                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               December 22, 2006
                               No. 06-12550
                                                             THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                    D. C. Docket No. 05-00131-CR-3-MCR

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                    versus

BRAXTON HAROLD YATES, III,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       _________________________

                             (December 22, 2006)

Before BIRCH, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Braxton Harold Yates, III, appeals his sentence for driving under the
influence in the Gulf Islands National Seashore. He pleaded guilty to an offense

under Florida law and was sentenced to 18 months of imprisonment. Yates argues

that he should have been charged instead with a violation of a federal regulation,

and his term of imprisonment should not exceed six months. 36 C.F.R. §§ 1.3(a),

4.23. The government agrees. We vacate Yates’s sentence and remand for

resentencing.

                               I. BACKGROUND

      On October 9, 2005, Yates was arrested for driving under the influence of

alcohol in the Gulf Islands National Seashore, a federal enclave located in the

State of Florida. A National Park Service ranger observed a white van in the park

after the park had closed. The driver of the van was later identified as Yates. The

ranger advised Yates and his companion that the park was closed, and noticed that

Yates exhibited signs of intoxication. Yates consented to a search of his van, and

the ranger found two empty bottles and one empty can of beer, along with four

sealed cans and at least 13 sealed bottles. Yates then agreed to undergo a series of

field sobriety maneuvers, during which the ranger observed numerous signs of

impairment. Yates consented to a portable breath test, but failed to produce a

sufficient volume of air to generate a reading. When Yates ignored two requests

to put his hands behind his back, the ranger and an accompanying police officer

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attempted to grab his arms. An extended struggle ensued before the two men were

able to handcuff Yates. They transported Yates to jail, where he provided a breath

sample that revealed a blood alcohol level between .156 and .159.

      Yates was indicted under the Assimilative Crimes Act (the Act), 18 U.S.C. §

13, for violating Florida Statute 316.193(b). The Act provides for the assimilation

of state law to federal enclaves when no “enactment of Congress” criminalizes an

act proscribed by the law of the state in which the enclave is located. Although 36

C.F.R. section 4.23 criminalizes driving under the influence in national parks, the

government argued that assimilation was proper because Florida law, unlike

section 4.23, provides increased penalties for recidivist drunk drivers like Yates,

who had been twice convicted of drunk driving. Yates acknowledged during his

plea colloquy that, because this was his third conviction, his maximum possible

sentence under Florida law was five years of imprisonment. He pleaded guilty to

the lone count in the indictment and challenged neither the indictment nor the

jurisdiction of the court during the proceedings.

      Yates later filed a written objection to the pre-sentence investigation report,

which stated that the maximum possible term of imprisonment for Yates was five

years. Yates argued that the Act did not grant the court jurisdiction over a

violation of Florida state law and, because section 4.23 controlled, his maximum

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possible term of imprisonment was only six months. See 36 C.F.R. § 1.3(a). The

government responded that the Act assimilated Florida law because Yates was

charged not with driving under the influence, but with driving under the influence

after having been convicted of that charge on two earlier occasions. The district

court agreed with the government and imposed a sentence of 18 months of

imprisonment.

      Yates was imprisoned in June 2006. On September 22, 2006, Yates filed a

motion for release on bond pending appeal. 18 U.S.C. § 3143(b)(B)(iv). He

argued that there was a substantial likelihood this Court would find that the district

court had jurisdiction only over a violation of section 4.23, and thus that his

maximum possible term of imprisonment was six months. The district court

granted the motion and ordered Yates released on December 15, 2006, six months

after the date of his imprisonment, unless this Court issued a decision in the

interim.

                          II. STANDARD OF REVIEW

      Whether a district court had subject matter jurisdiction under the

Assimilative Crimes Act may be challenged at any time and is a question of law

subject to de novo review. United States v. Perez, 956 F.2d 1098, 1101 (11th Cir.

1992).

                                          4
                                 III. DISCUSSION

      Yates argues that the Assimilative Crimes Act did not grant the district court

jurisdiction over a violation of Florida law. The Act gives federal district courts

jurisdiction over violations of state law when an enactment of Congress does not

address the conduct in question:

      Whoever within or upon any of the places now existing or hereafter
      reserved or acquired as provided in section 7 of this title, or on,
      above, or below any portion of the territorial sea of the United States
      not within the jurisdiction of any State, Commonwealth, territory,
      possession, or district 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). The government confesses error.

      In making this confession, the government necessarily concedes two things.

First, it concedes that section 4.23, a federal regulation, qualifies as an “enactment

of Congress” within the meaning of the Act. If section 4.23 is not an “enactment

of Congress” that proscribes the same conduct Florida Statute 316.193 proscribes,

Florida law would have to be assimilated. This concession was understandable.

Every court to have decided the issue has concluded that federal regulations are

“enactment[s] of Congress” within the meaning of the Act. See United States v.

                                          5
Fox, 60 F.3d 181 (4th Cir. 1995); United States v. Hall, 979 F.2d 320 (3rd Cir.

1992); United States v. Palmer, 956 F.2d 189 (9th Cir. 1992); cf. United States v.

Brown, 364 F.3d 1266 (11th Cir. 2004).

        Second, the government concedes what had been the point of contention in

the district court: the increased penalties Florida provides for recidivist drunk

driving do not mean Florida law punishes conduct different from the conduct

proscribed by section 4.23. We agree. The Supreme Court of the United States

has held that “the Act will not apply where both state and federal statutes seek to

punish approximately the same wrongful behavior...or where differences amount

only to those of name, definitional language, or punishment.” United States v.

Lewis, 523 U.S. 155, 165, 118 S. Ct. 1135, 1142 (1998). Section 4.23 provides

for comprehensive and detailed regulation of drunk driving in national parks. It

defines the offense, delineates the tests for impairment, and, in section 1.3,

provides punishment. When federal statutes “reveal an intent to occupy so much

of a field as would exclude use of the particular state statute at issue,” such as

“where Congress has covered the field with uniform federal legislation,”

assimilation is not proper. Id. at 164-65, 118 S. Ct. at 1141 (internal quote and

citation omitted). Yates should have been charged with a violation of section

4.23.

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                               IV. CONCLUSION

      Yates’s sentence is vacated, and the matter is remanded to the district court

for sentencing consistent with this opinion.

      VACATED and REMANDED.




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