                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 08-4900


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JAMES S. PEEBLES,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:07-cr-00041-RLV-DCK-1)


Argued:   January 27, 2010                 Decided:   March 19, 2010


Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.


Reversed and remanded with instructions by unpublished opinion.
Judge Duncan wrote the majority opinion, in which Judge Davis
concurred. Judge Wilkinson wrote a dissenting opinion.


ARGUED: David Grant Belser, BELSER & PARKE, Asheville, North
Carolina, for Appellant.     Donald David Gast, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
ON BRIEF: Edward R. Ryan, Acting United States Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
DUNCAN, Circuit Judge:

      This          appeal      arises        from    a     prosecution          under     the

Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13.                           After pleading

guilty to the offense of aggravated speeding to elude arrest

under        N.C.    Gen.     Stat.     § 20-141.5,         Appellant      James     Peebles

received       a     prison     sentence       of    twelve    months      and     one    day.

Because his maximum sentence under North Carolina law would have

been eight months, we hold that the district court violated the

ACA     by     not     imposing       “like    punishment.”           18    U.S.C.       § 13.

Accordingly,           we     vacate     Peebles’s        sentence    and    remand       for

resentencing. 1



                                               I.

      On September 9, 2007, in Alleghany County, North Carolina,

James        Peebles        raced   down      the    Blue     Ridge   Parkway       on     his

      1
       We find it useful to stress the limits of our holding
today.   We do not, as the dissent suggests, hold that the ACA
requires “identical” rather than like punishment or that
Peebles’s sentence must track what a North Carolina court would
have imposed.     See Dis. Op. at 20 (denying that Peebles’s
“federal sentence should be limited to the individual sentence a
state judge would have imposed on him”).     We merely adhere to
circuit precedent finding that the ACA precludes a prison term
outside the minimum and maximum that a state court could have
imposed.   See United States v. Pierce, 75 F.3d 173, 176 (4th
Cir. 1996) (stating that under the ACA a defendant “may be
sentenced only in the way and to the extent that the person
could have been sentenced in state court” (internal quotations
omitted)).   This does not offend federal sentencing guidelines,
which remain fully applicable within that range.



                                                2
motorcycle, going well over the speed limit.            When a National

Park Service Ranger tried to stop him, Peebles tried to escape

and caused a high speed chase.           Using a “rolling road block,”

police eventually stopped and arrested him.        J.A. 85.

     Because this dangerous flight occurred within the special

territorial   jurisdiction   of    the    United   States,    Peebles   was

prosecuted under the ACA.    This statute assimilates into federal

law offenses that “would be punishable if committed . . . within

the jurisdiction of the State” in which the relevant federal

property is located.     18 U.S.C. § 13(a).         Peebles was charged

with aggravated speeding to elude arrest under N.C. Gen. Stat.

§ 20-141.5, and he pleaded guilty.         The district court sentenced

Peebles to twelve months and one day imprisonment, followed by

one year supervised release.      This appeal followed.



                                   II.

     On appeal, Peebles argues that the district court violated

the ACA by imposing a sentence greater than North Carolina’s

statutory maximum.     “The proper length of a sentence under the

ACA is a question of law subject to de novo review.”               United

States v. Pate, 321 F.3d 1373, 1375 (11th Cir. 2003).

     The ACA provides that a person who, within the territorial

jurisdiction of the United States, commits “any act . . . which,

although not made punishable by any enactment of Congress, would

                                    3
be punishable if committed . . . within the jurisdiction of the

State . . . in which such place is situated . . . , shall be

guilty of a like offense and subject to a like punishment.”                                 18

U.S.C. § 13(a) (emphasis added).                   In light of circuit precedent

interpreting        the    highlighted         phrase,    the    government          concedes

that    the      ACA      prohibited       sentencing         Peebles           beyond   North

Carolina’s statutory maximum sentence.                    Appellee’s Br. at 11-12.

See    also    Pierce,     75    F.3d     at   176    (“[A]     term       of    imprisonment

imposed for an assimilated crime may not exceed the maximum term

established by state law.”); United States v. Young, 916 F.2d

147, 150 (4th Cir. 1990) (“[T]he ‘like punishment’ requirement

of    the     Assimilative       Crimes    Act       mandates    that       federal      court

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.”).              The    only     disputed

question is how to calculate North Carolina’s statutory maximum

sentence.       Peebles argues that it should be the highest sentence

that    a   state      court    could     have     imposed      on    him.         Under   our

precedent, we are constrained to agree.

       Unlike     most     federal       criminal      statutes,       section       20-141.5

defines aggravated speeding to elude arrest but does not specify

the maximum or minimum penalty.                      Rather, it merely labels the

offense “a       Class     H    felony.”        N.C.     Gen.   Stat.       § 20-141.5(b).

                                               4
Maximum     penalties       are     codified     elsewhere        under     the    North

Carolina    Structured       Sentencing        Act,     N.C.   Gen.     Stat.     § 15A-

1340.10 et seq.            Under this regime, for any felony offense,

North Carolina courts have authority to sentence only within a

particular range determined by three variables: (1) the class of

offense, (2) the offender’s prior record level, and (3) whether

the    sentence     should    be     aggravated        or   mitigated      beyond       the

ordinary or “presumptive” sentence.                   See N.C. Gen. Stat. § 15A-

1340.13.      The    process       proceeds      as    follows.        First,     courts

determine    the    prior     record     level    by    calculating       the     sum   of

points assigned to each prior conviction according to section

15A-1340.14.       Then they determine whether the sentence should be

aggravated or mitigated by considering sentencing factors under

section 15A-1340.16.          At this stage, the government must prove

aggravating factors beyond a reasonable doubt.

       The government does not dispute that Peebles would qualify

for prior record level I.              The government also conceded during

oral   argument     that     Peebles’s    indictment        contains      insufficient

allegations to support aggravating his sentence.                       Therefore, the

highest     sentence       Peebles     could     have       received      under    North

Carolina law would have been eight months.                     See N.C. Gen. Stat.

§ 15A-1340.17(c)-(d).             Peebles’s presentence report reached the

same conclusion:



                                          5
       The defendant has zero criminal history points in
       accordance with NCGS §15A-1340.14(b)(6) and thus a
       prior record level of I.   A Class H felony combined
       with a level I prior record results in a presumptive
       range of a minimum 4 months to a maximum 8 months
       active imprisonment.

J.A. 93. Peebles thus concludes that North Carolina’s statutory

maximum    sentence      would    be   eight         months.        The    government

contends, however, that the statutory maximum sentence should be

the highest sentence that could ever be imposed for the offense.

This   would    be     thirty    months,       i.e.,    the     highest    aggravated

sentence authorized for someone with prior record level VI.                      See

N.C. Gen. Stat. § 15A-1340.17(c)-(d).                  The choice between these

approaches      determines      whether        Peebles’s       sentence   of   twelve

months    and    one    day     violated       the     ACA’s     “like    punishment”

requirement.

       Given our precedent, we are constrained to adopt Peebles’s

contention.      Pierce stated that “like punishment” under the ACA

means that “one who commits an act illegal under state law but

not prohibited by federal law in an area of federal jurisdiction

may be sentenced only in the way and to the extent that the

person could have been sentenced in state court.”                         75 F.3d at

176    (internal     quotations     omitted)         (emphasis      added).     This

language suggests that the district court’s sentence should not

have exceeded the maximum sentence that Peebles himself (rather

than any hypothetical defendant) could have received under North


                                           6
Carolina law.   See also United States v. McManus, 236 F. App’x

855, 856 (4th Cir. 2007) (considering N.C. Gen. Stat. § 15A-

1340.17 and concluding, “[w]e agree with McManus that . . . the

state maximum sentence was the maximum sentence that could have

been imposed on him by a state-court judge”).

     This   conclusion   also   comports   with   the   congressional

purpose underlying the ACA and general principles of federalism.

Dating back to 1825, the ACA was designed to fill gaps created

where state criminal law became inapplicable because the federal

government had reserved or acquired land.         The Supreme Court

explained further:

     When the[] results of the statute are borne in mind,
     it becomes manifest that Congress, in adopting it,
     sedulously considered the twofold character of our
     constitutional   government,   and had   in  view  the
     enlightened purpose, so far as the punishment of crime
     was concerned, to interfere as little as might be with
     the authority of the states on that subject over all
     territory situated within their exterior boundaries,
     and which hence would be subject to exclusive state
     jurisdiction but for the existence of a United States
     reservation.    In accomplishing these purposes it is
     apparent that the statute, instead of fixing by its
     own terms the punishment for crimes committed on such
     reservations which were not previously provided for by
     a law of the United States, adopted and wrote in the
     state law, with the single difference that the
     offense, although punished as an offense against the
     United States, was nevertheless punishable only in the
     way and to the extent that it would have been
     punishable   if    the   territory  embraced   by  the
     reservation remained subject to the jurisdiction of
     the state.




                                  7
United States v. Press Publ’g Co., 219 U.S. 1, 9-10 (1911).

Here    the      Supreme    Court   made       clear       that     the   ACA    was   never

supposed to displace the outer limits on sentencing discretion

imposed by state law.               This underscores Pierce’s implication

that    a   defendant      being    prosecuted         under      the     ACA   should   not

receive a prison sentence that a state court would have lacked

authority to impose.

       Our holding today also finds support in United States v.

Harris, 27 F.3d 111 (4th Cir. 1994).                        There, the defendant was

prosecuted under the ACA for driving while impaired under N.C.

Gen.    Stat.     § 20-138.1.           This       statute    defined      driving     while

impaired       but,     rather   than    specify       the    authorized        punishment,

provided that punishment should be imposed under N.C. Gen. Stat.

§ 20-179.        Section 20-179 authorized different punishment levels

depending         on     whether    various           aggravating         or     mitigating

circumstances had been proved.                     Although counsel for both sides

agreed      on    the    appropriate      level,       we     nevertheless        observed:

“Other subsections of § 20-179 authorize more severe punishment

than that permitted by subsection (k).                        But the government did

not    prove     the    elements    necessary         to    bring    Harris     within   the

purview of the other subsections.”                         Id. at 116.          Implicit in

that observation is the recognition that the government would

have had to present relevant evidence to support the maximum

sentence the provision would afford.

                                               8
     Given the structural similarity between section 20-179 and

section    15A-1340.17,     Harris    indicates     that    the    ACA     prohibits

sentencing Peebles beyond eight months unless the government had

established the elements necessary for the aggravated range or

Peebles’s    record   level    had     been   greater.           Because    neither

occurred, Peebles’s actual sentence of twelve months and one day

was unlawful.

     In sum, because North Carolina’s statutory maximum sentence

applicable    to   Peebles    was    eight    months,      the    district      court

violated the ACA’s “like punishment” requirement by sentencing

Peebles to twelve months and one day.             Thus, we vacate Peebles’s

sentence     and   remand    for     resentencing    consistent          with   this

opinion. 2
                               REVERSED AND REMANDED WITH INSTRUCTIONS

     2
       Peebles also challenges how the district court applied the
U.S. Sentencing Guidelines.     The court applied section 2A2.4
upon finding it “sufficiently analogous” to Peebles’s crime of
aggravated speeding to elude arrest. U.S. Sentencing Guidelines
Manual § 2X5.1 [hereinafter “USSG”].    We decline to reach this
issue because, assuming we found error, the resulting benefit
would be trivial.     See USSG § 5G1.1 (“Where the statutorily
authorized maximum sentence is less than the minimum of the
applicable guideline range, the statutorily authorized maximum
sentence shall be the guideline sentence.”).     Furthermore, our
circuit precedent makes plain that the Guidelines by no means
trump the ACA’s “like punishment” requirement.     See Young, 916
F.2d at 150 (“[T]he ‘like punishment’ requirement of the
Assimilative Crimes Act mandates that federal court 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.”).



                                        9
WILKINSON, Circuit Judge, dissenting:

       I     agree     with    the      majority      that     an    offense     under    the

Assimilative Crimes Act (ACA), 18 U.S.C. § 13, may be punished

only within the “the maximum term established by state law.”

U.S. v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996).                            My concern is

that       Peebles’s      novel      interpretation       of    that    well-established

principle disregards our precedent and creates a circuit split

by requiring federal courts to apply state sentencing guidelines

to individual defendants.                 The ACA requires only “like” -- not

“identical”          --    punishment.            Every      other      court    that      has

considered the interaction between federal and state sentencing

practices for ACA purposes has rightly recognized that while the

generic statutory ranges established by state substantive law

limit the permissible ACA punishment, federal courts need not

apply       individualized           state      sentencing          calculations.         The

sentence       imposed        here      was   reasonable,       respected        the    state

sentencing range for Class H felonies, and in no sense amounted

to an abuse of discretion on the part of the district court.

See    Gall     v.     U.S.,      552    U.S.    38    (2007).          As   a   result,    I

respectfully dissent. 1


       1
       In an opening footnote, see Maj. Op. at 2 n.1, my good
colleagues in the majority claim to uphold federal sentencing
practice within the state sentence range, but the majority’s
three month “range” is so constricted that federal practice
hardly applies.    Contrary to the majority’s protestations,
(Continued)
                                                10
                                            I.

      Even the twelve month and one day sentence that Peebles

would have us discard does not fully reflect the deadly nature

of his crime.       Certainly the proffered maximum sentence of eight

months   fails      to   do    so     in   light      of   his    potentially     lethal

behavior.      Peebles        led     police     on   a    high   speed   chase   after

refusing to pull over his motorcycle for traveling twenty miles

per   hour   over    the      speed    limit.         Reaching     speeds   above   one

hundred miles per hour along the winding twists of the Blue

Ridge Parkway, he fled for some twenty-five miles.                        Travelers on



individualized state sentencing comes so close to impermissible
identicality as to render any distinction between the two
negligible. See infra Part II.C. Second, the majority declares
the maximum state sentence to be eight months, but that
declaration begs the question of what state sentence ranges
apply. Class H felonies are subject to a generic four to thirty
month range under North Carolina law, and it is that range and
that maximum, not individualized state procedures, that respects
Congress’s sentencing policy set forth in 18 U.S.C. § 3551(a).
See infra Part II.A.      Finally, the majority argues that a
defendant “may be sentenced only in the way and to the extent
that the person could have been sentenced in state court.” U.S.
v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996).     But immediately
after that language, Pierce emphasized that “like punishment
does not encompass every incident of a state’s sentencing
policy” and in fact affirmed the imposition of a federal term of
supervised release under the ACA instead of requiring state
probation. Id. at 176-77 (citation omitted). Nothing in Pierce
or our other precedent elevates individualized state sentencing
procedures above federal sentencing practice, see infra Part
II.C.  In doing so, the majority transforms the ACA from a gap
filling statute into one of displacement, again in contravention
of Congress’s express intent in Section 3551(a).       See infra
Parts II.A and B.



                                            11
the scenic byway were forced off the road.                  Peebles passed more

than a dozen cars in no passing zones while narrowly missing

head on collisions with two separate vehicles.                    His mad dash did

not end until officers from the North Carolina Highway Patrol

and the Alleghany County Sheriff’s Department set up a rolling

roadblock.          Even   then,    Peebles    was   only    captured     when    his

motorcycle went off the road as he attempted to turn around to

avoid the roadblock and continue his flight.                  Something is wrong

when the twelve month and one day sentence of such a malefactor

is reduced to a mere eight month maximum.                     What is wrong is

appellant’s view of the ACA.



                                         II.

       Peebles claims the ACA’s “like punishment” clause, codified

in 18 U.S.C. § 13(a), requires us to follow state law right down

to    the    individualized,       defendant-specific       provisions    of   North

Carolina sentencing practice.            But when we move from the generic

range that a hypothetical defendant could receive under state

law     to    the   individualized      North     Carolina     calculation       that

Peebles demands, we come perilously close to replacing the ACA’s

“like        punishment”     requirement         with   one        of    “identical

punishment.”        Peebles’s argument also ignores important guidance

from other federal statutes, the history of the ACA itself, and

the    extensive     caselaw   of     circuits    across    the    country.      The

                                         12
better     understanding      of   “like     punishment”     is   that    the     ACA

directs federal courts to sentence within the generic range of

permissible       state     sentences      that   could     be    imposed    on     a

hypothetical defendant but to follow federal sentencing policy

so long as it consistent with that range.



                                        A.

     As     an     initial    matter,       the   ACA’s      “like    punishment”

requirement must be interpreted in pari materia with 18 U.S.C.

§ 3551(a), which explains what types of sentences are authorized

in federal courts.        That section indicates that “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

[federal sentencing] chapter so as to achieve the purposes set

forth in [18 U.S.C. § 3553(a)(2)(A)-(D)]”.                  18 U.S.C. § 3551(a)

(emphasis added).         The emphasized reference to 18 U.S.C. § 13

(the ACA) was added by Congress in 1990 and makes explicit the

fact that federal sentencing procedures apply to ACA crimes.

See Pub. L. 101-647, § 1602, 104 Stat. 4789, 4843.                    Even before

Congress    added    this    reference,      courts   had   already      recognized

that Section 3551(a) provides a statutory directive that federal

sentencing       practices   apply   to     assimilated     crimes.        U.S.    v.

Marmolejo, 915 F.2d 981, 984 (5th Cir. 1990); U.S. v. Garcia,

                                        13
893 F.2d 250, 253-54 (10th Cir. 1989).                   Section 3551(a) thus

gives the term “like punishment” a specific, limited meaning:

within the generic state sentencing range assimilated by the

ACA, federal sentencing policy determines the actual sentence.

See, e.g., U.S. v. Pierce, 75 F.3d 175, 176 (4th Cir. 1996).



                                        B.

       Further,     the   legislative        history     of    the    ACA     itself

indicates    that    Peebles’s    interpretation         of   the     ACA’s    “like

punishment” clause cannot be correct.                  Prior to 1909, the law

that became the ACA required defendants convicted of assimilated

crimes to “be liable to and receive the same punishment as the

laws of the state.”         Ch. 576, § 2, 30 Stat. 717, July 7, 1898

(emphasis    added).       In   1909,   however,       the    “same    punishment”

requirement was replaced with the current ACA formulation of

“like punishment.”        See Ch. 321, § 289, 35 Stat. 1145, Mar. 4,

1909.     This switch undercuts Peebles’s assertion that federal

courts    must    apply   individualized      state    sentencing      procedures.

Now sentences need only be similar to what would be imposed in

state court.      “The word ‘like’ in the current version of the ACA

thus implies similarity, not identity.”                Marmolejo, 915 F.2d at

984.     Peebles’s contrary position may have been good law during

Teddy    Roosevelt’s      administration,       but     for    over    a    century



                                        14
Congress has required only “like punishment,” which does not

require reference to individualized state sentencing procedures.

      Additionally, the purpose of the ACA suggests that Peebles

mistakenly interprets the “like punishment” requirement.                              The

ACA   exists     to   fill   gaps    in     federal      criminal       law    so    that

wrongdoing on federal land can be punished even if Congress has

not thought to criminalize a specific act.                   See, e.g., U.S. v.

Gaskell, 134 F.3d 1039, 1042 (11th Cir. 1998) (“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.”) (internal citations omitted);

Garcia, 893 F.2d at 253 (same).                Because the purpose of the ACA

is gap filling, it is fair to infer that courts should only

assimilate       state   law    to    the       extent     that     there       is     no

corresponding federal guidance.                In the present case, there is

no federal law of aggravated speeding to elude arrest, and the

district court correctly assimilated that North Carolina crime.

However, there are comprehensive federal sentencing laws, and it

would be counterintuitive to overturn those federal procedures

by incorporating individualized state sentencing through a mere

gap filling measure.




                                          15
                                                 C.

       Peebles     attempts         to    overcome       the    statutory       obstacles     of

text,     history,       and        purpose        by     claiming       that       our    prior

precedents, including United States v. Pierce, 75 F.3d 173 (4th

Cir.    1996),    United       States       v.   Harris,        27   F.3d     111   (4th    Cir.

1994), and United States v. Young, 916 F.2d 147 (4th Cir. 1990),

suggest      that     “like              punishment”          requires        individualized

sentencing based on state law.                          But those decisions actually

buttress    what    18     U.S.C.         3551(a)       and    the   history     of   the    ACA

already make clear, indicating that the normal ACA practice is

to use federal, not state, sentencing procedures to the fullest

extent possible within the boundaries of assimilated substantive

state law.         As Pierce explained, “state law may provide the

mandatory     maximum          or        minimum        sentence,      but      the       federal

sentencing       guidelines          determine          the     sentence       within      these

limits.”     75 F.3d at 176.              Indeed, we noted in Young that “[t]he

[Federal]    Sentencing         Reform       Act      and     the    [Federal]      Sentencing

Guidelines       adopted     thereunder            apply       to    assimilated      crimes,”

explicitly       rejecting      claims       that       federal      judges     should      apply

state sentencing practices to ACA offenses.                             916 F.2d at 150.

If Peebles is correct that individualized state sentences are

required, he comes close to rendering the concept of “maximum or

minimum” sentences irrelevant.                   If he were arguing for a generic

state law range, I would agree that the ACA requires federal

                                                 16
courts to sentence within such boundaries.                              But he does not.

Peebles asks to be sentenced between an individualized “maximum”

of eight and an individualized “minimum” of five months.                                   This

so-called     three         month    “range”      is    so     defendant-specific          when

compared    to       the    statutory      four    to    thirty       month     range    for    a

hypothetical Class H felon that it is nearly meaningless.

       Peebles’s argument also disregards the fact that we have

rejected requests to incorporate the trappings of individualized

state sentencing on previous occasions.                        We have recognized that

“[t]he phrase ‘like punishment’ . . . does not encompass every

incident of a state’s sentencing policy.”                             Harris, 27 F.3d at

115.    Far from it.             A federal court “will not assimilate a state

sentencing       provision          that   conflicts          with    federal     sentencing

policy.”      Pierce, 75 F.3d at 176.                  In Pierce, we went so far as

to   uphold      a    federal       ACA    sentence      that        included    a   term      of

supervised release, even though North Carolina sentencing law

only    provides           for    probation.            Id.    at     177.        Even     more

importantly, we affirmed despite the fact that the supervised

release term exceeded the maximum jail term allowed under state

law because “supervised release is not considered to be a part

of the incarceration portion of a sentence and therefore is not

limited by the statutory maximum term of incarceration.”                                 Id. at

178.    As a result, we declined to follow state probation rules

and instead gave full force to federal sentencing policy within

                                              17
the ACA’s boundaries.          Id.    See also U.S. v. Engelhorn, 122 F.3d

508 (8th Cir. 1997) (same); U.S. v. Burke, 113 F.3d 211 (11th

Cir. 1997) (per curiam) (same).

     Peebles thus invites us to pick and choose the portions of

state sentencing policy that we will now follow.                  Under Pierce,

federal    supervised    release      trumps    state   probation      rules,    but

without questioning that earlier holding, Peebles now promotes

individualized       state     sentencing       calculations      over       federal

sentencing policy.        This approach can only result in complex,

arbitrary, pick-and-choose distinctions.                To avoid this pitfall,

courts have two choices: rewrite the ACA’s statutory command of

“like punishment” to read “identical punishment” or recognize

that “like punishment” contemplates only that federal sentencing

policy applies within the state’s generic maximum and minimum

sentence    range.      Our    case    law   correctly    selects      the   latter

approach, and there is no reason to revisit that choice.



                                        D.

     Nor is our circuit an outlier.               Our sister circuits also

recognize    that    federal     --    rather    than    state    --   sentencing

procedures    apply     when    calculating      individual      ACA   sentences.

See, e.g., U.S. v. Calbat, 266 F.3d 358, 362 (5th Cir. 2001)

(“Consequently, state law fixes the range of punishment, but the

Sentencing Guidelines determine the actual sentence within that

                                        18
range.”) (internal citation omitted); U.S. v. Queensborough, 227

F.3d 149, 160 (3d Cir. 2000) (same); U.S. v. Gaskell, 134 F.3d

1039, 1043, 45 (11th Cir. 1998) (same); U.S. v. Leake, 908 F.2d

550, 552 (9th Cir. 1990) (same); U.S. v. Garcia, 893 F.2d 250,

251-52 (10th Cir. 1989) (same); see also U.S. v. Norquay, 905

F.2d    1157,       1161-62       (8th    Cir.        1990)    (same   in    interpreting

statutory       provision         similar    to       ACA).       While     many   of   the

decisions from this and other circuits predate United States v.

Booker, 543 U.S. 220 (2005), and its progeny, I do not think

their       basic    teaching      about     federal          sentencing    practices    is

rendered in any way inapplicable by the fact that the Guidelines

are presently advisory.                 See Gall v. U.S., 552 U.S. 38 (2007).

If anything, the greater discretion now afforded district courts

in sentencing would seem inconsistent with the strict handcuffs

that Peebles would place upon them.

       In    addition       to    the    widespread       recognition       that   federal

sentencing procedures apply to ACA crimes, other circuits also

have    taken       the    same   approach       as    this    court   in   declining    to

require adherence to state probation rules.                            See Gaskell, 134

F.3d at 1043 (citing and discussing Second, Ninth, and Tenth

Circuit decisions).               As the Ninth Circuit explained long ago,

“[t]o hold otherwise would be to have two classes of prisoners

serving       in     the     federal      prisons:        Assimilative       Crimes     Act

prisoners and all other federal prisoners.                        That situation would

                                             19
be    disruptive      to     correctional      administration,         and   we    do   not

think Congress intended this result.”                     U.S. v. Smith, 574 F.2d

988,    992    (9th    Cir.    1978).        The     two-tiered    system      for   which

Peebles argues cannot be what Congress intended, and “[e]fforts

to duplicate every last nuance of the sentence that would be

imposed in state court has never been required.”                             Garcia, 893

F.2d at 254.



                                             III.

       Peebles’s        error         is     further       exacerbated          by      his

misapprehension of the interaction between the ACA, 18 U.S.C.

§ 13,    the    assimilated         crime    of     aggravated    speeding     to    elude

arrest,       N.C.    Gen.    Stat.    §    20-141.5,    and     the   North      Carolina

structured sentencing statute, N.C. Gen. Stat. § 15A-1340.17.

Peebles claims his federal sentence should be limited to the

individual sentence a state judge would have imposed on him.

But    the    ACA     does    not     incorporate      North     Carolina     structured

sentencing.          Instead it incorporates substantive offenses that

“would be punishable if committed . . . within the jurisdiction

of the State.”         18 U.S.C. § 13(a).

       As the majority acknowledges, the typical federal criminal

statute specifies a maximum and a minimum penalty as part of the

statutory       definition      of     the    offense.         When    an    assimilated

statute is structured similarly, the maximum and minimum ranges

                                              20
apply, but federal courts are free to use federal sentencing

practices within those boundaries.                  See, e.g., Queensborough,

227    F.3d   at   160     (twenty    year      federal   sentence    valid    when

assimilated Virgin Islands law authorized ten years to life).

In such a situation, whatever sentencing guidance the state may

establish elsewhere is irrelevant for federal assimilation.

       North Carolina law operates identically, though with less

clarity than is typical.              The substantive law merely defines

Peebles’s aggravated speeding offense as a “Class H felony.”

N.C. Gen. Stat. § 20-141.5(b).             The authorized sentence range is

then   codified     separately       in   tabular    form.     N.C.   Gen.    Stat.

§ 15A-1340.17(c) and (d).            That table indicates that a Class H

felony can be punished by four to thirty months.                  See N.C. Gen.

Stat. § 15A-1340.17(c) and (d).                North Carolina courts recognize

that   this   range      establishes      the   authorized    maximum   sentence,

regardless of specific defendants’ individual characteristics.

See State v. Dewberry, 600 S.E.2d 866, 870 (N.C. App. 2004)

(“The maximum sentence for a Class H felony is 30 months.”);

State v. Bernard, No. COA07-1289, 2008 WL 1948022, at *6 (N.C.

App.   May    6,   2008)    (defendant       considering     self-representation

warned that “speeding to elude is a Class H felony carrying a

maximum punishment of 30 months.”).               See also U.S. v. Jones, 195

F.3d 205, 207 (4th Cir. 1999) (“viewing the class maximum as the



                                          21
statutory maximum for the crime appears to accord . . . with the

general practice in North Carolina courts”).

       North Carolina also chose to codify its state sentencing

procedures in the same statute.                       This decision, however, does

not    alter      the       fact    that    the       resultant        law   performs     two

independent and severable tasks.                       The first is to provide a

generic reference table that categorizes the range of authorized

penalties by felony class, in the case of a Class H felony up to

thirty       months.         In    addition      to    this    initial       function,    the

statute serves a secondary purpose of laying out the state’s

sentencing regime.                While it is undisputed that Peebles would

have       received     a    sentence      between      five     and    eight    months    if

sentenced        under      state    sentencing        guidelines       in    state    court,

federal courts are not required to adopt the identical local

procedures in sentencing ACA defendants.                          The Class H felony

punishment of up to thirty months is what is assimilated by the

ACA,       not   every      particular      of    state       sentencing      rules.      See

Garcia, 893 F.2d at 254. 2


       2
        Nor does the majority’s contrary view do criminal
defendants any favors.    In many instances state sentencing law
may provide for a harsher punishment than provided by federal
sentencing policies.    For instance, North Carolina sentencing
procedures typically give judges unfettered discretion to decide
whether sentences imposed for multiple counts should run
concurrently or consecutively. See N.C. Gen. Stat. § 15A-1354.
In   contrast,  federal    policy  generally   favors  concurrent
sentences, albeit with some exceptions.      See, e.g., U.S.S.G.
(Continued)
                                              22
       In   short,     Peebles       asks    us   to   create    a    North    Carolina

anomaly     that    conflicts        with   the   precedent     of   this     and    other

circuits.      Under the ACA, Peebles is only entitled to “like

punishment,” and that is precisely what the district court’s

sentence provided.            By focusing on the individualized elements

of     state   sentencing       rules,       appellant      disregards       the    ACA’s

century-old “like punishment” requirement in favor of the “same

punishment”        phrasing    rejected      by   Congress    in     1909.     The       ACA

“fills in gaps in federal criminal law.”                      Garcia, 893 F.2d at

253 (citation omitted).                It is not intended to displace the

comprehensive        federal    sentencing        practice    with    individualized

state sentencing procedures.                Pierce, 75 F.3d at 176 (“a federal

court . . . will not assimilate a state sentencing provision

that    conflicts      with     federal      sentencing      policy.”).            And   it

certainly is not intended to impair the basic prerogative of the

United States to ensure a modicum of public safety on federal

lands and parkways.           Other courts have been able to accommodate

state sentencing ranges and this core federal concern, and I

respectfully dissent from the failure to follow their example.




§ 5G1.2 (guideline             for     sentencing      on    multiple        counts      of
conviction).



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