                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 97-4216.

                        UNITED STATES of America, Plaintiff-Appellee,

                                                  v.

                           Diane M. GASKELL, Defendant-Appellant.

                                            Feb. 2, 1998.

Appeal from the United States District Court for the Southern District of Florida. (No. 94-10011-
CR-SH), Shelby Highsmith, Judge.

Before DUBINA and BARKETT, Circuit Judges, and HILL, Senior Circuit Judge.

       DUBINA, Circuit Judge:

        This sentencing appeal presents the question of whether a federal judge in a case governed

by the Assimilated Crimes Act ("ACA"), 18 U.S.C. §§ 13 and 7, is permitted to sentence a defendant

to a longer term of probation than state law would permit. Although this and other circuits have

decided analogous issues under the ACA, no circuit court has ruled on this exact question. We hold

that federal judges sentencing under the ACA may exceed the state statutory maximum term for a

sentence of probation when necessary to effectuate the policies behind the federal probation statutes,

18 U.S.C. §§ 3561-66.

                                  I. FACTUAL BACKGROUND

       In 1987, Diane Gaskell ("Diane") had a son, John Doe ("Doe").1 Diane married Robert

Gaskell ("Robert") in 1989, and the couple moved with Doe, Diane's child from a previous

relationship, to the naval base in Key West, Florida, where Robert was an enlisted serviceman in the



   1
    To protect the identity of Diane Gaskell's minor son, we will refer to him as John Doe.
U.S. Navy. At the time of the marriage, Diane was pregnant with the couple's child, Kristin Michelle

Gaskell ("Kristin"). After living in Key West for several months, Robert and Diane took Doe, then

two-and-one-half years old, to the emergency room at Florida Keys Hospital in Key West for a rash

on his neck and forehead. The admitting physician noted that Doe had extensive bruising on his

cheek, under his eyes, and throughout his body, including his hip and genital area. The pediatrician

suspected sexual and physical abuse based on Doe's injuries and his vocabulary of sexually explicit

words. In response to questioning by the doctor, Diane stated that Doe had fallen to the floor from

his bed which was two feet above the floor. Robert was present but said nothing.

       The hospital notified the child protection team of Florida's Department of Health and

Rehabilitative Services ("HRS"), and Doe was temporarily removed from the Gaskells' custody and

placed with foster parents. Once in foster care, Doe made statements to his caretakers and behaved

in a manner that indicated he had been physically and sexually abused. After less than a month in

foster care, Doe was returned to his parental home pursuant to a state court order.

       On Doe's first day of school in January, 1990, his teacher noticed severe injuries to his penis

and notified HRS. HRS again removed Doe from the Gaskell residence. After a hearing, Diane was

found to be an unfit mother, and Doe was permanently removed from the Gaskell household. He

has since been legally adopted, and the Gaskells were ordered by the court to have no contact with

him.

       Dr. David L. Corwin ("Dr. Corwin"), Director of the Program on Childhood Victimization

and the Law and Director of Child Forensic Psychiatry at the University of Cincinnati, examined

Doe and reviewed his medical and psychological history. Dr. Corwin found that Doe was the victim

of traumatizing physical, sexual, and psychological child abuse and that he had been maltreated by

Diane and Robert.
       Thereafter, Diane and Robert were indicted by a federal grand jury in the Southern District

of Florida charging them with three counts of child abuse at the U.S. Naval Air Station in Key West.

Counts I and II charged the Gaskells with inflicting physical and mental injury on Doe in violation

of Florida Statutes §§ 827.04(1) and 777.011. Count III charged the Gaskells with inflicting

physical injury on Kristin. Diane and Robert were charged with the state offenses in Counts I

through III under the ACA, 18 U.S.C. §§ 13 and 7. Count IV charged Robert alone with involuntary

manslaughter in causing the death of Kristin, in violation of 18 U.S.C. § 1112.2

       Diane agreed to waive indictment and plead guilty to a one count superseding information

which charged her with misdemeanor child abuse. Specifically, the superseding information states

that Diane, by culpable negligence, inflicted and permitted the infliction of physical injuries and

mental injury to Doe, in violation of §§ 827.04(2) and 777.011 of the Florida Statutes, made

applicable to places within the special territorial jurisdiction of the United States by the ACA, 18

U.S.C. §§ 13 and 7.

                                        II. SENTENCING

       At sentencing, Diane Gaskell made several objections, including an objection to the length

of the probationary term permitted under federal law in this case. The district judge determined that

Diane's offense level was six with a criminal history category of I, such that the federal Sentencing

Guidelines imprisonment range was zero to six months. Because Diane's offense of conviction is

a Class A misdemeanor, the authorized term of probation under federal law is not more than five


   2
    Kristin died on February 10, 1990, while home alone with Robert. Kristin's autopsy report
concluded that she suffered from Whiplash Shaking Infant Syndrome and that she died from
internal head trauma. Robert's initial conviction after a jury trial for the involuntary
manslaughter of Kristin was reversed based on error in the admission of evidence and an
incorrect jury instruction. United States v. Gaskell, 985 F.2d 1056 (11th Cir.1993). The original
indictment was dismissed without prejudice, and a new indictment issued. Robert pled guilty to
Counts I and IV of the instant indictment. His sentence is presently on appeal.
years. See 18 U.S.C. § 3561(c)(2). However, under Florida law, the maximum term of incarceration

allowable for a first degree misdemeanor is one year, and the term of probation cannot exceed one

year.   Fla.Stat.Ann. § 775.082(4)(a) (West 1992);         Baldwin v. State, 558 So.2d 173, 174

(Fla.Dist.Ct.App.1990) (the term of probation cannot exceed the maximum sentence allowed under

the Florida Statutes); Williams v. State, 402 So.2d 537 (Fla.Dist.Ct.App.1981) (same).

        The district court sentenced Diane to five years probation with certain special conditions.

The court required that Diane participate in a mental health treatment program, disclose the nature

of her conviction to her employer, and refrain from engaging in any occupation involving children.

        Diane appeals the length of her probation. She contends that because Florida law would

have allowed a maximum of one year probation, her five-year probationary sentence violates the

ACA which requires that a federal defendant be "subject to a like punishment" to that which state

law would impose. 18 U.S.C. § 13.

                                              III. ISSUE

        Whether the district court erred in sentencing Diane to five years of probation for her

conviction under the ACA when the maximum term of probation available under state law was one

year.

                                  IV. STANDARD OF REVIEW

        The proper length of a sentence under the ACA is a question of law subject to de novo

review by this court. See James v. United States, 19 F.3d 1, 2 (11th Cir.1994) (stating that

interpretation of a sentencing statute is a question of law subject to de novo review); United States

v. Pompey, 17 F.3d 351, 353 (11th Cir.1994) ("The district court's interpretation of the sentencing

guidelines is subject to de novo review.").

                                         V. DISCUSSION
        Diane argues that the express terms of the ACA incorporate into federal law not only the

state offense and its elements, but also the punishment prescribed by state law. The ACA authorizes

federal courts to exercise jurisdiction over violations of state law that occur in the special maritime

or territorial jurisdiction of the United States if no federal statute proscribes such violations. 18

U.S.C. § 13. The ACA, as it read in 1989,3 provided:

               Whoever within or upon any of the places now existing or hereafter reserved or
        acquired as provided in section 7 of this title, is 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, Territory, Possession, or District
        in which such place is situated, by the laws thereof in force at the time of such act or
        omission, shall be guilty of a like offense and subject to a like punishment.

18 U.S.C. § 13(a) (emphasis added). Diane's position is that the ACA's "like punishment" language

requires a district court judge to sentence an ACA defendant within the sentence duration limits for

probation as well as incarceration.

        Prosecution under the ACA is for enforcement of federal law assimilating a state statute, not

for enforcement of state law. United States v. Brown, 608 F.2d 551, 553 (5th Cir.1979).4 The

purpose of the ACA is to provide a body of criminal law for federal enclaves by using the penal law

of the local state "to fill the gaps in federal criminal law." Id. (quoting United States v. Prejean, 494

F.2d 495, 496 (5th Cir.1974)). The government can turn to state law for prosecution only if no act

of Congress directly makes a defendant's conduct punishable. Id.

        Although no United States Court of Appeals has considered the question of whether a



   3
   The superseding information alleged that the criminal acts took place during 1989. Although
18 U.S.C. § 13 has been amended several times since 1989, the pertinent language relied upon
by Diane has not changed.
   4
    In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981)(en banc), the Eleventh Circuit
Court of Appeals adopted as binding precedent the decisions of the former Fifth Circuit issued
before October 1, 1981.
sentence of probation under the ACA can exceed that allowed by state law, two district courts have

addressed this question, reaching opposite results. Diane relies on United States v. Peck, 762

F.Supp. 315 (D.Utah 1991), in which a federal magistrate sentenced the defendant to two years

probation, a $250 fine, community service, and a special assessment for driving with a suspended

license. Under Utah law, the maximum penalty was six months imprisonment and a $1,000 fine,

and probation for the violation automatically terminated after six months. Id. at 318 Peck violated

his probation and moved to terminate revocation proceedings on the ground that the alleged

probation violations occurred after the termination of the maximum six-month probation period

allowed by state law. Id. at 317.

       The district court in Peck concluded that probation was punishment within the meaning of

the ACA's "like punishment" language and construed this language to mandate that a probationary

sentence under the ACA fall within the maximum and minimum terms permitted under state law.

762 F.Supp. at 318-19. In doing so, the district court relied on United States v. Press Publishing

Co., 219 U.S. 1, 31 S.Ct. 212, 55 L.Ed. 65 (1911) which stated that an assimilated crime may be

punished "only in the way and to the extent that it would have been punishable" in state court. Id.

at 10, 31 S.Ct. at 214.5 The court determined that it lacked subject matter jurisdiction over Peck and,

thus, could not revoke his probation, because he had already served over six months of the two-year

probationary sentence imposed by the magistrate while state law authorized only six months of

probation. Id. at 320.

       The other district court addressing the same issue relied on an exception to the ACA's



   5
    The government's brief points out that the Supreme Court in Press Publishing, 219 U.S. at
10, 31 S.Ct. at 214 interpreted the ACA as it read before a 1909 amendment that inserted the
current "like punishment" language in place of a previous "same punishment" requirement. See
Ch. 321, § 289, 35 Stat. 1145, Mar. 4, 1909.
assimilation provisions for cases in which a state penal statute conflicts with an important federal

policy. United States v. Duncan, 724 F.Supp. 286, 287-88 (D.Del.1989). In Duncan, a magistrate

judge sentenced the defendant to 18 months probation for an assimilated state charge for

alcohol-related reckless driving. Under Delaware law, the maximum probationary sentence was 12

months. Id. at 287. After Duncan served 12 months of probation, the magistrate judge revoked his

probation and sentenced him to 30 days incarceration. The district court affirmed the validity of the

18 month sentence, stressing that the policies expressed in the federal probation law preempted the

conflicting state statute. Id. at 288. The Duncan court relied on the reasoning in several circuit

court opinions dealing with federal parole policies, applying them to the context of probation. Id.

(citing United States v. Pinto, 755 F.2d 150, 154 (10th Cir.1985) (holding that a federal parole

statute preempted a state statute); United States v. Vaughan, 682 F.2d 290, 294-95 (2nd Cir.1982)

(same); United States v. Smith, 574 F.2d 988, 992 (9th Cir.1978) (same)).

       Determination of parole terms is one of the areas in which courts have held that federal law

must preempt state law assimilated under the ACA to preserve federal sentencing policy. The

Second, Ninth, and Tenth Circuits have held that the ACA does not require a federal court to follow

state law concerning parole terms. In Vaughan, the Second Circuit reasoned that federal correctional

policies must govern the term of minimum confinement and parole eligibility to preserve the

correctional administration of federal prisons. 682 F.2d at 294 (explaining that state law in areas

such as good time credits would conflict with federal policies). Although the Vaughan court

maintained that federal courts must apply state law in determining the range of years for a sentence

of incarceration, it refused to bind federal courts to follow state law regarding minimum terms of

confinement. Id.; see also United States v. Pinto, 755 F.2d at 154 (adopting the rule and reasoning

of Vaughan); United States v. Smith, 574 F.2d at 992 (stating that application of state parole policy
would be disruptive to correctional administration).

        In another departure from state sentencing law, the Fifth Circuit in United States v. Davis,

845 F.2d 94 (5th Cir.1988), held that a mandatory $50 special assessment under 18 U.S.C. § 3013

should apply to an ACA defendant despite the conflict with a $15 special assessment required under

Texas law. The court reached this conclusion after determining that the special assessment was in

fact a punishment for purposes of analysis under the ACA's "like punishment" requirement. Id. at

98. The Fifth Circuit based its holding on a finding that the term "like" merely implies similarity

and "on the principle that state laws should be assimilated through the ACA in light of federal policy

concerns." Id. at 99 (emphasis added). But see United States v. King, 824 F.2d 313, 316-17 (4th

Cir.1987) (holding that application of federal assessment which conflicts with state law violates

ACA's "like punishment" limitation); United States v. Mayberry, 774 F.2d 1018, 1021 (10th

Cir.1985) (same).

        In United States v. Teran, 98 F.3d 831, 835 (5th Cir.1996), the Fifth Circuit applied the

exception permitting federal courts to decline full assimilation of state law under the ACA when this

would conflict with federal policy in a case involving a challenge to a magistrate judge's jurisdiction.

The court rejected the defendant's argument that the ACA required classification of the underlying

offense as a felony because state law allowed a maximum penalty of two years for the charged

misdemeanor. Id. (following United States v. Kelly, 989 F.2d 162 (4th Cir.1993), in which the

Fourth Circuit relied on the ACA exception for conflicting federal policies to uphold a magistrate

judge's jurisdiction).

        Of all of the analogous circuit court cases dealing with conflicting federal and state

sentencing rules, we conclude that those in the area of supervised release provide the strongest

support for the proposition that federal probation statutes must preempt conflicting state law when
necessary to preserve an important federal policy. In United States v. Burke, 113 F.3d 211 (11th

Cir.1997), this circuit upheld a sentence of one year of imprisonment followed by one year of

supervised release in an ACA case where state law provided for a one-year maximum term of

incarceration. In a brief per curiam opinion, the Burke court adopted the reasoning of the Fourth

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

       The court in Pierce found that although a term of imprisonment imposed for an assimilated

crime may not exceed the state law maximum, federal courts are not absolutely bound by state

sentencing requirements. Id. at 176. Pierce pled guilty and received a sentence of a one-year term

of probation. A magistrate judge revoked his probation for several violations and sentenced him to

30 days imprisonment followed by a one-year term of supervised release. The Fourth Circuit held

not only that the court could impose a term of supervised release despite its unavailability under

state law, but also that a term of incarceration plus supervised release that exceeded the state

maximum term of imprisonment did not violate the ACA. Id. at 177-78. The court explained its

reasoning:

       [A] federal court will not adopt provisions of state law that conflict with federal sentencing
       policy. If limited to the maximum term of imprisonment permitted by the state, a district
       court would be unable to impose an appropriate term of supervised release upon individuals
       it determined to be in need of postincarceration supervision, even though the crime was
       committed within an area of federal jurisdiction.

Id. at 178. Despite the fact that after revocation of Pierce's probation, the maximum sentence

allowable under state law was 60 days of incarceration, the court upheld the sentence of 30 days

imprisonment followed by one year of supervised release. Id.

       The Eighth circuit followed the holding of the Fourth Circuit in Pierce with regard to the

question of imposing a term of supervised release beyond the maximum sentence of incarceration.

United States v. Engelhorn, 122 F.3d 508, 512 (8th Cir.1997) (holding that under the ACA, a term
of incarceration and supervised release may exceed the maximum term of incarceration in an

assimilated state statute).

        There are strong similarities between supervised release and probation. In United States v.

Reyes, 48 F.3d 435 (9th Cir.1995), the Ninth Circuit's comparison of probation and supervised

release led to a determination that federal supervised release and state probation were "like

punishment" under the ACA. The most significant distinction between the two sentencing options

"is that supervised release is a form of post-imprisonment supervision while probation is supervision

in lieu of incarceration." Id. at 438 (citation omitted) (involving a sentence of incarceration plus

supervised release which did not exceed the state law maximum term). However, "[i]n practice, the

similarities between the two forms of punishment are greater than the differences." Id. at 438. Both

probation and supervised release are discretionary and conditional, involve government supervision,

and make a person subject to incarceration upon revocation. Engelhorn, 122 F.3d at 512. In

addition, both serve the purpose of rehabilitation which furthers the protection of the public during

and after the term of government supervision. Id.

        Because of the strong similarities between probation and supervised release, we extend the

reasoning in Burke, Pierce, and Engelhorn to the context of probation and hold that federal

probation policy warrants an exception to the ACA's general requirement that a federal defendant

receive a sentence within the maximum and minimum terms set by assimilated state law. Burke, 113

F.3d 211 (upholding a sentence of incarceration plus supervised release that exceeds the state

maximum sentence term); Pierce, 75 F.3d at 177-78 (stressing that exceeding the state law term was

necessary to protect federal sentencing policy); Engelhorn, 122 F.3d at 512 (same). In this case,

the sentencing judge sought to provide Diane much needed supervision, in addition to ensuring that

the special probationary conditions imposed would be achieved. The court mandated that Diane
receive mental health counseling as directed by the probation office and that she refrain from

engaging in any employment involving young children. Those goals could not meaningfully be

effectuated during the course of the one-year term of probation permitted under Florida law. When

assimilated state law provisions conflict with federal policy, federal policy controls. Pierce, 75 F.3d

at 177.

          The present case is a clear example of a case in which a federal judge sentencing under the

ACA needed to depart from state law to preserve the policies behind the federal probation statutes,

18 U.S.C. §§ 3561-66.6 See Duncan, 724 F.Supp. at 288. A child was severely abused within the

territorial jurisdiction of the federal government. Although the district court could have imposed

a term of incarceration of up to six months under the federal Sentencing Guidelines, it chose instead

to impose a lengthy probationary term to further the important federal policies at stake. The district

court took into account the fact that at the time of sentencing, Diane had two other young children.

A primary purpose of probation is "rehabilitation, the accomplishment of which will serve to protect

the public." Engelhorn, 122 F.3d at 512 (quoting State v. Cummings, 262 N.W.2d 56, 61



   6
   Our holding is consistent with a 1990 amendment to 18 U.S.C. § 3551(a), a provision of the
Sentencing Reform Act of 1984. As amended, the statute reads:

                 (a) In general.—Except as otherwise specifically provided, a defendant who has
                 been found guilty of an offense described in any Federal statute, including
                 sections 13 [the ACA] and 1153 of this title, other than an Act of Congress
                 applicable exclusively in the District of Columbia or the Uniform Code of
                 Military Justice, shall be sentenced in accordance with the provisions of this
                 chapter so as to achieve the purposes set forth in subparagraphs (A) through (D)
                 of section 3553(a)(2) to the extent that they are applicable in light of all the
                 circumstances of the case.

          The underlined portion of the provision was added in 1990 and appears to indicate
          congressional intent to preempt conflicting state correctional law in ACA cases. We are
          unable to rely on this amendment in deciding this case because it became effective after
          the relevant conduct for this case had taken place. Nonetheless, it bolsters our decision.
(S.D.1978)). The five-year probationary sentence attempts to ensure the safety of any children with

whom Diane might come into contact, including her own, by requiring her to obtain needed

counseling and restricting her from employment involving young children.

        Moreover, probation allows the government to oversee Diane's rehabilitation and gives the

federal court the authority to revoke her probation and sentence her to incarceration if she violates

any of the stated conditions. 18 U.S.C. § 3565. The cases upholding a term of supervised release

beyond the maximum sentence allowed under state law would support a sentence of incarceration

if Diane's probation were revoked, despite the fact that her probationary period exceeded that

permitted under state law. See, Engelhorn, 122 F.3d at 512; Burke, 113 F.3d at 211; and Pierce,

75 F.3d at 177-78. If a federal court revokes supervised release, it has the power to sentence the

individual to additional incarceration. See United States v. Proctor, 127 F.3d 1311, 1313 (11th

Cir.1997). Similarly, if Diane were to violate the conditions of her probation, a court could revoke

it and sentence her to a term of incarceration within the limits set by Florida law.

        Finally, our holding merely permits federal judges the flexibility to impose a term of

probation in excess of what state law would permit. We leave intact the established rule that a term

of incarceration under the ACA cannot exceed the limits set by assimilated state law. See Vaughan,

682 F.2d at 294 (stating that "[i]t is a well established principle that a state statute that fixes the

length of a prison term should control the sentence imposed by federal courts" under the ACA.);

United States v. Garcia, 893 F.2d 250, 254 (10th Cir.1989) (explaining that a federal court must stay

within maximum and minimum term, but is not required to "duplicate every nuance" of state

sentencing law).

                                        VI. CONCLUSION

       The district court determined correctly that the Florida law providing for a one-year
maximum term of probation conflicted with the policies behind the federal probation statute. The

sentencing judge could not have given effect to the federal policies of supervision and rehabilitation

without exceeding the one-year limit for probation under state law. Pursuant to the exception to the

ACA's "like punishment" requirement for cases in which assimilated state law conflicts with federal

policy, we affirm Diane's sentence.

        AFFIRMED.

        BARKETT, Circuit Judge, specially concurring:

        I concur because I believe this case is controlled by our precedent in United States v. Burke,

113 F.3d 211 (11th Cir.1997). However, I share some of the same reservations expressed by Judge

Hill.

        HILL, Senior Circuit Judge, specially concurring:

        I concur because:

(1) In United States v. Burke, 113 F.3d 211, our court adopted the reasoning of the Fourth Circuit
        (per J. Wilkins) in United States v. Pierce, 75 F.3d 173 which aligns us with the approach
        taken by the district judge in the case, and

(2) the district court did, in sentencing, what ought to have been done for the good of the public, the
        victims and the defendant.

        Yet, I am less than satisfied that, in doing the right thing here, we are doing what we should

do. Florida law is "assimilated" into federal law in this case. The district judge found Florida law

inadequate to the task before him. He did what federal judges have done in these "assimilated" cases

with inadequate state law in the past—the state law is found to be in "... conflict with federal

sentencing policy," so it is dis-assimilated, so to speak, and replaced. Perhaps the Congress meant

for this to be the law. See footnote 5 of our opinion. I hope so.
