                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         SEP 15 1998
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 98-2102
          v.                                          D. New Mexico
 TOMMY R. NELSON,                                 (D.C. No. CR-97-77-JP)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, McKAY, and LUCERO, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is

therefore ordered submitted without oral argument.

      Following a bench trial, Tommy R. Nelson was convicted on three counts

of residential burglary which occurred on the Navajo Indian Reservation. He now


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
appeals the sentence imposed, contending that the district court erred because it

assigned the sentencing stage of his case to a substitute judge who had not

presided over his trial, and because the substitute judge who actually imposed

sentence failed to read the trial transcript or to certify familiarity with the case.

He also contends that the court erred by applying federal sentencing guidelines

instead of New Mexico sentencing provisions. We affirm.



                                   BACKGROUND

      On February 5, 1997, a federal grand jury returned an indictment charging

Nelson with three counts of residential burglary in violation of N.M. Stat. Ann.

§ 30-16-3(A) (Michie Repl. Pamp. 1994); the Assimilative Crimes Act, 18 U.S.C.

§ 13; and the Indian Major Crimes Act, 18 U.S.C. § 1153. The indictment also

charged him with three counts of larceny in excess of $2500, in violation of 18

U.S.C. §§ 13 and 661. The case was assigned to United States District Judge

James A. Parker. Nelson waived his right to a jury trial, following which the

court notified the parties that the case would be tried by a visiting judge from the

Fifth Circuit. A one-and-a-half-day trial was held on November 17-18, 1997,

before the Honorable Peter Beer, Senior United States District Judge from the




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Eastern District of Louisiana. 1 Judge Beer acquitted Nelson of the three larceny

counts, but found him guilty of the three counts of residential burglary.

      Sentencing was set for March 11, 1998, before Judge Parker. Nelson filed

a motion requesting that sentence be imposed and rulings on post trial motions be

made by Judge Beer, who had presided at trial. He also filed a motion objecting

to the application of the sentencing guidelines, claiming that the crimes for which

he was convicted were state rather than federal crimes. On March 11, 1998,

Judge Parker orally denied Nelson’s post trial motions, and he sentenced Nelson

to seventy-two months’ imprisonment.



                                  DISCUSSION

      As his first two claims of error, Nelson contends that Fed. R. Crim. P.

25(b) was violated when Judge Parker was reassigned to the case for sentencing

purposes; and he further contends that Judge Parker had insufficient familiarity to

impose a sentence. In particular, Nelson complains that Judge Parker had not

read the transcript of the trial. We review a substitute judge’s decision to impose

sentence pursuant to Rule 25(b) for abuse of discretion. See United States v.

Spinney, 795 F.2d 1410, 1413-14 (9th Cir. 1986); United States v. Whitfield, 874


      1
       We GRANT the government’s unopposed motion to supplement the record
on appeal with a copy of the Order which designated and assigned Judge Beer to
perform judicial duties in the District of New Mexico.

                                        -3-
F.2d 591, 593 (8th Cir. 1989); United States v. Niemiec, 611 F.2d 1207, 1212 (7th

Cir. 1980).

      Under Fed. R. Crim. P. 25(b), in the event of the absence of the judge

before whom the defendant was tried, any judge regularly sitting in the district

may sentence the defendant. 2 The term “absence” is not qualified. However, the

Advisory Committee Notes to the 1966 Amendment make it clear that absence due

to geographical distance is sufficient. 3 In this case, Judge Beer would have been

required to travel hundreds of miles back from Louisiana in order to preside over

the sentencing. Accordingly, we conclude that Judge Parker did not abuse his

discretion either when he denied Nelson’s motion for Judge Beer to preside over

      2
       Fed. R. Crim. P. 25(b) provides as follows:

             After Verdict or Finding of Guilt. If by reason of absence,
      death, sickness or other disability the judge before whom the
      defendant has been tried is unable to perform the duties to be
      performed by the court after a verdict or finding of guilt, any other
      judge regularly sitting in or assigned to the court may perform those
      duties; but if that judge is satisfied that a judge who did not preside
      at the trial cannot perform those duties or that it is appropriate for
      any other reason, that judge may grant a new trial.
      3
        According to the Advisory Committee Notes to the 1966 Amendment,
“[t]he words ‘from the district’ [were] deleted to permit the local judge to act in
those situations where a judge who has been assigned from within the district to
try the case is, at the time for sentence, etc., back at his regular place of holding
court which may be several hundred miles from the place of trial.” Based on the
Committee’s clear statement, we reject Nelson’s argument that the rule is not
intended to operate in situations created by the temporary assignments and
designations of judges under 28 U.S.C. §§ 291 or 294, and the “artificial”
absences created by the termination of those assignments.

                                          -4-
all post-trial matters, or when he personally presided over the sentencing stage of

Nelson’s case.

      Next, respecting Nelson’s claim that Judge Parker lacked sufficient

familiarity to impose sentence, we note that this case was not complicated. While

Nelson correctly points out that Judge Parker did not have access to the trial

transcript at the time of sentencing, and that he failed to certify his familiarity,

Rule 25(b) imposes no such requirement on the sentencing judge. Rather, in

imposing the sentence, Judge Parker could properly rely on the comprehensive

presentence investigation report (“PSR”) which set forth the offense and the

critical evidence adduced at trial, including the trial court’s findings that the

government had failed to prove that any personal property was stolen. See

Whitfield, 874 F.2d at 593. In this case, Judge Parker indicated that he had fully

reviewed the PSR and also that he had read all correspondence which had been

submitted. Additionally, Judge Parker specifically asked the parties if there were

any further written materials which he needed to review. 4 Such a record indicates




      4
        Both the government and Nelson answered, “No.” However, we note that
the hearing transcript clearly indicates that Nelson’s counsel believed that the
court had read a transcript of the trial proceedings. As we have concluded, in the
circumstances of this straightforward case, such a reading was unnecessary, and,
in any event, Nelson points to no portion of the transcript which might have been
critical to, or which might have altered, the actual sentencing decision.

                                           -5-
that Judge Parker possessed sufficient familiarity with the critical aspects of the

case.

        Moreover, the record demonstrates that Judge Parker exercised informed

discretion in imposing the sentence. Specifically, the judge set a sentence of

seventy-two months, which is close to the seventy month minimum permitted

under the sentencing guidelines, and he did not impose restitution for any of the

alleged, but unproved, personal property loss claims. See id.; Spinney, 795 at

1414. Accordingly, we find no abuse of discretion.

        As his final claim on appeal, Nelson contends that the court improperly

applied the sentencing guidelines. He argues that because the crimes of

conviction are defined by New Mexico statute, he should have been sentenced

according to state rather than federal law. We review de novo the district court’s

application of the guidelines. United States v. McClelland, 141 F.3d 967, 973

(10th Cir. 1998).

        As the government correctly responds, Nelson was convicted of federal

crimes in a federal court under the Assimilative Crimes Act, 18 U.S.C. § 13, and

the Indian Major Crimes Act, 18 U.S.C. § 1153. Although the crimes of

conviction were defined under state law, prosecution under the Assimilative

Crimes Act is not intended to enforce state law, but to enforce federal law that

assimilates a state statute. See United States v. Sain, 795 F.2d 888, 891 (10th Cir.


                                         -6-
1986). Moreover, we have previously held that the guidelines apply to cases

brought under the Assimilative Crimes Act, provided that “the sentence imposed

may not exceed any maximum sentence and may not fall below any mandatory

minimum sentence that is required under the law of the state in which the crimes

occur.” United States v. Garcia, 893 F.2d 250, 251-52 (10th Cir. 1989); accord

United States v. Kaneakua, 105 F.3d 463, 466 (9th Cir. 1997); United States v.

Coleman, 38 F.3d 856, 859 (7th Cir. 1994); see also 18 U.S.C. § 3551(a). 5

Accordingly, we conclude that the district court did not err when it imposed

sentence according to federal sentencing guidelines.

      AFFIRMED.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




      5
       On November 29, 1990, Congress amended 18 U.S.C. § 3551(a) so that the
Assimilative Crimes Act and the Indian Major Crimes Act are now expressly
included in that section’s purview, and the sentencing guidelines are expressly
applied to defendants convicted under those provisions. See United States v.
Thomas, 68 F.3d 392, 394 (10th Cir. 1995); cf. United States v. Bear, 932 F.2d
1279, 1282 n.1 (9th Cir. 1990) (noting that its decision applied the law in effect at
the time of sentencing and, hence, did not consider the effect of the 1990
amendment to § 3551(a), by which “Congress has made the Guidelines applicable
to those convicted pursuant to the Indian Major Crimes Act”).

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