,   150    (4th   Cir.    1990)     (explaining     that    “the    ‘like

punishment’ requirement of the [ACA] mandates that federal court


                                        4
sentences for assimilated crimes must fall within the minimum and

maximum terms established by state law, and that within this range

of discretion federal judges should apply the Sentencing Guidelines

to the extent possible” (emphasis added)); United States v. Garcia,

893 F.2d 250, 254 (10th Cir. 1989) (“[T]he [ACA] requires courts to

impose sentences for assimilative crimes that fall within the

maximum and minimum terms established by state law.       However,

within the range of discretion permitted to a state judge, a

federal judge should apply the federal sentencing guidelines to the

extent possible.” (emphasis added)).

     Accordingly, we conclude that the maximum sentence under North

Carolina law was 10 months.   Because the sentence imposed by the

district court exceeded the maximum sentence available under state

law, we reverse McManus’s sentence and remand for re-sentencing

consistent with this opinion.2

                                             REVERSED AND REMANDED




     2
      We reject the government’s contention that this issue was not
raised below and must therefore be reviewed for plain error only.
The PSR calculated McManus’s sentence under the North Carolina
Structured Sentencing Act, counsel for McManus argued for a
sentence within the presumptive range of the Structured Sentencing
Act, and counsel for the government argued that the court was bound
only by the maximum sentence (30 months) that could be imposed on
any defendant under North Carolina law.       We believe this is
sufficient to preserve the issue of what the maximum sentence is
under North Carolina law and thus the maximum to which McManus
could be sentenced under the ACA.

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ELLIS, Senior District Judge, concurring:

     I am pleased to concur in the result reached in the per curiam

opinion,   but   I   nonetheless   consider     it   necessary   to     write

separately to underscore the narrow range of circumstances in which

this holding would govern.

     Analysis must begin with the settled principle, acknowledged

in the per curiam opinion, that “the term ‘like punishment,’ as

used in the ACA, requires only that the punishment be similar, not

identical.” United States v. Pierce, 75 F.3d 173, 176 (4th Cir.

1996).   Moreover,   “[t]he   phrase    ‘like   punishment,’     does    not

encompass every incident of a state’s sentencing policy.” United

States v. Harris, 27 F.3d 111, 115 (4th Cir. 1994). Thus, federal

courts acting pursuant to the ACA are not bound by state rules of

evidence or state law regarding parole, probation, good time

credits, or special assessments. United States v. Slatkin, 984 F.

Supp. 916, 918 (D. Md. 1995); see e.g., Kay v. United States, 255

F.2d 476 (4th Cir. 1958); Harris, 27 F.3d 111. This is so because

“the Sentencing Guidelines apply to convictions under § 13 [the

ACA].”   Harris, 27 F.3d at 115.    Therefore, to give proper effect

to federal sentencing policies and to satisfy the “like punishment”

requirement of the ACA, we have held that a federal court imposing

an ACA sentence must adhere to the state’s statutorily prescribed

minimum and maximum sentence, but within this range, the court must

apply the Guidelines. United States v. Young, 916 F.2d 147, 150


                                    6
(4th Cir. 1990). This means that “[t]he court is required to

determine if there is a sufficiently analogous offense guideline,

and, if so, to apply the guideline that is most analogous.”

U.S.S.G. Manual § 2X5.1 comment. On the other hand, where “there is

no sufficiently analogous guideline, the provisions of 18 U.S.C. §

3553 control.” Id., see Harris, 27 F.3d at 115. Significantly, in

applying the Guidelines to determine the appropriate sentence

within the state’s statutorily prescribed range, a federal court

“will not assimilate a state sentencing provision that conflicts

with federal sentencing policy.” Pierce, 75 F.3d at 176. Put

simply, “when state law provisions conflict with federal policy,

federal policy controls.”   Id.1

     It follows from these well-settled principles that where a

district court, acting pursuant to the ACA, finds that there is a

sufficiently analogous offense guideline, which is higher than the



     1
      Such conflicts arise where, as here, the state’s criminal
history calculation differs markedly from that of the Guidelines.
For example, in this case, under the North Carolina Structured
Sentencing Act, defendant had zero criminal history points, and
thus, was within criminal history category I, while under the
Guidelines defendant’s prior criminal offenses amounted to 4
criminal history points, placing him in criminal history category
III. This significant disparity reflects the difference between
federal sentencing policies and state sentencing policies, and
underscores the importance of not assimilating state sentencing
guidelines in toto because of the potential for conflict with
federal sentencing policies. See United States v. Clark, 361 F.
Supp. 2d 502, 508 (E.D. Va. 2005) (holding that “statutes
expressing [state] sentencing policies do not override the clearly
expressed federal policies contained in the United States
Sentencing Guidelines”).

                                   7
state sentencing guidelines’ presumptive sentence, and thus in

conflict   with   the   state’s   presumptive   sentence,   the    federal

Guidelines control and the federal court may impose a sentence

within the state statutory maximum for the offense charged, but

higher than the state sentencing guidelines’ presumptive sentence.

See Pierce, 75 F.3d 173.2 For example, in this case had the

district court applied the Guidelines and found that an analogous

offense guideline advised a sentence of 10 to 15 months, the court

would not have been bound by the 10 month maximum required by the

state’s sentencing guidelines. On the other hand, where, as here,

no   sufficiently   analogous     offense   guideline   applies,   it   is

appropriate for a federal court, acting pursuant to the ACA, to

follow the state’s guidelines range.




     2
      See also United States v. Coleman, 38 F.3d 856 (7th Cir.
1994) (rejecting appellant’s claim that state characterization of
“crime of violence” should govern in an ACA case, rather than the
Guidelines’ definition, because “the defendant was convicted of a
federal crime for which the Guidelines govern sentencing”); United
States v. Garcia, 893 F.2d 250 (10th Cir. 1989) (affirmed a
sentence that fell within the state’s maximum term and was imposed
using a Guidelines calculation, rather than the state’s sentencing
guidelines); United States v. Norquay, 905 F.2d 1157 (8th Cir.
1990) (construing Major Crimes Act (“MCA”), 18 U.S.C. § 1153,
which, like the ACA, assimilates state criminal law and requires
federal courts to impose “the same law and penalties,” to require
that the Guidelines, and not state sentencing guidelines, apply to
determine the appropriate sentence within the state’s statutorily
prescribed range); United States v. Pluff, 2001 U.S. App. LEXIS
18272 (9th Cir. 2001) (overturning prior precedent in MCA case that
held that “state sentencing schemes, rather than the federal
sentencing guidelines, apply in [MCA] prosecutions for crimes that
must be ‘defined and punished’ according to state law”).

                                     8
     In sum, where, as is not here the case, an applicable federal

Guidelines range conflicts with the state sentencing guidelines

range, I would conclude that the Guidelines, including its criminal

history calculation, would trump the state’s sentencing guidelines.




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