                                                                                    FILED
                                                                        United States Court of Appeals
                                         PUBLISH                                Tenth Circuit

                       UNITED STATES COURT OF APPEALS                          April 16, 2019

                                                                            Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                              Clerk of Court
                         _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                               No. 18-2129

 ARNOLD JONES,

       Defendant - Appellant.
                      _________________________________

                      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.

C. Paige Messec, Assistant United States Attorney (John C. Anderson, United States
Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff – Appellee.
                        _________________________________

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 18 U.S.C. § 1153(b)

and N.M. Stat. § 30-6-1.

       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

                                              2
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—18 U.S.C. § 13 (the

“Assimilative Crimes Act” or “ACA”), 18 U.S.C. § 1153 (the “Indian Major Crimes Act”

or “IMCA”), and 18 U.S.C. § 3551 of the Sentencing Reform Act (“Sentencing Act”)—

and relevant case law in the federal circuit courts. After that discussion, we turn to Wood,

and explain how New Mexico’s sentencing scheme is different from the Oklahoma

sentencing scheme at issue there. Ultimately, we determine that Wood does not dictate

the result here because New Mexico does not impose a mandatory minimum sentence on

the crime of conviction. Thus, the district court’s error was not harmless.

                                  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


                                             3
of the United States.” 18 U.S.C. § 1153(a). But if the crime committed “is not defined

and punished by Federal law . . . [it] shall be defined and punished in accordance with the

laws of the State in which such offense was committed as are in force at the time of such

offense.” Id. § 1153(b). In short, for nonfederal crimes committed on tribal land, federal

law incorporates state criminal law. Here, New Mexico’s child abuse statute, § 30-6-1,

was enforced against Mr. Jones in federal court. And because there is no federal sentence

for child abuse, the court was required to punish Mr. Jones “in accordance with the laws

of” New Mexico. See 18 U.S.C. § 1153(b).

       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.




       1
         In requesting a sixty-month sentence, the government sought a sentence below
the six-year sentence it now alleges is the minimum sentence available under New
Mexico law. But the government correctly notes it cannot concede an illegal sentence.
See United States v. Moyer, 282 F.3d 1311, 1318–19 (10th Cir. 2002); United States v.
Johnson, 973 F.2d 857, 859–60 (10th Cir. 1992).

                                             4
       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

and remand for the district court to resentence him. But the government argues this

avenue is unavailable because Mr. Jones was subject to a six-year mandatory minimum

sentence under New Mexico law. And because the erroneous sentence is below six years,

the government argues Mr. Jones cannot show harm. For the reasons we now explain, we

disagree.



                                              5
                                         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.” 18 U.S.C. § 13(a). Thus, the ACA

performs a gap-filling function by “borrowing state law” to bolster the “federal criminal




       2
         “A federal enclave is created when a state cedes jurisdiction over land within its
borders to the federal government and Congress accepts that cession. These enclaves
include numerous military bases, federal facilities, and even some national forests and
parks.” Allison v. Boeing Laser Tech. Servs., 689 F.3d 1234, 1235 (10th Cir. 2012).
Under the Federal Enclave Act, Congress mandated that general laws of the United States
applicable in federal enclaves also apply in Indian country, except where the offense was
committed by one Indian against the person or property of another Indian. 18 U.S.C.
§ 1152. Then, in the Indian Major Crimes Act, 18 U.S.C. § 1153, Congress extended
jurisdiction over Indians in Indian country for the commission of specific “major” crimes
against other Indians. The federal government prosecuted Mr. Jones for his crime
committed in Indian country under the Indian Major Crimes Act.

                                                 6
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.” 18 U.S.C. § 1153(a). The first provision of the IMCA

is concerned with national uniformity. It provides that 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.” Id. But the second provision establishes the ACA-

analogous, gap-filling function discussed by the Ninth Circuit in Pluff: If the crime

committed “is not defined and punished by Federal law . . . [it] shall be defined and

punished in accordance with the laws of the State in which such offense was committed

as are in force at the time of such offense.” Id. § 1153(b). In short, for nonfederal crimes

committed by Indians on tribal land, federal law incorporates state criminal law. Here,

New Mexico’s child abuse statute, § 30-6-1, was enforced against Mr. Jones in federal

court under the second provision of the IMCA because the crime was committed on a

reservation and child abuse is not defined by federal law.



                                              7
       “[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,” 18 U.S.C. § 13(a) (emphasis added), the text of the IMCA

requires that the crime be “defined and punished in accordance with the laws of the State

in which such offense was committed,” id. § 1153(b). This distinction has caused

historical divisions among the circuits.

       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.” 18 U.S.C. § 3551(a)

(1988). Although the ACA provided that the federal defendant “shall be guilty of a like

offense and subject to a like punishment,” 18 U.S.C. § 13(a), it was uncertain whether the

Sentencing Act governed the ACA or if the ACA fit into the Sentencing Act’s exception

as a sentencing scheme “otherwise specifically provided.”3 We resolved this question,



       3
        In Garcia, it was unclear “whether the district court based its sentence on the
[IMCA] or on the [ACA],” but because both parties “treat[ed] the sentence as having
been based on the [ACA]” and because “the sentence would be the same under either
                                              8
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.

       The Ninth Circuit held that the Guidelines did not apply to the IMCA and

distinguished Garcia based on the divergent language of the two statutes. United States v.




[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.

                                              9
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, 18 U.S.C.

§ 3551(a). The Ninth Circuit did not “pass upon the wisdom of the Garcia holding”

because that holding was based on the “like punishment” language of the ACA, while the

IMCA imposes a stricter requirement that courts “define and punish a non-federally-

defined criminal offense in accordance with state law.” Id. The Ninth Circuit then

declined to adopt the Eighth Circuit’s reasoning in Norquay, explaining that it chose “not

‘to reduce the states’ role in determining punishment to merely establishing minimum

and maximum sentences.’” Id. (quoting Norquay, 905 F.2d at 1161 (Gibson, J.,

dissenting)). The court explained:

     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, § 3351(a) of the Sentencing Act stated that “[e]xcept as otherwise

specifically provided, a defendant who has been found guilty of an offense described in


                                            10
any Federal statute . . . shall be sentenced in accordance with the provisions of this

chapter.” Garcia, 893 F.2d at 253 (quoting 18 U.S.C. § 3551(a) (1988)). Wrestling with

this language, the courts in Garcia, Norquay, and Bear considered whether the

Guidelines apply to offenses described by the ACA and IMCA—unquestionably federal

statutes—despite the language of those statutes pointing to state law as providing the

relevant sentencing law. But the Sentencing Reform Act was amended in 1990 to

explicitly include § 13 (the ACA) and § 1153 (the IMCA): “Except as otherwise

specifically provided, a defendant who has been found guilty of an offense described in

any Federal statute, including sections 13 and 1153 of this title, . . . shall be sentenced in

accordance with the provisions of this chapter.” 18 U.S.C. § 3551(a) (1990) (emphasis

added).

       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 Country.” Wood, 386 F.3d at

962. Oklahoma law then provided that second-degree burglary was punishable by

imprisonment “not exceeding seven (7) years and not less than two (2) years.” Id. (citing

                                              11
21 Okla. Stat. § 1436(2)). Thus, the applicable Oklahoma law in Wood contained an

express minimum mandatory sentence. Cf. Stringfellow v. State, 744 P.2d 1277, 1280

(Okla. Crim. App. 1987) (explaining that the “minimum sentence” for first-degree

burglary is not less than seven years); Walker v. State, 738 P.2d 181, 183 (Okla. Crim.

App. 1987) (“Appellant was sentenced within the limits of the [burglary after a prior

conviction] statute in which the minimum sentence is set at ten years imprisonment.”).

But Oklahoma law also provided a suspension provision that granted state courts

discretion to suspend a sentence of imprisonment with or without the imposition of

probation. See Wood, 386 F.3d at 962. Although the federal guideline range was less than

the state two-year minimum sentence, we held the guideline range had to yield to the

state mandatory minimum sentence. Id. at 962–63.

       We explained that § 3551(a) requires violators of the IMCA to be “sentenced in

accordance with the provisions of this chapter” and that § 3553(b) “of the same chapter

directs the imposition of a criminal sentence in accordance with the Guidelines.” Id. at

962 n.2. Under the Guidelines, “[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.” Id. at 962 (quoting U.S.S.G.

§ 5G1.1(b)). Applying Garcia to the IMCA for the first time, we concluded that the

IMCA incorporated the “maximum and minimum terms established by state law.” Id. at

963 (quoting Garcia, 893 F.2d at 254). Thus, because the IMCA incorporated the

maximum and minimum state law sentences and because the Guidelines required the

imposition of a minimum statutory sentence when the guideline range falls below that

                                            12
minimum, we held that under § 1153(b), the Guidelines required the district court to

impose a “sentence between the minimum and maximum sentences state law establishes

for th[e] particular crime.” See id. at 962–63.

       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 § 3351(a), the Ninth Circuit also reconsidered its

previous position. See Pluff, 253 F.3d at 493. The court explained that because the

Guidelines “now specifically apply to [I]MCA prosecutions,” Bear “has no precedential

value in cases involving crimes committed after the [1990] amendment.” Id. But the

Ninth Circuit does not appear to have adopted wholesale the conclusions reached in

Norquay, Garcia, or Wood. See id. at 493–94. Instead, it concluded that “the [I]MCA’s

                                             13
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.




                                              14
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.” N.M. Stat. Ann. § 31-18-

15(A)–(B). In turn, the New Mexico Criminal Sentencing Act4 permits the court to alter

the basic sentence in several ways. First, New Mexico courts may reduce a “basic

sentence as prescribed in [§ 31-18-15] upon . . . a finding by the judge of any mitigating

circumstances surrounding the offense or concerning the offender.” Id. § 31-18-15.1(A).

But the reduction “in no case shall . . . exceed one-third of the basic sentence.” Id.

§ 31-18-15.1(G). That prohibition is more flexible than it at first appears as to some

crimes, however, because New Mexico law also provides that:

       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 the public and the individual
          are evaluated.




       4
       The Criminal Sentencing Act encompasses “Chapter 31, Article 18” of the New
Mexico annotated statutes. N.M. Stat. Ann. § 31-18-12.

                                             15
§ 31-20-3. Accordingly, in New Mexico, the sentencing court can impose the basic

sentence, impose a sentence one-third lower than the basic sentence, suspend all or part

of the sentence imposed, or defer imposition of the sentence entirely.

        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 N.M. Stat. Ann. § 31-20-3).

Under § 31-20-3, that discretion includes “enter[ing] an order suspending in whole or in

part the execution of the sentence” when the trial court determines that such a suspension

satisfies “the ends of justice” and serves “the best interest of the public as well as the

defendant.” N.M. Stat. Ann. § 31-20-3(B).

       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 § 31-20-3. See N.M. Stat. Ann.

§ 31-20-5 (“When a person has been convicted of a crime for which a sentence of

imprisonment is authorized and when the . . . district court has deferred or suspended

[that] sentence, it shall order the defendant to be placed on probation for all or some

portion of the period of deferment or suspension . . . .”). In contrast, when a sentence is

deferred by a New Mexico court, it is possible the defendant will never be sentenced at

all. See United States v. Reese, 326 P.3d 454, 459 (N.M. 2014) (speaking of deferment of

criminal sentences: “[F]or less serious felonies, the Legislature provided courts with an

option, one which t[akes] place after plea or conviction but before any sentence [is]

imposed. Deferment, if successfully completed, would result in no actual sentence being

                                              16
imposed and ultimately in a dismissal of the charges.”); see also United States v. Reese,

505 F. App’x 733, 735 (10th Cir. 2012) (unpublished) (noting that “[w]hen the state court

entered a conviction pursuant to the parties’ plea agreement, it deferred imposition of [the

defendant’s] sentence for eighteen months” and when the defendant “completed this

period of deferred adjudication without incident, the court dismissed the criminal

charge”).

       When the New Mexico courts suspend or defer a sentence, with or without

probation, they are not required to attach any conditions. See N.M. Stat. Ann. at

§ 31-20-6. New Mexico courts have discretion to attach “reasonable conditions as [they]

may deem necessary to ensure that the defendant will observe the laws,” but there is no

requirement that they do so. Id. In short, although New Mexico law provides a specific

sentence for each class of felony, state courts enjoy broad discretion to depart from those

basic sentences and there is no requirement that the court impose any period of

incarceration.

       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; N.M. Stat. § 30-6-1(D)–(E); id. § 31-18-15(A)(7) (imposing a nine-year sentence

for second degree felonies). Under §§ 31-18-15.1(A)(1), 31-18-15.1(G), a New Mexico

sentencing court could reduce his basic sentence by one-third, or down to six years, if it

made a finding of “any mitigating circumstances.” N.M. Stat. Ann. § 31-18-15.1. But that

six-year sentence is not the lowest sentence available under New Mexico law. If Mr.

Jones were sentenced by a New Mexico court, that court could further reduce the time

                                            17
Mr. Jones actually served under the state suspension provisions by imposing the

appropriate basic sentence (between nine and six years, depending on the reduction

applied after finding a mitigating factor) and then “enter[ing] an order suspending in

whole or in part the execution of th[at] sentence.” See id. § 31-20-3. Or the state court

could defer sentencing entirely. Id. The state court would then be free to impose

probation or attach reasonable conditions to the suspension of his sentence, or not. See id.

§§ 31-20-5, 31-20-6. Thus, under the New Mexico sentencing scheme, Mr. Jones would

not be required to serve six years—he would not be required to serve any period of

incarceration or even to receive any sentence at all.

       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.” 21 Okla. Stat. § 1436(2) (2004) (emphasis added).

In contrast, New Mexico defines a minimum mandatory sentence differently under its

state law.

       Important for our purposes, the New Mexico legislature has not dictated that a

person who violates N.M. Stat. § 30-6-1 must “serve no less than” any particular sentence

because New Mexico courts do not interpret the state law as imposing a minimum

mandatory sentence in every instance. In State v. Martinez, 966 P.2d 747 (N.M. 1998),

the defendant pleaded guilty to his third offense of driving while intoxicated. The state

                                             18
magistrate sentenced the defendant to 364 days in jail, suspending all but 90 days of the

sentence. Martinez, 966 P.3d at 747. The court later granted the defendant credit toward

that 90 days based on the defendant’s participation in an alcohol treatment program. Id.

Because the unsuspended 90 days of jail time was the minimum mandatory sentence

imposed by the legislature, the New Mexico Supreme Court held that the sentencing

court improperly substituted participation in the treatment program for incarceration. Id.

at 748. Relevant here is the supreme court’s discussion of the New Mexico sentencing

scheme.

       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 N.M. Stat. § 30-6-1 cannot be altered, suspended,


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or deferred, there is no minimum term established by New Mexico law. Thus, Mr. Jones

is correct that New Mexico does not impose a six-year mandatory minimum sentence for

his crime of conviction.

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




       5
        Oklahoma has since amended its sentencing scheme, removing the mandatory
minimum sentence for the crime of conviction in Wood. 21 Okla. Stat. § 1436(2) (2018)
(providing that “Burglary in the second degree [is punishable by imprisonment] not
exceeding seven (7) years”).

                                             20
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.




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