UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5685

HEATHER M. CENTNER,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, District Judge.
(CR-95-8-7-BR)

Argued: March 7, 1997

Decided: June 17, 1997

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: George Alan DuBois, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant. John Samuel Bowler, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.
ON BRIEF: Janice McKenzie Cole, United States Attorney, Raleigh,
North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Heather Centner pled guilty to two counts of knowingly and will-
fully causing her two daughters to be in a place where they could be
abused. These counts were based on violations of North Carolina state
law that were assimilated into federal law because the abuse took
place at a Marine Corps base. Centner appeals her sentence. Although
no sentencing guideline directly covers the offense to which Centner
pled guilty, she claims that the court should have applied the guide-
line for misprision rather than using the guideline for aiding and abet-
ting. We find no error and affirm.

I.

In July 1994 Centner and her two daughters, Jennifer Centner (3
years old) and Brianne Sweet (15 months), moved into the barracks
room of Corporal Ernest Flores, with whom Centner had a romantic
relationship. Flores lived at Camp Lejeune, a Marine Corps base in
North Carolina, and was not allowed to have anyone living with him
in the barracks. Centner and her daughters managed to keep their
presence a secret until September 6, 1994, when they were discovered
by agents of the Naval Criminal Investigative Service (NCIS).

The NCIS had been tipped off by a source who had also reported
seeing suspicious bruises on the two girls. When the agents arrived
at the barracks, they persuaded Centner to allow her daughters to
undergo medical examinations at a local hospital. The examinations
revealed that both children had numerous bruises, contusions, abra-
sions, and pattern marks. Brianne had a belt mark across her buttocks,
and Jennifer appeared to have a cigarette burn on the inside of her
knee. Colposcopic examinations revealed that both girls had been
anally penetrated. They were immediately taken into protective cus-
tody and placed in a foster home.

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On September 6, the first day of the investigation, Centner told the
NCIS agents that she was responsible for all of the girls' injuries.
About one week later, however, she recanted and claimed that Flores
had committed the abuse. Flores initially denied abusing the girls but
later confessed to hitting them. He claimed, however, that Centner
had also taken part in the abuse. At an interview in late October Cent-
ner admitted to knowing that the girls had been anally penetrated.

Flores was court-martialed and convicted of abuse. He received an
eight-year sentence, but only 14 months had to be served in custody.
Centner was indicted on four counts in federal court. Counts 1 and 2
charged her with "knowingly and willfully caus[ing]" each daughter
"to be in a place whereby the child could be abused, to wit: the child
was placed in the barracks room of Corporal Ernest S. Flores, who
caused physical injury to the child." These counts were brought under
N.C. Gen. Stat. § 14-316.1, which was assimilated into federal juris-
diction under 18 U.S.C. § 13. Counts 3 and 4 charged Centner with
inflicting physical injury on her daughters in violation of N.C. Gen.
Stat. § 14-318.2.

Centner pled guilty to counts 1 and 2, and counts 3 and 4 were dis-
missed. The primary issue at sentencing was what guideline should
apply. The government and the probation officer recommended that
the most analogous crime would be aiding and abetting aggravated
assault and that therefore U.S.S.G. §§ 2X2.1 and 2A2.2 should apply.
Centner argued that the crime of misprision of a felony was more
analogous or, in the alternative, that the catch-all sentencing provi-
sion, 18 U.S.C. § 3553(b), should apply. The district court decided to
use the guideline for aiding and abetting aggravated assault and sen-
tenced Centner to 41 months of imprisonment. Centner appeals.

II.

Centner pled guilty to two violations of N.C. Gen. Stat § 14-316.1,
which provides:

          Any person . . . who knowingly or willfully causes, encour-
          ages, or aids any juvenile . . . to be in a place or condition,
          or to commit any act whereby the juvenile could be adjudi-

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         cated delinquent, undisciplined, abused, or neglected . . .
         shall be guilty of a misdemeanor.1

According to N.C. Gen. Stat. § 14-3 the maximum prison term for
each count is two years.2

In order to enable federal authorities to prosecute for offenses that
are committed on federal lands and for which there are no federal
criminal statutes on point, the Assimilative Crimes Act (ACA) incor-
porates the substantive criminal law of the underlying state into fed-
eral criminal law and authorizes the prosecution of offenders in
federal courts under such state laws. The relevant section of the ACA,
18 U.S.C. § 13(a), provides that:

         Whoever within or upon [federal lands] is guilty of an act
         or omission which, although not punishable by an act of
         Congress, would be punishable if committed or omitted
         within the jurisdiction of the State . . . 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.

We have interpreted the "like punishment" requirement to "mandate[ ]
that federal court sentences for assimilated crimes must fall within the
minimum and maximum terms established by state law." United
States v. Young, 916 F.2d 147, 150 (4th Cir. 1990). While keeping
within this limit, however, a district court must rely primarily on the
Sentencing Guidelines to determine the sentence, even for offenses
assimilated under 18 U.S.C. § 13. See 18 U.S.C. § 3551(a); United
States v. Harris, 27 F.3d 111, 115 (4th Cir. 1994) (affirming that the
sentencing court "must adhere to the most analogous offense guide-
line" for convictions under 18 U.S.C. § 13).
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1 Violations of section 14-316.1 were reclassified as Class 1 misdemea-
nors for those crimes committed after October 1, 1994. See 1993 N.C.
Sess. Laws 539; 1994 N.C. Extra Sess. Laws 24.
2 This section was amended in 1993, but the amendment only applies
to crimes committed after October 1, 1994. See 1993 N.C. Sess. Laws
538; 1994 N.C. Extra Sess. Laws 24.

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The Sentencing Guidelines do not provide a specific guideline for
the crime to which Centner pled guilty.3 Section 2X5.1 of the Guide-
lines directs that "[i]f the offense is a felony or Class A misdemeanor
for which no guideline expressly has been promulgated, apply the
most analogous offense guideline." The probation officer in charge of
preparing Centner's presentence report concluded that U.S.S.G.
§ 2X2.1, which covers aiding and abetting, was the most analogous
guideline for Centner's offense. Section 2X2.1 instructs that the
offense level for aiding and abetting shall be the same as the offense
level for the underlying offense. The probation officer concluded that
the underlying offense was aggravated assault and recommended that
the guideline for that offense (§ 2A2.2) be applied to both of Cent-
ner's crimes. The district court concurred in this analysis.

Centner contends that the district court erred in applying the guide-
line for aiding and abetting. Centner argues that a conviction for aid-
ing or abetting requires the same mens rea as the crime itself; the
aider and abettor must have the same intent as the perpetrator to see
the crime committed. See United States v. Valencia, 907 F.2d 671,
680 (7th Cir. 1990) ("The state of mind required for conviction as an
aider and abettor is the same state of mind as required for the princi-
pal offense."). Centner was convicted, however, of knowingly and
willfully causing her daughters to be in a place where they could be
abused. Centner argues that N.C. Gen. Stat. § 14-316.1 does not
require any intent that the children be abused. Since aiding and abet-
ting does require such intent, Centner claims that it is not analogous.
Instead, Centner argues that the guideline for misprision of a felony,
U.S.S.G. § 2X4.1, should have been applied. Alternatively, Centner
contends that no guideline is analogous and therefore the catch-all
provisions in 18 U.S.C. § 3553(b) should have been applied.

"The selection of an analogous Guideline where no specific Guide-
line exists is an application of the Sentencing Guidelines, which is
reviewed de novo." United States v. Merino , 44 F.3d 749, 754 (9th
Cir. 1994). We conclude that the district court's use of the aiding and
abetting guideline for aggravated assault was not erroneous. Accord-
ing to the indictment, Centner was charged with"knowingly and will-
fully caus[ing her children] to be in a place whereby the child[ren]
_________________________________________________________________
3 The 1994 Sentencing Guidelines were used in this case.

                    5
could be abused, to wit: the child[ren were] placed in the barracks
room of Corporal Ernest S. Flores, who caused physical injury to the
child[ren]." It is somewhat unclear what the "could" in the indictment
means: it could mean that there was only a possibility that they would
be abused, or it could mean that Centner enabled Flores to abuse
them. Under either reading, however, Centner knew and intended that
her children would be in a position where they might be abused, mak-
ing her at least reckless as to their fate.4 Although this is a somewhat
weaker mens rea than actual intent to place the children in a situation
where they would be abused, it is close enough to make the aiding and
abetting guideline (for aggravated assault) analogous. Cf. United
States v. Terry, 86 F.3d 353, 358 (4th Cir. 1996) ("We recognize that
the conduct described in the indictment does not match the Guide-
lines' definition . . . perfectly, but a perfect match is not required.").
Misprision of a felony, on the other hand, only requires that one take
an affirmative step to conceal a crime that has already been commit-
ted. See 18 U.S.C. § 4 (prohibiting those "having knowledge of the
actual commission of a felony" from "conceal[ing] and . . . not as
soon as possible mak[ing] known the same to some judge or other
person"). The Fifth Circuit noted in United States v. Godbolt, 54 F.3d
232, 234 (5th Cir. 1995), that the guideline for misprision, U.S.S.G.
§ 2X4.1, "presupposes a defendant's lack of involvement in the
underlying offense." Centner, however, became involved in the
underlying offense by knowingly and willfully placing her children in
a position of danger. Her intentional actions which created the danger
are much different than an attempt to conceal a crime which has
already been committed. It was therefore appropriate for the court to
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4 The government points to evidence that Centner actually abused her
children to show the requisite intent. However, Section 1B1.2(a) of the
Guidelines requires a court to "[d]etermine the offense guideline section
. . . most applicable to the offense of conviction (i.e., the offense conduct
charged in the count of the indictment or information of which the defen-
dant was convicted)." Thus, when a defendant has pled guilty, the court
can only base its choice of guideline on "the offense of conviction, facts
alleged in the information or indictment, and formal stipulations to facts
establishing a more severe offense." United States v. McCall, 915 F.2d
811, 815 (2d Cir. 1990). There were no stipulations of fact in this case.

                     6
apply the guidelines for aiding and abetting aggravated assault
(U.S.S.G. §§ 2X2.1 and 2A2.2).5

Centner argues in the alternative that none of the guidelines are
sufficiently analogous and therefore the catch-all provision of 18
U.S.C. § 3553(b) should apply. As Centner recognizes, however,
U.S.S.G. § 2X5.1 says first that if the offense is one "for which no
guideline expressly has been promulgated, apply the most analogous
offense guideline." Only if there is not a "sufficiently analogous"
guideline does § 3553(b) apply. As we concluded above, U.S.S.G.
§§ 2X2.1 and 2A2.2 are sufficiently analogous to warrant their appli-
cation to Centner's offense.6

Thus, we conclude that the district court's sentence met the two
necessary criteria: it chose a sufficiently analogous guideline, and it
kept within the state minimum and maximum penalties for the under-
lying crime. Centner's sentence is therefore

AFFIRMED.
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5 At oral argument, we questioned whether the probation officer had
correctly concluded that aggravated assault, rather than simple assault,
was the properly analogous underlying crime. Centner did not raise this
issue below, however, so we review it only for plain error. See United
States v. Robinson, 86 F.3d 1197, 1199 (D.C. Cir. 1996). Although the
probation officer did not explain his choice, we find that there is suffi-
cient ground to support it. The indictment said that each child was
abused and suffered physical injury. Because Centner pled guilty to these
allegations, we do not think it was wrong for the district court to follow
the probation officer's recommendation and to apply the guideline for
aggravated assault. In any event, we find no plain error.

6 Moreover, even if the district court would have applied § 3553(b),
that section requires that "[i]n the absence of an applicable sentencing
guideline . . . , the court shall also have due regard for the relationship
of the sentence imposed to sentences prescribed by guidelines applicable
to similar offenses and offenders." 18 U.S.C.§ 3553(b).




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